This note represents the CLSA’s understanding of government advice as issued. It is important to note that this is a dynamic situation and the government advice is being regularly updated. For the most recent guidance see https://www.gov.uk/government/topical-events/coronavirus-covid-19-uk-government-response
Although this document may be updated individual members and those reading this should have regard to the government’s advice primarily and then use their own judgment.
This note falls into 4 parts :
1) Current advice from the government
2) Useful steps to take
3) Practicalities and potential protocol
4) Call for government action
This document relates mainly to solicitors and firms, including sole practitioners.
1. ADVICE
A. Government Advice
The main site for all Government advice is:
https://www.gov.uk/government/topical-events/coronavirus-covid-19-uk-government-response
This provides links to other pages and should be brought to the attention of all members and staff, who should all be required to read at least the following:
• FCO Travel Advice https://www.gov.uk/guidance/travel-advice-novel-coronavirus
• NHS Advice and FAQs https://www.nhs.uk/conditions/coronavirus-covid-19/
• Prison Service : https://www.gov.uk/guidance/coronavirus-covid-19-and-prisons
• Law Society https://www.lawsociety.org.uk/support-services/advice/articles/coronavirus-advice-and-updates/
• Court Service https://www.gov.uk/guidance/coronavirus-covid-19-courts-and-tribunals-planning-and-preparation
• https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance
There is also a link to the Guidance for Employers and Businesses, be read by anyone in a line-management or supervisory role:
https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about- covid-19/guidance-for-employers-and-businesses-on-covid-19
This guidance includes:
1. Background and scope of guidance;
2. Information about the virus
3. Signs and symptoms of COVID-19
4. How COVID-19 is spread
5. Preventing spread of infection
6. How long the virus can survive
7. Guidance on facemasks
8. What to do if an employee or a member of the public becomes unwell and believe they have been exposed to COVID-19
9. Returning from travel overseas to affected areas
10. What to do if a member of staff or the public with suspected COVID-19 has recently been in your workplace
11. What to do if a member of staff or the public with confirmed COVID-19 has recently been in your workplace
12. When individuals in the workplace have had contact with a confirmed case of COVID-19
13. Certifying absence from work
14. Advice for staff returning from travel anywhere else in the world within the last 14 days
15. Handling post, packages or food from affected areas
16. Cleaning offices and public spaces where there are suspected or confirmed cases of COVID-19
17. Rubbish disposal, including tissues
B. MOJ and Government Agency Advice
The CLSA and Law Society is consulting the MOJ and related agencies (HMCTS and LAA) for guidance. There are a number of issues that are yet to be resolved :
• The increased use of video/audio conferencing for hearings and pre-trial conferences and meetings;
• The possible adjournment or cancellation of hearings (whether precautionary or due to sick staff, judges, jurors, witnesses, etc);
• Measures to ensure that current guide-times continue to be met for authorising, assessing and paying claims for Legal Aid;
• The means of effective communication of arrangements and urgent changes.
• Ongoing compliance issues (14 hours, audits, supervisor requirements)
• Prison Service : https://www.gov.uk/guidance/coronavirus-covid-19-and-prisons
• Law Society https://www.lawsociety.org.uk/support-services/advice/articles/coronavirus-advice-and-updates/
• Court Service https://www.gov.uk/guidance/coronavirus-covid-19-courts-and-tribunals-planning-and-preparation
2. USEFUL STEPS TO TAKE
A. Polices and access to advice
Firms should be establishing plans and procedures for coping with a potential Covid-19 epidemic in the UK and any government steps being taken. Any such plans will need to be incremental, envisaging contingencies in which protection measures are increased, and the plans themselves should be flexible enough that they can be revised to meet new developments as and when the government advice changes. This is like to be an ongoing occurrence over the coming weeks and months
The underlying principle should be one of precaution, whilst avoiding panic and overreaction, in order to help delay the spread of the virus and mitigate effects on firms and their staff.
