Category Archives: News

On Tuesday 24 March the resident Judge at Derby Crown Court, HHJ Shant QC, hosted a telephone conference for local practitioners.  Derby solicitor advocate William Bennett took part in the call.

Local barristers had already announced that they would not be attending court to represent clients and would only take part in hearings by way of telephone or video conferencing.

Essentially it was to obtain thoughts and opinions on the way through the crisis, taking advantage of remote working, as well as discussing how else the court was to continue dealing with cases.

The Court confirmed that the court was running at approximately 25% of the usual staffing level.  It was anticipated that the Court would open one or two courts to deal with the admin cases.  The court building would not be open to anyone other than staff.

While some chambers and the Crown Prosecution Service had the benefit of ‘proper’ video facilities, others did not have that luxury.

The Learned Judge suggested that PTPH’s could be conducted without plea, but by telephone with the defendant absent, on the basis that instructions had been taken prior to the hearing.

Although this may be possible for bail cases, it seems increasingly unlikely that any progress can be made in custody cases unless special provision is made.

Prisons are not allowing visits.  Lawyers cannot access video link facilities if the courts are closed.  ‘Informal’ video conferences with prisoners are unlikely to be permitted, even if possible.  Telephone conference would need special arrangements with the prisons.

The Judge was concerned about this lack of access to defendants, although she was perhaps the only one of other more vocal contributors who did.

In terms of custody cases, it seems that an announcement will be imminent about legislation suspending custody time limits due to the crisis.  This will be at a time when our access to those prisoners is extremely restricted.

The Judge acknowledged that as matters stand it will be impossible to undertake sentences for those in custody.  As a result, it appears that they will simply remain there.

Those needing interpreters, whether in prison or on bail, pose another unique problem for the proposed telephone hearings.  Without defendants being part of the hearing then that problem may recede.

Judges may be more prepared to offer an opinion in relation to sentence or direction of a case, but that is still being developed.

A further meeting is scheduled for 25 March and we will again publish any useful information arising from it.

If you have any queries about the conduct of your case then please contact the lawyer dealing with it.  Although our lawyers are working remotely we are aiming for business to continue as usual as far as that is possible.

Category Archives: News

Some useful information to come out of HMCTS this morning to help practitioners and defendants anticipate what is to happen in their cases:

Court plan for the coming week in the East Midlands

If you have a concern about your case then please contact the fee earner responsible.  Although staff are working remotely we intend to keep business as usual as far as possible.

Category Archives: News

A second telephone conference took place today between local practitioners, the prosecution and judiciary, led by HHJ Dickenson QC, in relation to how Nottingham Crown Court was going to respond to the continuing crisis.

The Lord Chief Justice published guidance this morning and in part this meeting was a reaction to that.  Adopting the general tone of that meeting, the Recorder of Nottingham stressed that, for example, trials would only start again in Nottingham once the safety of all those involved could be ensured.

He reflected that this might be unlikely, as staffing levels due to the virus were reduced, and it seemed likely that only the larger courts 1 to 3 would be kept in operation.  This would assist in ensuring that distance is kept, particularly if the court continues with its ‘one in one out’ approach to dealing with cases.

Although the Lord Chief Justice appears to recommend simply pushing trials back week after week until they are able to be heard, it seems unlikely that this approach will be adopted in Nottingham.  It would eventually lead to a list of hundreds of trials by the time that things return to normal, with the headache of re-listing at that stage.  As a result, cases are likely to go into a warned list.

The Judge has taken control of the standards of cleanliness within the building, and is expecting updates on the intention to clean ‘communal’ surfaces such as doors, keyboards and key pads etc every 2 hours.

Rather than prioritise trials, they would prioritise the admin list and try and deal with trials that were capable of sensible resolution.  This would mean the 90% of cases that pass through the courts.

Where possible, the court would attempt to move away from the traditional court based hearing.  Instead, hearings by way of telephone or video conferencing would be employed.  These are both capable of being recorded so can be ‘on the record’.

