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The professions have received a ‘message’ from the Lord Chief Justice reacting to the changing situation relating to the spread of the virus and the justice system.

The full message can be found here.

Perhaps the headline announcement is that there will be no new trials starting for the foreseeable future.  While this may not affect those who wait for trials on bail, it will be of particular concern for those who are in custody.

We will wait and see what the court proposals are for dealing with issues such as bail and custody time limits applications.

Contact the fee earner dealing with your case if you have any questions.

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Derby criminal law solicitor Nick Wright attended a telephone conference of Derbyshire’s Criminal Justice Board on 18 March 2020.

This was solely in respect of contingency plans for how to deal with the Covid-19 virus.  It is fair to say that the reaction to the situation by all agencies is fluid bearing in mind the change in government response to the pandemic and how that can affect staff.

Many agencies will have to change what they do as different numbers of staff are unable to come to work or have to work from home.

Agencies have been encouraged to send in their contingency plans to the Criminal Justice Board and they will be distributed them along with other news as necessary.

From the Board’s point of view the following is known:

The Police

The police have been working through worse case scenarios including if they have a 50% absence of staff.  That is on the basis that some departments can operate at 50% staffing levels, leaving other staff to be moved to other duties.  The police have considered what is a critical function, necessary or desirable.  Bearing in mind custody time limits, what’s happening in custody, etc, they are being flexible.

The police have noticed a current decrease in request for police services.

We are told that custody staff know what to do with suspected cases of the virus.  Health will come first.  Cases will be risk assessed to see if the person actually needs to be in custody.  Defence practitioners will be notified of suspected cases.  Safety kit is present in the custody areas and will be provided for defence representatives.  I am told there are masks and hand sanitising gel!!  Essentially the custody plan will take account of anybody visiting.

Courts

The courts have asked for prior notification from the police of defendants with the virus or suspected to have it before being passed to GEO Amey to see if they are going to be accepted at court.

The court, bearing in mind its statutory duty to ensure health and a safe place to work, are carrying out further risk assessments.  Larger court rooms will be used if possible so as to provide for greater distance between individuals in the room.

If anybody arrives at court showing symptoms of the virus, they will be turned away and the case adjourned.

The court is looking at what can be done via video or phone.  Some court staff will apparently be at home for 12 weeks.

Defence practitioners are encouraged to talk to the court in advance, e.g. if it is known that a case will be guilty plea, or even a not guilty plea, particularly for summary only matters, then the case can be done without any attendance at court, so reducing footfall in court and therefore risk.

The court is looking at using Skype including for magistrates, defence lawyers, etc.  The Crown Prosecution Service have some technical issues with Skype.  Some legislation (no detail yet) was passed on 17 March to allow hearings to be done by phone.  We will send out more information as and when we get it.  But it is hoped to be possible to plead guilty or not guilty by phone.  Probation Fast Delivery Report interviews can be done by phone.

Some Magistrates’ trials will be adjourned at short notice because of court staff going off sick, etc, and the court having insufficient staff to man the trial courts.  At this stage not all trials have been taken out of the list, only some.

Risk assessments are being done at each court centre.

For example, two trials at Derby Crown Court on 17 March were adjourned with custody time limits extended because juries, when asked, were not prepared to sit.  The court is managing the situation on a case by case basis.  CPS are liaising with resident judges.  So plans are fluid.

The Crown Court is otherwise running normally with the exception of trials anticipated to last more than three days.  The Lord Chancellor has issued a statement which is available online.

CPS say that they are having problems getting medical statements for cases.

There is now a national steer for how the courts are going to operate.

It is possible that all custody hearings will be done by Skype.  Practitioners are encouraged to ensure that their laptops are set up for Skype to work.

The courts even now can’t run anything near to full capacity so priority is to be given to remand courts and family cases.

Trials are going to be adjourned to a minimum of three months ahead if on bail.

The Bar has called for 30 day suspension of all ‘in person’ hearings but has stated that it will not be a breach of their rules if they don’t go in person to court because they are self-isolating.  Therefore, there is a perceived risk that the whole system could grind to a halt.

The courts are looking at seating arrangements, hand sanitiser availability at court, etc.  National updates all the time but efforts will be made to ensure that people sit at least 6ft 6ins apart.

Unsurprisingly, if staff fail to turn up on one particular day, e.g. for GAP, NGAP or Domestic Abuse Courts, the court will simply have to adjourn.  If there is prior notice, then the court will look at re-bailing people beforehand.