Firms may choose to appoint a member of staff (or more than one) to monitor any updates to Government and other appropriate sources of advice and provide guidance to firm management and cascade to staff. This is likely to be in most firms a partner or manager but need not be.
Firms may wish to consider policies to compel people (visitors, contractors, staff and experts etc) to leave offices, if it is thought they represent a health risk, or to prohibit meetings taking place in offices. In order to ensure there is resilience in the structures, alternatives should also be nominated for anyone involved the decision-making body, in the event of the sickness or absence of any individual.
Firm owners and managers should review Business Continuity plans and if need be adapt them to meet the specific challenges of the Covid-19 epidemic. This may include:
1. arrangements for a substantial degree of homeworking,
2. options for working in shifts (for example, to enable parents to share childcare responsibilities at home in the event of school closures),
3. arrangements for rapid communication with all members and staff eg to let them know not to travel to the office or to self-isolate.
4. a careful review of what work needs to be delivered in person or in the office as opposed to that which can be delivered remotely.
5. Arrangements for how to manage large scale staff absences.
6. Plans on how to manage risks of infection
7. Plans for dealing with potential drop in volume of cases
8. Potential delays in cases which might be adjourned
9. Plans to cope with the potential illness and lack of availability for counsel, agents, and experts.
B. Finance
If there is a sustained outbreak it is likely that the epidemic will result in significant challenges within the criminal justice system, including a possible drop off in cases, delays in others and potentially the absences of key staff and workers including counsel, agents and experts. This may cause financial issues and it is vital that firms conduct detailed cash-flow and budget analyses as far is possible and be prepared to talk to their banks and creditors to seek assistance.
The Government has passed some protections for small businesses, but the detail has yet to be fully examined. Whilst some relaxation of business rates has been announced this does not appear to cover legal practices. We will be calling on the government to extend the business rate holiday announced in the budget to law firms offering legal aid and duty solicitor services. It is being suggested that the government will offer more flexible options for tax and National Insurance contributions, but much expenditure will be a contractual obligation, including the payment of staff salaries, pension contributions and other benefits, property rent and equipment-lease instalments. It is essential that firms can meet these obligations or reach agreement to postpone those they can. Where cash flow is assessed to be a potential problem, firms should consider approaching their banks to see what loan and overdraft facilities might be available. Firms might also consider approaching their landlord and other major suppliers to discuss possible arrangements.
C. Wellbeing
In addition to the physical illness, it is very possible that the impact of the Covid-19 epidemic will place a considerable amount of stress on many solicitors and legal professionals. Everyone should be alert to the signs of potential mental ill health in themselves and others and be aware of possible avenues of support. See https://www.lawsociety.org.uk/support-services/help-for-solicitors/other-support-services/ for details of support available. It is vital that members and professionals do not sacrifice their own health to prop up a failing system or put the needs to the Court, clients, experts etc above that of their own health and wellbeing.
D. Communication
Firms should now be establishing and communicating procedures and changes in routine for dealing with the Covid-19 epidemic, drawing upon the advice listed above. It may not be necessary to implement all procedures at this stage, but it is important to plan for them now. These should include :
• Self-Isolation
• Conduct risk-assessments of more vulnerable practitioners and staff, for example those who are pregnant, aged 60+ or have immunodeficiency issues or a history of respiratory illness, in order to consider planning for or advising about precautionary self-isolation.
• Advice on when and how to do it (from the NHS site);
• Arrangements for return to work, either after precautionary self-isolation or after infection; Caring for sick dependants.
• Sick Leave and Sick Pay
• Statutory and contractual obligations;
• Qualification for sick leave and sick pay when self-isolating in accordance with Government guidelines.
• Confirmation that qualification for sick leave and pay for the purposes of precautionary self-isolation should not mean that the individual cannot work when in isolation, which is different from existing sick leave provisions;
• Reviewing any employment-contract limits on the duration of sick pay;
• Implications for staff who ignore FCO advice and travel to restricted countries; Arrangements for staff prevented from returning to UK owing to newly imposed restrictions. Impact on probation periods.
