2 Hare Court Criminal Regulatory Newsletter
Welcome to the Summer edition of the 2 Hare Court Criminal Regulatory Newsletter.
Editor
A note from the Editor
It will come as no surprise that the impact and response to the Covid 19 pandemic dominates this edition, as it will both our personal and professional lives for some significant time to come. In this edition, David Whittaker QC and Paul Renteurs review the guidance for employers published by the HSE aimed at ensuring a safe return to work as lockdown measures are eased. Sarah Przybylska examines the state of affairs in the crown courts and current arrangements for jury trials. Tom Day looks at the impact of the pandemic on inquests, both the practical and the substantive, through his analysis of the Chief Coroner’s guidance notes. Finally, Nikita McNeill looks to the future of remote hearings and to what extent they are here to stay.
If you have any queries about any of the articles or if you would like to discuss them further please do get in contact.
If you have any queries about the 2 Hare Court Criminal Regulatory team generally please contact our Director of Clerking, Julian Campbell.
Keep well all.
The Health and Safety Executive’s Response to COVID-19
David Whittaker QC and Paul Renteurs examine the importance of new guidance for employers published by the HSE aimed at ensuring a safe return to work as lockdown measures are eased.
As non-essential retail businesses prepare to reopen in June, and yet further businesses such as hair salons, cafes and pubs consider the possibility of reopening as early as July, both employers and their employees are anxious to maintain safe working environments.
Of course, in one sense, the new and unprecedented threat to public health that COVID-19 poses does not affect the long-standing duties all employers owe to all of their employees. An employer’s duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees under section 2 of the Health and Safety at Work Act 1974, and to ensure that those affected by his work are not exposed to risks to their health and safety under section 3 of that Act, remain unchanged. But recent controversies regarding the interpretation of the law and government guidelines demonstrate all too clearly the potential for confusion and discrepant behaviour. Such stories will do nothing to reassure employers and business owners, naturally eager to begin trading again, but equally keen to ensure that they do so legally.
Fortunately, the Health and Safety Executive has produced guidance to help employers understand what steps they can take to discharge their duties under the 1974 Act. ‘Working safely during the coronavirus outbreak – a short guide’ is aimed at explaining to employers how they can go about protecting their employees from COVID-19.
The first step, it would appear from that document, is to carry out a risk assessment. Employers are instructed to identify work activity that might cause transmission of the virus, consider who amongst their workforce may be at risk, determine how likely it is that someone could be exposed and act to remove or control that risk. Whilst it is widely understood that such guidance documents are precisely that – guidance rather than law – the instruction that employers ‘must’ carry out such risk assessments leaves little scope for justifying any non-compliance. The further stipulation that employers with fewer than five employees need not write down their risk assessment (although it is noted that it ‘might help’ to do so), carries with it the corollary that those with five or more employees must record them in writing.
In considering who should go to work, the guidance echoes the emphasis placed by the government on the idea that those who can work from home should, and, if necessary, should be provided with equipment that enables them to do so, such as laptops and video conferencing facilities. Of particular note for employers in industrial and construction settings, thought should be given to the minimum number of people required to carry out tasks safely.
Planning should be put in place for workers who are shielding, and therefore cannot leave their homes, and for those who, although not shielding, are at increased risk, such as those with asthma or diabetes. Planning should also be put in place as to what to do in relation to employees who need to self-isolate.
Other practical steps such as staggering start times to avoid breach of the 2 metre rule upon entering the workplace, providing hand-washing facilities at entrances and exits, arranging work areas to keep people 2 metres apart, frequent cleaning and providing signage to remind employees of the rules are set out in detail.
In order to protect employers from being stymied in their attempts to get their businesses operating effectively again, however, there is also practical guidance offered on what steps to take in situations where, for example, it simply isn’t possible to maintain 2 metre’s distance between employees.
Interestingly, there is also an emphasis on engaging in open dialogue with employees about these measures and the risks posed by COVID-19. In a separate guidance document – ‘Talking with your workers about preventing coronavirus’ – it is stated that ‘[an employer] must consult all [his or her] workers on health and safety. It is a two-way process, allowing workers to raise concerns and influence decisions on managing health and safety’.