Crown Prosecution Service

As you can image, the CPS are working closely with the police.  They have lots of people working from home and an increasing number of staff self-isolating overnight.  There is the potential for them to have limited numbers of lawyers who can actually present cases in court.

Witness Service

The Witness Service has concerns for a number of their volunteers who either have underlying health conditions or are over 70.  There is a risk to them because of seeing witnesses in small rooms.  The service states that there may be a point where the service is not deliverable, but until then empty court rooms will be used to allow more space between witnesses and witness service staff.  They are very aware of their statutory duty to ensure a safe place of work.

Client attendance

No medical evidence is required if defendants are self-isolating and cases will be adjourned to slightly over 14  days.

If somebody is subject to a failure to attend warrant already, the starting position is not to surrender if they have the virus or are isolating.  The defendant could notify the police of their health situation.  The police, once that it is clear that a person is self-isolating, say that the default position is that health comes first, but each case will be looked at individually.

Youth Offending Service

They are operating well so far.  They have a plan for a reduced service if necessary, e.g. dealing with high risk cases only.

Prisons

The situation is being managed nationally. They expect to be in a serious position soon because of loss of staff to the illness.  Therefore, they will focus on the basics, feeding prisoners, keeping them alive.  Facilities will be stripped away as the situation gets worse.  Video link facilities will go early and quickly followed by legal visits.  Each prison will be different.

The prison is to tell the Criminal Justice Board of any changes and these will be circulated.

If the prison is in a position where it has insufficient staff to man video link hearings, the court acknowledges that it may have limited powers to further remand, although we are perhaps entering uncharted territory.

There will be a further update in about two weeks’ time.  Overall, there is a lot of vagueness on how the system will adapt to the conditions; and organisations are trying to plan.

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The Ministry of Justice is consulting on some minor tweaks to the current legal aid payments for Crown Court litigation and advocacy. The full consultation and supporting documentation can be found here.

Partner and solicitor advocate Andrew Wesley was one of only 46 solicitors who chose to take part in seven focus groups around the country. At the Nottingham meeting, several firms were represented by experienced practitioners, but many firms did not send a representative and their voices were not heard.

33 barristers took part in 4 similar focus groups and expressed their opinions on a range of matters relevant to the consultation. Unfortunately, and perhaps unsurprisingly, they made a case for an increase in fees based on the inadequacy of preparation by solicitors in relation to a whole range of issues.

The general tone of their feedback was that ‘good solicitors’ (or litigators) were few and far between and the independent bar were having to shoulder the burden of what had traditionally been areas for solicitors.

Solicitors criticised by the Bar

The first criticism came within the context of cracked trials, where the work undertaken by more junior counsel was said to be ‘front-loaded’ in terms of the duration of a case, and ‘included litigation aspects’. A damning conclusion was offered that ‘poor quality [and] limited solicitor work was said to drive front loading’.

A second criticism relates to the time spent analysing unused material. This was traditionally a job carried out by the solicitor or litigator who would request the appropriate material and then consider it. Defence statements would be drafted by the solicitor in an attempt to secure disclosure of this additional material.

Unfortunately, last year one barrister reported ‘We’re doing solicitors’ jobs for them as well because they don’t send along their support services, and then we have to do all the returns as well. We have to email people in the middle of the night to tell them what’s been going on during the day. It’s very time consuming.’

This appears to be a widely held view as ‘barrister participants reported that previously solicitors did a thorough job examining the unused material and provided the barristers with details of the areas that they needed to look at. However increasingly, in their view due to financial pressures, solicitors were doing this less and less and leaving it to the barristers.’

Are there any good solicitors left?

The barristers surveyed were able to identify ‘good solicitors’ who still undertook this work, but they are, apparently, few and far between. In all four barrister focus groups the view was expressed that unused was not being considered by solicitors as it should be. Barristers said that ‘this was caused by solicitors being “so overburdened with work” and having so much pressure to make turnover”.

Expanding further, counsel offered this opinion – ‘[Solicitors] earn so little in the magistrates’ court that the litigators’ fees for these cases are just a sort of bounty for them. They don;t do any work on them. It’s those fees that allow them to keep their practices running, so they just punt it all off to the barristers who then have to do all the work on it.’

Unsurprisingly, solicitor participants stated that they did review unused material. It was often a key part of the case and a dereliction of their professional duties if they did not. This may be a result of only ‘good solicitors’ choosing to take part in the consultation exercise.