• Working from Home
• Assessing or requiring staff to self-assess the arrangements necessary for homeworking; Putting technical arrangements in place now;
• Security of information when homeworking;
• Reimbursement of any costs of homeworking;
• Leave and homeworking arrangement for those caring for children, should schools/nurseries be shut;
• Arrangements for those who cannot work from home, owing to home circumstances or the nature of their job.
• Events in office and/or Attendance at External Events
o consider the precautions required for conducting events and the possibility of cancelling/postponing them; in the case of cancellation or postponement, this must include arrangements for communicating decisions and may have financial implications. Events may include, but are not limited to:
 Meetings, both internal and external, including recruitment interviews;
 Large conferences, seminars or training events;
 work-experience sessions;
 Social events.
E. Daily Routine
Firms should consider every aspect of its routine operation and be prepared to implement escalating precautionary measures. Areas for consideration include:
• Requiring all members and staff to confirm that they are and will remain compliant with the FCO travel advice and, to their knowledge, have not been in contact with anyone who has tested positive or is awaiting test results for Covid-19;
• Requiring all visitors to offices to confirm that they are at that point compliant with the FCO travel advice and, to their knowledge, have not been in contact with anyone who has tested positive or is awaiting test results for Covid-19;
• Having reception staff complete the registration of guests, rather than asking guests to use stationery themselves;
• Requiring all people entering and leaving offices to wash their hands, either in washrooms or using hand-sanitisers provided;
• Maintaining a record of anyone being in offices;
• Maintaining a record of the travel plans of members and staff;
• Reducing the number of deliveries to offices. Staff signing for receipt of deliveries;
• The frequency of cleaning doors, entry-phone/bells, lift-buttons and meeting rooms and shared equipment – for example, stationery, phones, computer keyboards and mice;
• The preparation of communal food and refreshments, including handling of crockery, cutlery and utensils;
• Discussions with contractors on their procedures – and consider postponing works; Identifying and maintaining a supply of resources:
• Sourcing sanitiser and other cleaning agents; Tissues, wipes, bins and liners;
• Hand-drying – single-use paper or fabric towels or air-drying, not multi-use towels or roller- towels.
• Planning for the decontamination of rooms in the event of a confirmed case in offices.
3. PRACTICAL ISSUES AND PROTOCOLS
As we move from the ‘contain’ phase of the outbreak to one of ‘delay’ the government has begun to use some ‘social distancing’ measures to try and slow the progress of the outbreak. Following the most recent government announcements this includes asking anyone with a cough or fever to remain at home for at least 7 days. As things progress it is possible if not likely that further steps will be taken. It is our view that the Criminal Justice System is ill-prepared for any outbreak and that in order to function the Legal Aid Agency and HMCtS will inevitably place further burdens on firms and practitioners. There have been some welcome changes including a relaxation of rules at courts to allow solicitors to carry hand sanitising gels. Regrettably there appear to have been no similar changes with the Prison estate as yet. There has also been some talk of using video-link facilities but we remain concerned that these have an adverse effect on outcomes in cases and would be wholly against their use beyond in emergency cases at this stage, or ones where a defendant is not required such as mention hearings.
In terms of practical measures consideration ought to be given to the following suggestions. In due course we may recommend these as a protocol to members but for the time-being they represent suggestions only :
1. Hand sanitiser gel dispensers should be installed in courts, police stations and magistrates Court. Regular breaks should be taken to use these facilities. In this regard any public building lacking these facilities such as through broken toilets, lack of soap or warm water or a lack of accessible dispensers these should be considered unfit for use at this time of a serious public health issue. Members may wish to decline to use such buildings until they are made fit.
2. We would urge the HMCtS to suspend the current listing systems in both Magistrates and Crown Courts and introduce staggered listings as a matter or urgency. It is undesirable for dozens of people to be waiting hours in close proximity because they have all been told to arrive at court at 9:30am. This risks allowing the infection to spread.