Whilst these guidance documents are not strictly legally binding, given the now well-known seriousness of the threat to public health posed by COVID-19, and the potentially dire consequences of failing to follow the practical advice contained within them, such a failure would be extremely difficult, if not impossible, to justify before any court that might consider such matters in the future. Reading, understanding and implementing this guidance could pay dividends in the long run.
This article is intended to be a brief introduction to this important guidance. The full text of that guidance can be found here[https://www.hse.gov.uk/news/working-safely-during-coronavirus-outbreak.htm].
COURT HEARINGS IN THE TIME OF CORONAVIRUS
The Coronavirus Act 2000 makes it possible, in theory, for the vast majority of hearings to take place by remote hearing only. The main exceptions are criminal jury trial and criminal appeal against conviction.
In practice, remote hearings have been limited for the most part to mentions designed to keep cases ticking over until the current crisis is over – or at least until lockdown relaxes further. Prison conditions and the wholesale adjournment of trials has caused an explosion in bail applications. Plea and trial preparation hearings continue but many have made little progress owing to the inability of defendants in custody to have meaningful remote conference time with their defence teams. There are few examples of defendants being sentenced following a guilty plea.
Unsurprisingly, the remote systems work better with single-defendant cases and those with fewer participants. A recent case management hearing at the First Tier Tribunal took several hours to start as the eleven participants were obliged to try three separate video-conferencing apps before one could be found that allowed all to be both seen and heard. Bandwidth is key and most hearings seem to involve frozen videos and poor quality robotic audio feeds. Nevertheless, there is a determination, in the words of one Resident Judge who will remain unnamed, “to keep buggering on” and hearings have reached a satisfactory conclusion despite interruptions by delivery men, contributions from small children determined to claim rights of audience, and the occasional need to call an opponent and put them on speakerphone to circumvent a malfunctioning internet connection.
Appeals against sentence are proceeding quite smoothly, with participants reporting that very senior judges are considerably more approachable when lounge-suited and sitting at home in front of their impressive bookshelves. As ever at the RCJ, preparation is key, and there is more need than ever to check with the office to make sure that the court has all the relevant paperwork well in advance of the hearing.
There is some cause for optimism with jury trials, which have restarted at the Central Criminal Court, Manchester Minshull Street, Cardiff, Bristol, Reading, Warwick and Winchester. The arrangement is generally that each trial requires three courtrooms, with the personnel in the trial split over two courtrooms and the third used for socially-distanced jury deliberations. At present no trial due to last longer than two weeks will commence owing to concerns about viral load in courtrooms and an unwillingness to burden jurors with lengthy court attendance during the crisis. It may be that this rule will be relaxed if the current trials go well and there is no second wave of infection. However, the logistics of socially-distancing multiple defendants and defence teams mean that multi-handed trials are unlikely to resume for some time yet. Several courts are listing all outstanding trials this month either individually or in bulk to resolve hearings. The general impression seems to be that multi-handed trials are unlikely to be possible this summer at least and cases in July and August are likely to be adjourned.
The Impact of Coronavirus on Inquests
Since the beginning of the coronavirus pandemic the Chief Coroner has issued four guidance notes (34, 35, 36 and 37). This article will focus on the impact of these guidance notes on cases which have proceeded, or will proceed, to an inquest.
Practicalities
In Guidance No. 34 the Chief Coroner adopted the position expressed by the Lord Chief Justice that no physical hearing should take place unless it is urgent and essential business and that it is safe for those involved for the hearing to take place including the ability to ensure social distancing. Further, that all hearings that can possibly take place remotely (via whatever means) should do so.
Whether a hearing can continue or not, and in what form, is a matter for the senior coroner in terms of the jurisdiction as a whole, and the coroner dealing with that specific case. The Chief Coroner expected that perhaps a limited number of short Rule 23 type hearings would be heard in the months following the beginning of the pandemic. It is acknowledged by the guidance that there will be significant numbers of adjournments.
Although the Guidance note is silent on matters of case management the recognition from the Chief Coroner that PFDs may not be produced on time will be of assistance to interested persons that may be struggling to meet deadlines for disclosure in ongoing inquests.
It is important to note, however, that this guidance is now over two months old and the time will soon come when the Chief Coroner will have to issue new and updated guidance.