VHS Fletchers’ attitude to Crown Court cases has not changed. We have Crown Court preparation undertaken by dedicated Crown Court litigators, reflecting the fact that the preparation of Crown Court cases involves a particular skill set. Our litigators attend court, whether in support of independent counsel of in-house barristers of solicitor advocates.

Other local firms have adopted the same attitude, and choose to employ litigators or send solicitors in support and who properly prepare cases, whether for trial or plea.

Ministry of Justice presented with incorrect impression?

However, the reality remains that the barristers surveyed are either misrepresenting the lack of work that solicitors undertake on cases, or they are telling the truth about a significant number of firms. If it is the latter, the Ministry of Justice is getting a skewed version of the professions, but will no doubt make decisions in relation to litigator and advocates’ fees accordingly.

If the truth is that across the board solicitors and litigators are doing less then why would the Ministry of Justice pay us more? If the work we as solicitors are doing is actually reducing then why would we expect to be paid more?

It seems clear that the solicitors who take part in these focus groups are the ones that do the work expected of them and within the existing fee structure. They then take the time to attend these meetings in their own time to try and encourage proper payment for work properly done.

While one effect of consultation documents such as this may be to divide the profession, counsel may be better served complaining about the lack of work being undertaken by specific firms to the firm, Legal Aid Agency or SRA, rather than arguing for a financial benefit as a result of the inaction.

We are talking about Keres & Co aren’t we?

The behaviours explained of by counsel in these focus groups appear to very much match those highlighted by the Secret Barrister by the ‘fictional’ firm Keres & Co.

Everybody knows a Keres & Co (or two) but it appears that nothing can be done about them. The activities aren’t picked up on peer review or Legal Aid Agency Audit. The SRA aren’t interested without ‘evidence’ and of course evidence coming from disgruntled clients (who may well have convictions) may not be particularly persuasive.

We have now, however, reached a point where not only are these firms taking work from those solicitors that will do the work, but are now affecting our ability as a profession to negotiate proper fee increased that reward a job well done. They have given the Independent Bar ammunition to use in an attempt to secure a greater share of the ever shrinking legal aid pot.

Tell the public what good solicitors should be doing for them?

Those ‘good solicitors’ left need to publicise what we do and work with counsel to publicise what should be expected of a litigator. This will allow clients a better insight into what their solicitor should be doing for them, improve the lot of the barrister, and help secure a financial settlement that is fair to both halves of the profession.

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Circumstantial evidence is widely misunderstood.  Many people cannot understand how a case can be advanced without primary evidence of wrongdoing.

To illustrate this, we can use two examples relating to burglary.

Burglary can be committed in quite a few different ways, but the most common allegation is that a person entered a building as a trespasser and stole something that did not belong to them.

Scenario 1:

David breaks into a home.  He is seen by a neighbour who calls the police. When the police arrive they arrest David inside the house, he has jewellery in his bag and was intent on stealing more valuables.

This is a classic case of burglary, with direct evidence of David being in the property and having stolen something.

Scenario 2:

A neighbour hears a house alarm and goes to investigate. Upon seeing a man, David, acting suspiciously further down the street.  The neighbour apprehends the man. When the police arrive, they discover that David has jewellery which is traced back to a local house that has been burgled.

In this case, there is no direct evidence that David entered the property, which is a vital element of the offence of burglary. However, his presence in the vicinity and possession of the stolen property (referred to as ‘recent possession’ in law) is strong circumstantial evidence of David having entered the property. How otherwise did he come into possession of the jewellery?  There may be other reasons, but that will be something for David to explain when interviewed by the police).

In law, circumstantial evidence can be explained in this way:

“A circumstantial case is one which depends for its cogency on the unlikelihood of coincidence: circumstantial evidence works by cumulatively, in geometrical progression, eliminating other possibilities”.

The prosecution seeks to prove separate events and circumstances which can be explained rationally only by the guilt of the defendant.

Those circumstances can include opportunity, proximity to the critical events, communications between participants, scientific evidence and motive.

The subsequent conduct of the defendant may also furnish evidence of guilt, for example evidence of flight, fabrication or suppression of evidence, telling lies or unexplained possession of recently stolen property.

The question for the jury is whether the facts as they find them to be drive them to the conclusion, so that they are sure, that the defendant is guilty (McGreevy v DPP [1973] 1 WLR 276).

Some degree of caution must however be exercised. It has been held that circumstantial evidence must always be:

 “…narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. …It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”

(Teper [1952] UKPC 15).