3. HMCtS and the MOJ should be prepared for a new protocol for non-attendances where a person is in self-isolation or otherwise unable to produce medical evidence. This should not be an invitation for all cases to be ineffective but must be practical and flexible given the possibility people are unwell are advised not to attend court but have no access to a GP at this time.
4. Before remanding a person into custody the Court should have regard to whether the defendant is a member of a vulnerable group due to age or underlying illness. Where they are this should be a factor raised in court by advocates and considered in terms of a factor in favour of the granting of bail.
5. As the government moves to encourage social distancing, where possible solicitors should seek to reduce unnecessary contact with individuals :
a. This may involve the increased use of the Court Duty Solicitor as agent for local firms to reduce the need for large numbers of solicitors to have to attend court;
b. In order to reduce unnecessary contact, firms and individuals should consider ensuring they do not attend where there is no public or other funding in place ‘to assist the Court’ or otherwise
c. This would equally apply to the Duty solicitor who may wish to ensure they only deal with cases eligible for the Duty Solicitor and are not placed in a position where they act for those not eligible on a Pro-bono basis.
d. The right to refuse to act if do so so might compromise an individual’s health
e. Regular breaks for the Duty Solicitor to wash hands etc including a full lunch hour, where possible away from clients and court staff.
6. Individuals and firms should carry out their own risk assessments on a case by case and person by person basis to decide whether it is appropriate for them to continue to offer certain services face to face such as advocacy or police station advice, particularly taken into account their own risk profile such as age or underlying health issues. Where a person/firm has concluded having done a proper risk assessment that they cannot provide certain services on a particular matter or more generally, they should record that fact. We must insist that the Courts, police, prison service and Legal Aid Agency respect these individual risk assessments and decisions, and indeed support them. No action or adverse comments should be made. This is non-negotiable and any attempt to undermine any firm or individual’s right to make these choices is likely to be counter-productive and lead to wider action.
7. Urgent plans for prison visits. These may have to be cut to only those that are necessary to progress a case. The Prison Service should urgently produce protocols in relation to :
a. Use of tissues and hand sanitisers for professional visits
b. Notification of any outbreak within a prison
c. Lock downs in the event of an outbreak within a prison
d. Use of videolink
8. Virtual Court usage. If this is to be introduced it should be limited for the outbreak only and not be allowed to become standard practice without proper consultation and research on outcomes. Consideration should also be given to:
a. Whether Solictors can use remote videoconferencing to attend hearings from offices/home. There have been pilot schemes using such technology in the past including Sunday courts and virtual courts so it is readily available.
b. Solictors should consider whether to attend the Court or police station for virtual courts.
c. Consideration should be given to have all hearings where a defendant need not attend such as PTPH, mentions and case management heatings conducted via remote links or telephone appearances.
9. HMCtS, police forces and prisons must notify all users immediately once any infections or outbreaks in staff or court users is known
10. Where a person is to be remanded into custody, or sent to custody, appropriate measures should be taken tho assess their status – have the been exposed ? This may involve self-reporting and potentially even testing.
11. Prisons may have to create ‘quarantine wings’ and wings for those who have recovered and so are not at risk. This may necessitate the need to release some prisoners early and cease to impose custodial sentences for minor offences
12. Where a person is received into police custody suites, the risk assessment should include questions and observations to identify if the person is at risk of having the disease. If they are, the DSCC and solicitor instructed should be notified.
13. Non-urgent investigations should, particular those likely to have been RUId or bailed in any event should be RUId without the need for interview unless strictly necessary
14. We will be establishing an email address for members to use to notify us of issues encountered including and inadequate facilities or poor practices and we will use best endeavours to monitor those and raise this with government agencies. Where appropriate we may recommend members decline to allow themselves to be put at risk due to any failings.