Investigations
The impact of the pandemic on the operation of inquests may mean that interested parties will have to deal with less than thorough investigations into deaths when inquests are held in the near future. The Chief Coroner explicitly addressed this and advised” “We may all have to have to accept that the unprecedented situation we are in may mean it may not be possible to perform the sort of detailed death investigation process we are used to.” Specific examples are given of cases where it may not be feasible to order a post-mortem examination “on many (or indeed most) of the deaths where COVID-19 is either suspected as the cause, or where it may simply be present, or indeed where it cannot be ruled out.” Inevitably as the pressure on pathology services has been significantly higher than usual (as is evidenced by the excess deaths figures) it may also not be possible for post-mortem examinations to be carried out for all non-COVID-19 deaths where they might otherwise have been. Participants will have to be prepared for some considerable time in the future to deal with inquests in which there is no post-mortem examination or provisional cause of death expressed by a pathologist. There will, no doubt, be cases where interested persons hold different, and conflicting, views as to the medical cause of death. In these cases, without the assistance of a post-mortem examination report, the importance of careful preparation with a focus on the medical cause of death will be ever greater.
Juries
Where the death has occurred in prison or otherwise in state detention it is important to note, as Guidance No.34 reminds us, that while section 1 CJA 2009 requires coroners to open an inquest, there is no requirement to hold an inquest with a jury when the death is from natural causes, and this could include COVID-19.
Additionally section 30 of the Coronavirus Act 2000 removes the requirement for an inquest to be held with a jury if the coroner has reason to suspect the death was caused by COVID-19. Normally a death caused by a notifiable disease, such as COVID-19, requires an inquest with a jury by virtue of section 7(2)(c) of the CJA 2009.
Personal Protective Equipment (PPE)
The press widely reported the contents of Guidance No.37 when it was published on 28 April 2020 because of how it addressed the question of PPE. The Guidance is, as usual, keen to make clear that individual Coroners make judicial decisions on a case by case basis.
The Guidance notes, in relation to an otherwise natural death from the progression of COVID-19, that Regulation 3(1)(a) of the Notification of Deaths Regulations 2019 provides that there must be a report to the coroner if the disease was attributable to employment held by the deceased. As such, there may be some instances in which an otherwise natural COVID-19 death may be reported to the coroner where the virus may have been contracted in the workplace. This obviously includes many frontline NHS staff as well as other key workers.
The Guidance goes on to state that if “there is no reason to suspect that any culpable human failure contributed to the particular death, there will usually be no requirement for an investigation to be opened.”
A death must, however be investigated and must usually be the subject of an inquest if the coroner has reason to suspect that it has resulted from the effects of a naturally occurring disease process but where some human error, for example inadequate or nonexistent PPE in a workplace, contributed to death.
The particular controversy over Guidance No. 37 arose from a passage reminding Coroners that inquests are not the right forum for addressing general government or public policy regarding PPE. The guidance relies heavily upon the speech of Lord Phillips in R (Smith) v Oxfordshire Asst. Deputy Coroner [2011] 1 AC 1 at [81] to the effect that an inquest could properly consider whether a soldier had died because a flak jacket had been pierced by a sniper’s bullet, but would not “be a satisfactory tribunal for investigating whether more effective flak jackets could and should have been supplied by the Ministry of Defence.” By analogy the Chief Coroner’s guidance advises that an inquest would not be the right forum for deciding whether adequate general policies and arrangements were in place for the provision of PPE.
The Guidance does, however, go on to say that a proper investigation may require that evidence is obtained in relation to matters of policy or resourcing in a particular hospital or department (or presumably NHS trust). It follows that the provision of PPE will likely be investigated in inquests into the death of frontline healthcare workers when they are eventually held (the Guidance acknowledges that the ability to pursue such an investigation in a timely fashion may be seriously hampered by the effects of the pandemic and that coroners should be sensitive to the additional demands placed on hospitals in the meantime). It seems likely, therefore, that the investigation of these matters in an inquest may focus upon the degree to which the local hospital complied with higher level government policy on the provision of PPE.
In reality coroners will no doubt face serious challenge to attempts to limit the scope of any enquiries into the provision of PPE to a truly local (trust or hospital) level as opposed to higher level government policy and actions. There is, of course, some truth in the contention that it is impossible to consider the performance or policies of a local hospital without wider consideration of the national/governmental picture. The dividing line between local/clinical decisions and higher level policy/guidance is not a clear one (as the controversy over the discharge of COVID-19 positive patients from hospitals to care homes has revealed). As with all of the Chief Coroner’s guidance it is subject to an individual coroner’s wide discretion in the conduct of inquests. One can reasonably expect that the High Court will be reluctant to interfere with the decision of a coroner to limit the scope of an investigation in relation to PPE in line with Guidance No. 37. Accordingly, while higher level government performance and policy is unlikely to be explored in future inquests the performance and policy of local healthcare providers in relation to the provision of PPE will be the subject of serious enquiry.
