Lockdown Week 1: Reflections from Kent
For many this last week has been the strangest of experiences: a mixture of the novelty of working from home coupled with a high degree of isolation from friends and colleagues. Many have learned new skills, such as how to host a multi-player quiz over Zoom, and discovered that there are ways through digital means to achieve the same objective – almost! True Skyping your friends and giving a virtual hug is not the same as the real thing, but it does accomplish the intended goal to a degree at least.
So how has the criminal justice system in Kent fared during this first period of lockdown? What follows are my own reflections on some of what has happened this week to me and my colleagues at Tuckers Kent Branch.
Attending Woolwich Crown Court for a sentencing hearing. Scaled down lists meant there was no trouble parking in the court car park and fewer people milling about generally. Upon entry the security procedures were as normal although I did notice that the security staff were trying to keep a bit more distance. At one point I moved towards the court lists displayed on the wall, whereupon the security staff standing nearby shuffled away saying ‘nothing personal’.
Later I remarked to my colleagues that it was virtually impossible to practice social distancing in the corridors of the court and of course there was the client consultation – in a side room where the space is relatively confined. At least no one seemed to be coughing or spluttering as far as I could tell!
The sentencing hearing went well and the coronavirus probably did my client a favour in keeping him out of prison given his age (63).
Monday evening was then when Boris told us we couldn’t go out save for specified reasons.
During the course of Tuesday various emails were flying back and forth about what this ‘Circuit Leader’ or that ‘Resident Judge’ had pronounced about the safety of attending court and provisional protocols for Counsel conducting hearings.
That day the Maidstone Crown Court list was light with only three courts sitting. I arrived at Court to find a nigh-on empty car park only to be told by security that none of the Judges had attended due to welfare concerns about Coronavirus - clearly I didn’t get the memo! The position of the Judges was understandable, given the circumstances, but it did mean a wasted trip for me. Moreover, my client who was due to appear for sentence via video link will now have to wait for an indefinite period to have his case concluded (he pleaded guilty in January).
The picture across the country seemed very mixed that day but the Crown Courts in Kent did act quickly from Tuesday to put in place a protocol which intends to make use of Skype and telephone attendances for Counsel rather than having to attend court in person. I have yet to conduct one of these new-style hearings.
This was the low point of the week for me. Having agreed to cover Dartford and Gravesend police station duty I attended North Kent Police Station for a police interview with a client arrested for affray and possession of a knife. Notwithstanding the allegations he was a perfectly pleasant chap who, as it happened, spoke no English and therefore needed an interpreter – which as the reader might guess, always takes longer because of the language difficulties.
When I arrived at the police station, I was greeted by two police officers who had been charged with investigating the case. The first officer explained that North Kent was now the designated ‘Coronavirus station' in that all detainees with suspected Covid-19 would be taken from other locations and held/interviewed at North Kent. This did not fill me with joy. I was also told that the police were just using one interview room, which then had to be ‘deep-cleaned’ afterwards. Thankfully, I noted as I signed in that the ‘deep-cleaners’ had been in at 6.20am that morning but I started to feel some concern about the provision for working practices at this point.
The next low point came when during my consultation (with the client and interpreter) we needed to look at a map on my laptop. I could literally feel the interpreter’s breath near to my face and this made me want to hurry up and get out of there all the more.
When we did finally get to holding the interview there were FIVE of us in the one interview room – me, the client, the interpreter and two police officers - a room which measured about 4/5 metres by 3/4 metres. Although we sat a bit further apart than normal, it was not possible to give effect to any meaningful social distance between us, given the confines of the room.
In total, I was at the station for over three hours and in that same room for most of that time. It was clear to me that whilst the officers I dealt with were helpful, the police had not put in place any real strategy for police station interviews during this crisis.
Such was my concern that I was on the brink of complaining to senior officers when I was asked to ‘hold fire’ as a protocol was being worked out.
Later that evening a protocol was indeed put in place and I am grateful to both Richard Atkinson (one of my partners) and Chief Inspector Finnis and others for their efforts to put in place a way of working which required the physical attendance by a legal representative at the police station only as a last resort and only in very serious cases. Other steps have now been put in place which require asking first whether it is actually ‘necessary’ to hold an interview and if so whether technology could be used instead.
