The Coronavirus Lockjam on All Legal Matters
The current pandemic has drastically impacted many sectors of business and industry, some to the point of failure if not supported by government aid. Yet among these sectors there is one that is essential to the functioning of society and governance that is not being given much attention.
There should not be any prejudice that legal service providers don’t need support since theirs is a service that is dependent on the flow of people going through the courts, and when society’s need for legal advice and representation shuts down then so does any income dry up for legal professionals. What makes it worse is that courts really cannot just shut down because that would be a violation of many people’s civil and human rights.
This exposes all those who seek legal counsel and their representatives to risk, or worse that they cannot find any help from the vastly reduced force of legal professionals to handle all cases.
The income of legal service providers has been drastically cut back, and the ones who are most affected are the young and ethnic solicitors – who are also disproportionately representative of legal counsel available to those relying on the publicly-funded Legal Aid sector. Legal Aid, already been known for being cash-starved before the coronavirus hit everyone, might also collapse as measure for providing equality of availability to justice for all people.
There is a serious danger that some barristers, solicitors, and law centers may collapse in this time of crisis, which would too deliver knock-on effects to many others in the community. Not-for-profit firms who help people find legal aid they otherwise would not be able to afford in this time of crisis would not able to operate without immediate support.
The House of Justice Committee report stated that:
“Newly qualified barristers face particular pressure. Small high street firms are particularly at risk from the effects of Coronavirus restrictions. Law centres and other not-for-profit legal advice providers are also at great risk.”
It is serious enough that the House of Commons Justice Committee declared that the Ministry of Justice must take action to prevent the collapse of legal service providers that will certainly be needed when the measures to control the Coronavirus are lifted.
The Situation at Court
Due to requirements for social distancing and other measures, less cases have come to court and many trials needed to be suspended. This doesn’t impact just the income of legal service providers but of course imposes hardships on the people that they provide those services to.
Reduced, but not stopped. The courts are trying their best to get as much done as possible even with these conditions to provide access to justice that is the bedrock of a functioning society. These are the measures used to mitigate potential health risks:
1. Remote hearings
As noted in the guidance issued on 19 March 2020 entitled COVID 19: National Guidance for the Family Court:
[The justice system] must ensure the safety from infection of judges, court staff, lawyers and litigants whilst at the same time facilitating a hearing that permits the parties to fully participate, that ensures both procedural and substantive fairness in accordance with the imperatives of Art 6 and the common law principles of fairness and natural justice [and transparency]. The objective should be to make the remote hearing as close as possible to the usual practice in court.
Efforts by the courts and legal professionals to make use of technology to overcome challenges in working without physical contact and holding hearings remotely from home have been nothing short of impressive, but there are of course difficulties.
Among these, given a certain lack of technological understanding and increased costs of devices under high demand and low supply, is that what teleconferencing equipment people have available matters a great deal in remote hearings.
Lord Burnett of Maldon, the Lord Chief Justice, acknowledged that
“… the quality of the kit matters a great deal. If you are doing this sort of encounter with a laptop, you are hunched over it, you are cramped and you do not have room for paper. If you are doing a full video hearing, you need two screens: one you can put papers on and the other so you can see people.”
According to a rapid review commissioned by the Rt Hon Sir Terence Etherton, the Master of the Rolls, on the impact of Covid-19 measures on the civil justice system, lawyers who responded were mostly satisfied with the result of remote hearings although they had some concerns:
“[they] found remote hearings to be more tiring to participate in than physical hearings, particularly those that proceeded by video. Findings also suggest that remote hearings may not necessarily be cheaper to participate in, which may be counter to assumptions about relative costs being lower.”
As remote hearings may have higher up-front costs compared to appearing in court, and impose natural inconveniences to working effectively at home, this may unduly place advantages on lawyers that can afford better equipment and less interruptible living conditions. The quality of experience in remote conferencing with their clients and the court may impact the stress clients and their representatives may experience about their ongoing cases.
Remote hearings are possible, but not necessarily better or more convenient. It is simply something everyone must get used to in the search of the new normal.
2. Equal access to proceedings
The goal of remote hearings is to ensure proceedings are as close as possible to usual practice. If it is more convenient for one party to be physically present and the others remotely attending, would this not constitute good enough similarity to being in court?