There was a further discussion of the 74 trials that remain listed to the end of April.  Just less than half of the defendants are in custody.  Many of them would resolve on the day of trial.

It is hoped that resolution could come sooner, particularly as any trial date is likely to be 6 months away.  Resolution might be assisted by judicial intervention, or a realistic approach from either the prosecution or defence.

It seems likely that all trials in any given week are listed on the Monday of that week in the absence of defendants to see whether they can ‘crack’ or whether they need re-listing.  Trials are to be allocated to specific Judges who will oversee progress and offer a judicial steer where appropriate.

These hearings are likely to take place as a recorded telephone conference.  If a case may be capable of resolution it can then be adjourned for the defendant to offer a view.  Negotiation between the Crown and defence is expected to take place prior to the hearing.

The point was accepted that the lay out of the cells meant that it was impossible to observe the ‘2 meter rule’ at Nottingham.  Local solicitor advocate Emma Coverley from the Johnson Partnership described how she had to make the judgement to take a colleague and interpreter into the cells that morning to meet a client face to face with the attendant risks.

HHJ Dickenson QC took all opinions on board and we can expect a protocol relevant to Nottingham to be issued within the next day or so.

It is obviously pleasing to be involved in such discussions and feel that the opinions of the defence are valued.  While some were vocal that nobody should come to court, issues such as the interests of the client, having a viable justice system at the end of this, and viable practices as well must all be in the mix.

Since finishing the meeting, there has been an announcement that HMCTS have decided that it will adjourn all bail cases except Domestic violence and those that involve children and vulnerable adults. This is likely to be the position for the coming weeks.   This in itself may dictate volume of cases before the Crown Court, the majority of defendants appearing there on bail.

If you have any queries about your case and how it may be affected then please contact the solicitor or litigator dealing with your matter.

Category Archives: News

At 2 pm on Saturday 21 March 2020, a law came into force which forced the closure of some businesses.

This law was enacted by virtue of The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (and mirror regulations that apply in Wales). The statutory instrument was made in exercise of the powers conferred by sections 45C(1), (3)(c), (4)(d), 45F(2) and 45P of the Public Health (Control of Disease) Act 1984.

Which businesses must close?

Schedule 1 of the regulations state that the following businesses must close:

Restaurants, including restaurants and dining rooms in hotels or members clubs.

Cafes, including workplace canteens, but not including—

cafes or canteens at a hospital, care home or school;

canteens at a prison or an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence;

services providing food or drink to the homeless.

Bars, including bars in hotels or members’ clubs.

Public houses.

Cinemas.

Theatres.

Nightclubs.

Bingo halls.

Concert halls.

Museums and galleries.

Casinos.

Betting shops.

Spas.

Massage parlours.

Indoor skating rinks.

Indoor fitness studios, gyms, swimming pools or other indoor leisure centres.

Other business types will likely be added to this list if the government adopts more stringent lock-down measures.

What is the penalty if businesses defy the law?

An unlimited fine can be imposed on the business and any officer of the company who has consented or connived etc. so keeping the business open (regulation 3).

There are, however, other powers available to local authorities who are in charge of policing compliance with these regulations.

Businesses that breach them will be subject to prohibition notices, and potentially unlimited fines. As a further measure, and if needed, businesses that fail to comply could also face the loss of their alcohol license. More draconian powers are also available under the Public Health (Control of Disease) Act 1984, and further powers will soon be law when the Coronavirus Bill becomes law.

In some cases, injunctive relief may be granted, the breach of which could be punished by up to 2 years imprisonment.

There are also reputational issues that need to be considered.

We can advise on all aspects of criminal and regulatory law, if any business is uncertain as to its legal obligations during this worrying time, please do not hesitate to get in touch with us.

How can we help?

Breach of this legislation is likely to be treated seriously as it is designed to avert a national crisis.

If you are arrested or know that the police wish to speak to you about an 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.

Category Archives: News

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.