As it happens, one of my East-Kent Partners, Scott Neilson, attended Canterbury Police Station that same evening only to find none of the police officers there knew about the protocol. Having said that once Chief Inspector Finnis had been contacted he intervened within minutes to rectify the situation
This was a day in when we were all trying to fathom how the technology would be used. An effort on the part of my colleague Claire Wynn to be Skype-ready led to her being told the police would be using ‘Cisco Meetings’, which brought some confusion. One of my other partners Simon Holmes also successfully persuaded an investigating officer that the attendance of his client on bail for a re-interview was not necessary in the circumstances given the new protocol.
For my part I had arranged to hold a meeting with a client over FaceTime and Later WhatsApp which was very successful - in that my client was able to furnish me with information from her home which she would not have had to hand should we have held the meeting in the office.
By this time, we had also had news from the Legal Aid Agency that they would permit us to claim for police station attendances where conducted remotely and also that we would not be penalised for the lack of a ‘wet signature’ on legal aid applications. The LAA proved to be good to their word later that day when one of my other East-Kent Partners Paul Shingleton, had legal aid granted for a client where he had marked the application ‘unable to obtain signature due to coronavirus epidemic’.
This has been welcome flexibility.
We had a number of police station cases outstanding on this day. For the most part the message had started to get through to more junior ranking officers that there was a protocol in place.
Although the technology did not work in all respects as anticipated, it was actually possible for my colleague Nicola Hall to ‘attend’ the police station remotely. Nicola was able to take disclosure from the officer, advise the client and attend the interview via the officer’s mobile phone being on loudspeaker during the interview. Although clearly not great, Nicola described the process as ‘working well’ even to the extent that she was able to put forward a prepared statement and intervene in the interview via the mobile phone!
Simultaneously in respect of a different police station, my colleague Claire Wynn was able to advise two of our clients and attend two police station interviews remotely. One was conducted via her laptop (i.e. video) and the second was dealt with over the phone because the officer did not have access to a laptop at that time. Claire later remarked that 'the first one was far better because we could see each other. I had barely any control over the second client who was supposed to be giving a statement and a no comment interview. None of this is ideal and there are teething problems at the moment but, in the circumstances, it's okay'.
I agreed to cover the Medway remand court. This court is designed for people who, after charge, have been denied bail by the police. Initially I believed this would be an attendance by remote means but discovered later that all custody detainees were going to be produced in person at the court. This meant that it was necessary for me to attend in person too.
Prior to my arrival it was clear from an email conversation with the court clerk that there may not have been any special provision made by the custody staff for maintaining social distancing. For those who do not know Medway Court, it has a very small interview room (2 x 3 metres if that) for use by lawyers and their clients. To use this facility would have flown in the face of all Government and medical advice on protecting oneself and others from infection.
As an aside, upon arrival at court and after going through the metal scanner, the security guard nonchalantly used his wand to search me. This process in and of itself cannot be carried out at safe distance and so to my regret physical-distancing did not take place here. I'm scratching my head to understand what the security guards could or should have been advised in relation to this?
Thankfully the cell staff were willing to allow lawyers to see their clients to take instructions in an adjacent empty courtroom which allowed for physical distance to be maintained (although distance not maintained by cell staff and the client). However, this did also mean that there were two members of cell staff present during my consultation - which meant that what was said between me and my client was not confidential - which clearly it should have been. I was also informed by another lawyer at court that the cell staff were not actually ‘allowed’ to do this and that they could easily get into trouble for taking this sensible and pragmatic course of action. Needless to say that in the circumstances this was the lesser of two evils.
Having said that, this situation needs to be rectified urgently if the court is intending to have Defendants appear in person in the cells in the future.
The old adages ‘where there is a will there is a way’ and ‘necessity is the mother of invention’ have proved true this week both with the combined efforts of the Defence community (in particular Richard Atkinson) and the police.
As one of my partners Robin Murray remarked ‘it is clear that the top brass in the police have been trying to do the right thing in Kent’ although the chain of command was not effective straight away. Having said that the swift interventions by Chief Inspector Finnis should be given special mention as they have made a big difference in situations where otherwise police officers and custody sergeants would have carried on as usual.
There are still a number of nuts to crack – getting the tech to work properly and ensuring lawyers can speak to their clients confidentially are but a few. However, the situation in Kent has shown that where there is a crisis borne out of an external threat people generally come together to do the right thing, albeit at differing rates and to different degrees but with a lot of combined effort can achieve results for the common good. I am sorry to hear that others have not had the same experience in other parts of the country. I wonder what next week will hold?
TUCKERS KENT BRANCH
28th MARCH 2020