Clinical Care
It should also be noted that the Chief Coroner has made clear in Guidance No. 37 that if there were reason to suspect that some failure of clinical care of the person in their final illness contributed to death, it may be necessary to have an inquest and consider the clinical care. We do not yet know how many deaths from COVID-19 will fall within that broad category of “some failure of clinical care.” Some failure of clinical care will presumably include such matters as decisions from clinicians as to admission to hospital from care homes or the community, clinical decisions as to the discharge of patients from hospital to care homes when potentially infected, the provision of care in hospitals which have had their standard operating procedures subject to upheaval, and the provision of care in intensive care units from doctors who were not formally qualified in the provision of that care.
Conclusion
The approach taken in inquests touching upon COVID-19 deaths (when they are eventually heard) where there is a suspicion of some failure of clinical care remains unclear and will require careful planning, preparation and advocacy from those representing interested persons. For those cases decisions made by the coroner at the pre-inquest review will have an extraordinary impact upon the conduct of those inquests.
The future for remote hearings
In December 2019 the backlog of criminal trials in England and Wales was 37,500 cases. Since 2016, the Ministry of Justice had been discussing, and attempting to achieve, a £1bn programme of reform to courts and tribunals in order to build “a modern system for administering justice”. It was envisioned that this would include the resolution of simple disputes online and increased digital working across both the criminal and civil courts.
When the Coronavirus pandemic closed the doors of most courts in England and Wales there was a 500% increase in audio hearings and a 340% increase in video hearings between 23 March 2020 and 6 April 2020. From 1 April 2020 to 24 April 2020 between 85 and 90 per cent of all cases in the courts were heard either by video or audio.
In the Criminal Courts this has, however, primarily meant virtual mentions, PTPHs and sentence hearings. As a result, the backlog in criminal cases is now estimated to be 40,000. Caroline Goodwin QC, the chair of the Criminal Bar Association has observed that
“Social distancing measures currently required mean that even if we opened up all of the available crown courts, we would still at best only have half of all court rooms in use for hearings…With deployment of even three-quarters of all courts for actual hearings, [it] would only take us back, at worst, to where we were at the start of the year with the backlog growing by up to 1,000 cases a month, and at best to simply maintaining the current, higher, backlog.”
Whilst announcing the latest list of courts to be reopened for socially distanced trials (taking the total to 25), the Lord Chief Justice confirmed virtual hearings will continue to play a role in fighting the backlog but did not say what role they would play:
“Reopening all of the court estate, using additional accommodation and continuing to use technology imaginatively will enable us to return to and surpass pre-lockdown volumes, helping manage the growing caseload.”
The LCJ previously told the House of Lords constitution committee that “for many types of hearings, not all” conducting it remotely was “just as good and much more convenient” would suggest that he has not tried to conduct a nine defendant mention via Skype for Business. However, he is right that for simple hearings, in particular mentions or straightforward legal applications the past three months have shown that the criminal justice system should have been making greater use of telephone or video hearings, as the civil justice system have, for years.
The High Court and Court of Appeal have both shown themselves able to function effectively through the use of remote hearings, where there are generally less parties involved and witnesses are not required. Updated protocols have emphasised that organisation and forward planning will be key; bundles and documents must be prepared and filed electronically well in advance. Yet, every hearing remains at the mercy of Wifi. From personal experience one hearing had to be adjourned on day one so that the Claimant’s counsel could relocate to their solicitor’s office, whilst on day two the Defendant’s counsel was ejected from the virtual hearing at least three times.
In the Coroner’s courts the situation has been more complex and the technology even worse. There are no current provisions, including under the Coronavirus Act 2020, for ‘virtual’ hearings within inquests. Provision can be made for the parties to attend by phone or other link but the Chief Coroner’s Guidance note Number 35 confirmed that all hearings require the physical presence of a coroner within the court. Anecdotally the practice in Coroner’s courts has been inconsistent. In some courts inquests are being adjourned indefinitely, unable to secure either evidence or attendance from NHS Trusts. In others whole inquests have been conducted with interested persons joining by telephone. Where one of the core purposes of an inquest is to allay suspicions and concerns and where it is trite that family members should be at the heart of the system, can such a hearing really allow for their effective participation? I am not aware of any Coroner’s Court with the facilities necessary to conduct an effective video hearing.