Teper and McGreevy were considered in Kelly [2015] EWCA Crim 817 in which Pitchford LJ said:

“The risk of injustice that a circumstantial evidence direction is designed to confront is that (1) speculation might become a substitute for the drawing of a sure inference of guilt and (2) the jury will neglect to take account of evidence that, if accepted, tends to diminish or even to exclude the inference of guilt.

However, as the House of Lords explained in McGreevy, circumstantial evidence does not fall into any special category that requires a special direction as to the burden and standard of proof. The ultimate question for the jury is the same whether the evidence is direct or indirect: Has the prosecution proved upon all the evidence so that the jury is sure that the defendant is guilty? It is the task of the trial judge to consider how best to assist the jury to reach a true verdict according to the evidence.”

Conclusion

As can be seen from the above analysis, circumstantial evidence can be powerful and compelling evidence against a person accused of criminal activity, but it must always be analysed with the utmost care.

As experts in criminal law, we are acutely aware of the dangers of circumstantial evidence and take care to ensure its relevance is appropriately understood and not overestimated.

Instruct an expert in criminal law

Seeking legal advice at the earliest opportunity will allow us to provide advice to you about how the evidence in a case fits together.

If you are arrested or know that the police wish to speak to you about any criminal allegation make sure you insist on your right to free and independent legal advice.

The advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.

Alternatively you can contact us using the form below.

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Many professionals are held by their regulators to a higher standard than other members of the public. Conduct which may fall well short of being criminal in nature may nonetheless excite the interest of a regulator, with the potential for censure.

In the most recent case of Diggins v Bar Standards Board [2020] EWHC 467 (Admin), a barrister failed in his challenge to a sanction being imposed in respect to an unpleasant social media post.

No ‘second bite of the cherry’

The court emphasised that an appeal was not a de novo exercise, allowing for another chance to litigate the same points in the hope of a different finding.

The court held:

“There is another strand to the self-restraint required of an appeal court that is relevant here. This is an appeal against a professional disciplinary Panel.  Where the Court considers on appeal a decision of a profession’s regulatory or disciplinary body it:

“…will place weight on the expertise brought to bear in evaluating how best the needs of the profession and the public should be protected” (Council for the Regulation of Healthcare Professionals v General Medical Council [2005] EWCA Civ 1356 [2005] 1 WLR 717 [78]).

In the context of sanctions imposed by regulators of the legal profession, the Court will keep in mind that the tribunal “.. comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are J required to deal with defaulting solicitors and to protect the public interest.

Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal.

Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere.””

This part of the judgment is a salutary reminder that it is all essential to get things right at the first hearing. Any professional who faces regulatory proceedings should take particular care to ensure that the solicitors and barristers instructed are sufficiently expert in this field of law.

Right to a private life?

The central ground of challenge was that the regulator had no jurisdiction to deal with disputes of this nature, with Diggins arguing that:

“…participation in a “twitter spat” was an aspect of his private life which, on the proper interpretation of the BSB’s own rules and guidance and/or as a matter of human rights law, falls wholly outside the proper scope of professional regulation.”

The court emphasised that the regulators own guidance makes very clear that transgressions in a professional’s private life may be considered. The court went on to reject a large number of ECHR human rights challenges.

Rather tellingly the court held:

“…[caselaw does not] provide any support for the further argument advanced to me by the appellant, that the Panel could not properly find against him because “Twitter is famously rude and offensive and complaining of that is like going to a Motorhead concert and complaining it is too loud”.

It is a notorious fact that many on Twitter use rude and offensive language, indeed that some engage in harassment of others, or wounding “pile-ons”.

But I have no evidence, nor is it a matter of common knowledge, that everybody on Twitter behaves in these ways.

Even if that was so, a descriptive norm of that kind could not confer a right on any individual user to post rude or offensive messages. If the argument is that every Twitter user makes a voluntary submission to behaviour of that kind, no such argument was advanced below, and I consider it to be untenable.

I see no evidential or other basis for concluding that all Twitter users consent to being treated abusively or offensively.”

Conclusion

In all probability, we have not seen the last of these challenges to the jurisdiction of a regulator to police behaviour of this type. It is, however, becoming quite clear that the courts appear to take little issue with the regulatory approach, and all professionals would be wise to reflect on how they interact on social media and other platforms.

Contact a specialist regulatory solicitor

If you are facing proceedings relating to professional conduct and regulation then please contact specialist regulatory solicitor Martin Hadley.

He will be able to provide you with advice and representation at all stages of any criminal, regulatory or disciplinary matter.

Please contact Martin on 0115 9599550 or use the contact form below.