Category Archives: News

A telephone conference between the Recorder of Nottingham Greg Dickinson QC and local practitioners took place today,  Matters discussed were as follows:

• Nottingham Crown Court has 74 trials listed between now and the end of April.  The majority are 3 days or less.  Of those the split is approximately 50/50 between bail and custody.
• Parties are encouraged to communicate to try and identify cases that can be compromised.
• Cases to be assigned to Judges so that they can be asked for input in appropriate cases.
• 90% of work won’t require a jury.  The court and practitioners should be concentrating on those cases that we can do.
• Use of telephone, skype and video link will be used to avoid attendance of as many people as possible if trials run.
• There was perhaps a general acceptance that trials, whatever their length, are not going to take place.
• The court is to consider the operation of a 24 hour emergency number for parties to use to notify the court if there are problems which mean hearings will not be effective to avoid unnecessary attendance of witnesses, jurors etc.
• It is envisaged that the government will enact legislation to suspend custody time limits.
• The principle concern will be the health of all participants in the court system.

If shorter trials are to continue then:

• the court will endeavour to list matters to convenience of advocates.
• the court will not bring trial matters forward without full discussion with the parties.
• consideration to be given to advocates not to have to be robed and wigged to avoid having to use the robing room.

It is likely that all cases listed for trial next week will be listed for Mention on Monday without the need for witnesses and jurors for further directions to be given.

A further meeting has been fixed for Monday 23 March to consider next steps.

Category Archives: News

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.

Category Archives: News

Practitioners and potential detainees may find this document helpful in terms of how Derbyshire police will be processing prisoners who have, or are suspected of having, the COVID-19 virus.

Derbyshire Constabulary Custody : COVID-19 Contingency Plan

How can we help?

Not much.  And we have no toilet paper stash either.

The best we can do is publish information relevant to your police investigation and court case as we find out about it.  Follow us on one of our social media feeds for up to date information.

If you have a specific query about your case, or know that you can’t make an important date due to illness, please contact your nearest office straight away.

Category Archives: News

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.

Category Archives: News

As the UK prepares to move into the ‘delay phase’, changes are expected to criminal justice procedure. So, what might be expected to change?

Criminal Investigations

In the event of any public disorder, work on low priority criminal investigations may slow or stall entirely as police resources are diverted elsewhere.

Most police custody suites hold relatively few individuals and they are generally not held in close proximity, so this should not present any particular difficulties for policing.

If police officers are off sick, capacity may be affected, and this again may impact on police work volumes.

Precautions already in place, such as not shaking hands and being extra vigilant to observe basic hygiene rules are likely to be emphasised.

Criminal Proceedings

Some criminal processes can be changed by way of secondary legislation, so it is possible that custody time limits which regulate the maximum period a person can be held in custody, might be lengthened (The Prosecution of Offences (Custody Time Limits) Regulations 1987).

Other processes will need to be changed by way of emergency legislation.

The Civil Contingencies Act 2004 does not permit changes to ‘criminal proceedings’. The term ‘criminal proceedings’ is not defined in the Act and has been the subject of intense discussion in the past (concerning terrorist provisions), but would likely be interpreted as being the point from charge.

Therefore, it is likely that the government will have to introduce further emergency legislation to deal with changes to video-link arrangements and case management, particularly as the use of juries may become too high a risk.

We are however unlikely to see the equivalent of ‘Diplock Courts’ (trial by Judge alone).

Prisons

Prisoners are held in a large population at close quarters, and this makes the prison estate a high-risk area for the spread of infection. The absence of prison staff due to illness will increase pressures further and may leave some prisons too challenging to manage.

The Secretary of State already has powers that would allow for the early release of prisoners, and this may need to happen, no matter how politically unattractive this may seem.

We will have to wait and see what proposals emerge as the coronavirus spread continues. Be assured, however, that at the forefront of our thinking will be safeguarding of fundamental rights, and we will not hesitate to challenge any processes that threaten to weaken these.

How can we help?

Not much.  And we have not toilet paper stash either.

The best we can do is publish information relevant to your police investigation and court case as we find out about it.  Follow us on one of our social media feeds for up to date information.

If you have a specific query about your case, or know that you can’t make an important date due to illness, please contact your nearest office straight away.