Giving evidence to the House of Lords constitution committee Professor Susskind, IT adviser to the Lord Chief Justice, said among the lessons emerging from remote hearings were that video hearings were better than audio ones, that judges found them “very tiring”, that lawyers needed to find ways to communicate during hearings, that document management systems needed improving, and that partly remote hearings were not as effective and raised questions of fairness.
With virtual hearings here to stay the effective use of remote hearings requires recognition of
when it is not appropriate to use remote hearings. There seems to be a consensus that they are not likely to be appropriate where:
- They include the involvement of vulnerable witnesses or defendants, who cannot be adequately supported.
- They include unrepresented parties or defendants, in particular where they are less likely to have the technology required to participate effectively.
- There are a large number of parties or defendants involved.
- The Court or Tribunal do not have technology or equipment of sufficient quality.
The most controversial question remains, can you or should you use virtual hearings where the hearing involves the examination and cross examination of witnesses. Criminal practitioners have always emphasised the importance of being in the same room as the witness, and of being able to see and assess their demeanour and behaviour. Professor Susskind, reported that lawyers from around the world have reported that a full-screen view of a witness brought them closer to the witness than being in the courtroom.
“What is coming through, and this is a global experience, is that many attorneys from the United States and around the world are reporting that, actually, they find video remarkably effective and they can get nearer to the whites of their eyes than in the courtroom. I don’t think we should make assumptions – clearly we need systematic data on this – that if there are questions of credibility, there is no way this can achieved through a video hearing.”
It is undeniably very different to question a witness remotely or in a virtual hearing. It is more difficult to interrupt, to control the witness and in some cases to maintain the pressure for an effective cross examination. On the other side, defendants and witnesses may find that with a web-cam in their face there is nowhere to hide; every hesitation, tick or misspeak is loud and clear. Video links and video evidence are not new and have been common for child witnesses, vulnerable witnesses and in sexual offences for a long time. Advocates have developed the skills and the means to adapt. The question is whether a wholly remote jury trial will ever be suitable or appropriate. JUSTICE has carried out three of four planned test virtual trials and report that they have
“shown promise… and suggest that many cases – civil, family or criminal – involving witness evidence could be conducted in this way. However, we recognise that some trials will not be suitable for the virtual court – such as complex, multi-party cases and where parties have vulnerabilities to which a virtual trial cannot adapt.”
The Criminal Bar Association, by contrast is starkly opposed to virtual trials. Caroline Goodwin QC has warned that remote trials do not provide a “controlled and managed” environment similar to a courtroom, leading to “far too many opportunities for outside influences to exist, which would be completely unknown to the judge…Remote hearings involving screen-only access strikes at the heart of the right to fair trial under Article 6 of the European Convention on Human Rights, which is put into play if defendants do not understand the court process or are not actively engaged.”
A Jury Trial Working Group chaired by Mr Justice Edis is looking at ways to safely resume jury trials. It remains to be seen what view it will take on virtual hearings.
With social distancing unlikely to be relaxed any time soon, those Public Inquiries which are ongoing have faced difficult decisions about if and how to continue, including whether they could or should hear witness evidence remotely.
- The Independent Inquiry into Child Sexual Abuse held two weeks of public hearings into Child Protection in Religious Organisations and Settings via Zoom. The hearing heard from individual and corporate witnesses and, generally received positive feedback from witnesses and core participants.
- The Chairman of the Manchester Arena Inquiry concluded that some but not all of the evidence for that inquiry would not suitable for a video hearing. He adjourned hearings to the provisional date of September 2020 when the situation will be reviewed. He has not ruled out the use of video link evidence and concluded that was satisfied that “it should be possible to assess credibility over a video link. The difficulties of dealing with complex evidence and documents over a video link can be overcome.”
- The Grenfell Tower Inquiry ruled out the use of virtual hearings concluding that taking evidence remotely would “be likely to reduce the effect of questioning” there was a “risk of depriving the proceedings of much of their dignity and solemnity.”
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