No, many in court disagree. Being the minority that attends a hearing virtually instead of physically can be alienating and provoke disengagement from the proceedings. The Equality and Human Rights Commission has reported that:
“Almost all the criminal justice professionals in England and Wales who we interviewed felt that use of video hearings does not enable defendants or accused people to participate effectively, and reduces opportunities to identify if they have a cognitive impairment, mental health condition and / or neuro-diverse condition.”
When conducting a remote hearing, it is preferred that all participants do so remotely and that defendants and the accused are afforded all possibility of equal treatment. In the creation of a virtual court space, the court should proactive ascertain what parties and witnesses need to take part effectively in the proceedings – including interpreters, reasonable adjustments, intermediaries, and time to have a conference with their representative. The need for confidential and alternative means to communicate with their representatives outside of a virtual courtroom is critical.
It is also noted to be imperative that video technology be available in prisons and detention facilities to enable defendants and appellants to immigration to take part in proceedings without delay.
In addition, public access to hearings is a vital component to the carrying out of a just and free society. Temporary provisions in the Coronavirus Act 2020, Schedules 23 to 27, allow courts to order the remote hearing is broadcast and recorded. Streaming a virtual court case would allow the press to be a non-visible participant of court proceedings. These provisions also criminalize the unauthorized recording of transmission of these broadcasts for the sake of natural privacy rights.
3. Court safety impositions
It is necessary to impose social distancing, the installation of hand washing facilities, and security searches at court. The court cannot go on without the physical presence of essential personnel, judges and advocates, and all remote hearings can do is to reduce the amount of cases and people that must physically go through the floor.
According to the Crown Prosecution Service Inspectorate:
“The court estate was not built to enable some of the new requirements of social distancing; this meant that those attending courts were, as with other key workers, putting themselves in danger.”
Even when court buildings are regularly deep cleaned, many fear that since a large volume of people moves through the building and must spend a significant amount of time in the room with each other, and touch surfaces, the statistical possibility of acquiring coronavirus is too high.
Socially distanced trials in the physical raise concerns about the health risks of attending the court in person. Socially distanced jury trials already exclude those particularly susceptible to COVID-19, those with childcare responsibilities while the school remain closed, and those who need to rely on public transport. Hence, the pool of those who can participate in a socially distanced jury trial is depleted to a possibly less diverse pool of impartial individuals compared to a full remote trial.
However, it has also be argued that fully remote jury trials would discriminate against people without spare rooms or access to the Internet. Amanda Pinto QC, Chair of the Bar wrote:
“How will those potential jurors who don’t have spare room which they can sit in quietly on their own for five hours be accommodated? Will we resort to a sort of faux-selection based on economic factors?”
Financial Difficulties Faced by the Legal Professions
According to the report “Coronavirus (COVID-19): the impact on the legal professions in England and Wales” submitted to the Parliament, here is quick statistical look at what difficulties legal service providers are experiencing:
1. Reduction in legally aided work
Provisional Legal Aid statistics show the scale of the reduction in legally aided work as a result of the coronavirus restrictions:
A. Criminal legal aid
- 41% decrease in police station attendance (down from 44,400 per month to 26,200);
- 45% decrease in applications received for representation in the Crown Courts (down from 7,500 per month to 4,100);
- 42% decrease in applications received for representation in the magistrates’ courts (down from 17,500 per month to 10,200);
B. Civil legal aid
- 34% decrease in legal help new matter starts (down from 10,200 per month to 6,700);
- Zero or no Housing Possession Court Duty Scheme starts (down from 2,300 per month);
- 94% decrease in the number of Housing Possession Court Duty Scheme cases closed (down from 2,600 per month to 150); and
- 16% decrease in civil representation applications (down from 10,300 to 8,700). Family applications decreased by 13%, whilst the 34% in non-family applications was driven mainly by the fall in housing applications.
Therefore: less cases don’t just mean that lawyers have less income but less people are getting access to legal aid that they need to pursue justice or to protect themselves. Particularly notable are shortages in criminal case and housing representation. With almost halved criminal justice legal aid provided, many people are stuck in detention in potentially high risk locations or having little hope of a speedy end to their criminal case proceedings.