4. CALL FOR ACTION
The above section identifies steps which can be taken to minimise the risk of exposure to the disease. Many of those will require immediate steps by the government through its agencies and we call on them now to look at those suggestions including :
1) Use of remote conferencing facilities
2) Physical arrangements at courts, prisons, and police stations
3) Changes in listing policies
4) Changes in the approach to risk assessments
In addition to those matters there are additional things the government can and should do to help the criminal justice system through this crisis, particularly as both it and many providers lack the resilience to survive otherwise after years of under investment and cuts.
(1) Legal Aid Agency
a. Moratorium on enforcement of the 14 hour, and 36 ‘appearances’ rules
b. Suspension of any in person audits and contract manager visits for the time-being
c. Expedited payments of claims etc
d. A temporary presumption in favour of payments eg for PPE rather than firms who may have up to 20% of its workforce off sick having to spend hours disputing assessments
e. DSCC to require police to confirm they have assessed a detainee for the infection and to notify providers
f. Relaxation of rules for duty slots, calls and other KPIs for firms with staff off sick
g. Suspension of the need for a ‘wet ink’ signature on legal aid applications
h. We must insist that the Legal Aid Agency respect these individual risk assessments and decisions, and indeed support them. No action or adverse comments should be made. This is non-negotiable and any attempt to undermine any firm or individual’s right to make these choices is likely to be counter-productive and lead to wider action.
(2) Central Government
a. Business rate holiday announced in the budget to extend to firms with legal aid contracts who also provide duty solicitor work
b. Time to Pay for VAT and NI contributions to be afforded to struggling firms
c. Access to emergency loans for firms struggling with cash flow
d. The profession have long been complaining about the court service being the Cinderella service in terms of facilities. The government should make funds immediately available for emergency measures. Some restrooms need immediate upgrading in terms of hand soap dispensers, paper towels, blowdryers etc.
e. The government should make funds available to ensure constant monitoring and cleaning of rest rooms and common areas, liberal disinfecting and washing of areas and emptying of waste bins. There should in theory be no substantial difference between this and the way hotels for example operate in public restrooms such as a noticeboard explaining when the restroom was last cleaned, when the next cleaning is due and a telephone number to call should the facilities be inadequate.
(3) HMCtS
a. An end to floating trials. It seems absurd to have people attend court who may not even need to be there
b. Instruction of staggered listings to reduce as far as possible contact
c. For courts were there are several courtrooms not sitting, these should be alternated to allow for deep cleaning.
d. A presumption that any hearing that does not require the attendance of the defendant to be by telephone or remote link.
e. Adjournment of all non-essential hearings including Fines and Confiscation enforcement hearings where the hearing is for no more than an update where a defendant has been paying an agreed rate.
f. Hand sanitisers should be encouraged to be used on entrance and exit of the building (this also applies to police stations and prisons).
g. Security staff should be obliged to change gloves repeatedly to avoid cross contamination of belongings.
h. Tray receptacles for the collection of personal belongings should frequently be treated with antiseptic wipes.
i. We must insist that the Courts, police, prison service and Legal Aid Agency respect these individual risk assessments and decisions, and indeed support them. No action or adverse comments should be made. This is non-negotiable and any attempt to undermine any firm or individual’s right to make these choices is likely to be counter-productive and lead to wider action.
Summary
CoVID19 is likely to place a real burden on the entire criminal justice system, and we urge the government and its agencies to recognise the role legal aid practitioners play in that system. For many years the profession has felt that our work has been undervalued but we should not allow our health to equally be undervalued. The system must be ready for change to reduce the risk to users and this may mean an end to some very old and outdated practices. It must also be ready to offer flexibility to court staff, users and practitioners and under no circumstances should this public health crisis be used to ease the burden on some government departments by placing further unfair burden on practitioners. We ask that the government work with the representative bodies to ensure we are updated and to jointly develop protocols and practices to mitigate the risk of wider infection. We also call on the government to ensure any and all protections and arrangements made for public sector workers apply equally to those working in private practice as legal aid lawyers. When it comes to seeing the Criminal Justice System through this, we are all in this together.