With people fearing potentially losing their homes, they are open to abuse or desperate actions. Being homeless in times like these may be a death sentence in the name of naked profit. The lockdown has seen also an increase in domestic abuse incidents with lessened opportunity for legal action or escape.
Remember, all of these reduction in cases impacts prosecution as much as defense.
2. Pressures on publicly funded legal services providers even before Coronavirus
Publicly funded legal services providers were already under stress before coronavirus. Bill Waddington, of the Criminal law Solicitors Association, testified:
“…on the criminal legal aid side we entered the Covid period in a perilous state. There had been a huge drop in the number of providers anyway. Some 36% were lost between 2010 and 2018. There was some 29% reduction in the number of duty solicitors available from 2016 to 2019 … That is how we entered this lockdown period.”
If recourse to nonprofit legal services dry up, this will drastically impact people’s rights to access to justice once the restrictions are lifted. The rule of law can only exist when it is effectively enforced.
The Justice Committee had previously concluded in its July 2018 Criminal Legal Aid report, that
“there is compelling evidence of the fragility of the Criminal Bar and criminal defence solicitors’ firms.”
It is feared that in about six months nearly half of Law Centres may be forced to close due to insolvency.
3. Adverse impact on diversity and social mobility at the Bar
The Joint Committee on Human Rights concluded, in July 2018, that
“[T]he pressures caused by the reforms to legal aid are having a severe impact on legal aid professionals, damaging morale and undermining the legal profession’s ability to undertake legal aid work, leading to consequent grave concerns for access to justice, the rule of law and enforcement of human rights in the UK.”
And The Bar Council’s survey of all barristers in England and Wales (published 27 April 2020) concluded that:
“Work and the ability to earn money has dramatically disappeared for many barristers, with over half fearing for their future in the profession. Those barristers from more diverse backgrounds are disproportionately affected. The young, the publicly funded and especially the criminal Bar – the most diverse parts of the Bar – are unsustainable without financial aid from the Government, even in the short term.”
The Young Legal Aid Lawyers group echoed these concerns and asked:
“The legal aid system was already in the midst of a sustainability and social mobility crisis. The Coronavirus is compounding these issues to devastating effect. How will the government protect the most vulnerable members of our profession and promote social mobility to ensure that legal aid practice becomes a viable career choice?”
The report concluded that:
“It is important that the legal professions properly represent the society they serve, not least because they form a large part of the pool from which the Judiciary is drawn.”
Being a legal professional is a career choice, and if new solicitors find no future in working in the public service then it’s up to the government to offer incentives. It takes a particular kind of person to work long hours for little pay, but idealism is no suicide pact.
The usual process has participation in public legal aid as a learning experience, but if public firms collapse and new minority professionals fail to find a career then this will impact demographical representation. The income cuts have been hardest on young solicitors and barristers, and on Black, Asian and Minority Ethnic lawyers – who make up disproportionately those who take part in Legal Aid. If they cannot get their foot into the door here, then they can only seek opportunities elsewhere.
Then, as mentioned, because the judiciary draws from the pool of legal professionals, this could lead to a judiciary stocked with people who don’t adequately represent the interests and cultural norms of their citizens.
Changes in Support for the Legal Professions
The Legal Aid Agency have made certain changes to help legal representatives to allow them to be remain available. It has become easier to claim interim and hardship payments, aligned fees for remote work with those of in-person work, and halted pursuit of outstanding debts owed to the Legal Aid Agency.
It is vital to maintain legal professions in good shape to deal with the surge for legal advice and representation once the lockdowns are lifted. Once the courts reopen, the embargoes on repossession and debt collections are lifted, and criminal trials and police work return to normal activity rates, it will be too late to regret not having passed measures to keep vulnerable firms afloat and address the cash-flow problems of young and returning self-employed practitioners.
People seeking to obtain legal services during this time of lockdown should also be protected from unscrupulous fees and delays in obtaining justice.
Times of reduced caseload are not times to save money but times of crisis for the citizenry. It is now up to the Ministry of Justice if they will allow further grants for law centres and not-for-profit legal services and business relief.