Friday 24 April 2020

The impact of coronavirus on courts and legal matters

Supreme Court:

In July 2019 it was announced by the Prime Minister's Office that Lord Reed would take up the position of President on 11 January 2020. Thereafter, Lord Justice Hamblen, Lord Justice Leggatt and Professor Andrew Burrows would join the Supreme Court as justices on 13 January, 21 April and 2 June 2020 respectively. The swearing in of Lord Justice Leggatt duly took place on 21 April 2020 but, because of coronavirus, the ceremony was held in the court's library.

Arrangements for the continuation of the court's business were announced on 30 March.

Judiciary and courts:

A library worth of guidance for
criminal courts, civil courts and tribunals has emerged as a result of coronavirus and may be seen at the Judiciary wesbite.  On 17 March, the Lord Chief Justice announced - "no new trial should start in the Crown Court unless it is expected to last for three days or less. All cases estimated to last longer than three days listed to start before the end of April 2020 will be adjourned."

Arrangements for Magistrates' Courts were issued by the Senior Presiding Judge on 17 April - see
Listing in Magistrates’ Courts
The Guardian 23 April has described how domestic violence cases are being handled at Manchester and Salford Magistrates' Court.

Registration - Births and Deaths:

The Births and Deaths Registration Act 1953 Part II sets out the requirements for registration of deaths. The Coronavirus Act 2020 section 18 has made temporary changes to the law. The detail of the changes is to be found in Schedule 13 Part 1.  The Explanatory Notes relating to registration are helpful.

Inquests:

Under existing legislation, an inquest into a death must be held with a jury if the senior coroner has reason to suspect (amongst other matters) that the death was caused by a notifiable accident, poisoning or disease. That would require inquests into deaths from coronavirus to be held with a jury - Coroners and Justice Act 2009 s7(2)(c). That requirement could have very significant resource implications for coroner workload and Local Authority coroner services, resulting in a possible 25,000 additional jury inquests even at the lower end of COVID-19 mortality modelling in England and Wales. Although the inquests could be adjourned until the pandemic has passed, this would deprive bereaved families of swift closure and would, in any event, simply delay resource pressure for the future. The Coronavirus Act 2020 s. 30 modifies the existing legislation to disapply the requirement.

The Chief Coroner has issued a guidance note for Coroners in England and Wales, published online, which covers both ongoing inquests and reporting of deaths caused by COVID-19.

As pointed out on the website of RadcliffesLeBrasseur LLP, "the current situation raises a number of issues for Coroners; Media reports of failures in the delivery of testing, inadequacies in the supplies of personal protective equipment and a range of other issues will inevitably mean that it will be suggested with some frequency that some human failure has been involved in a Coronavirus death which was otherwise avoidable. The exclusion of Coronavirus deaths from the statutory requirement to hold inquests with a jury in the case of notifiable diseases may well be counterbalanced by arguments under Article 2 of the ECHR and invitations to Coroners to exercise their broad discretion to hold the inquest with a jury, presenting inevitable challenges in achieving the required volume of jury inquests in a timely manner."

In March 2020, Leigh Day published Update to ongoing inquest guidance and deaths relating to COVID-19.  During April, the same firm has continued to publish particularly useful guides.  Examples include:
Wills:

New Zealand has enacted temporary legislation about the signing and witnessing of wills - see HERE.

The requirements of the Wills Act 1837 s.9 present difficulties if spread of coronavirus is to be avoided.  See the discussion at The Gazette - 8 April 2020 - How to make or amend a will during the Coronavirus (COVID-19) lockdown

The Guardian 3 May - Make bedside oral wills legal during pandemic

Mental Capacity:

The government issued guidance for health and social care staff in England and Wales who are caring for, or treating, a person who lacks the relevant mental capacity during the coronavirus outbreak.- Looking after people who lack mental capacity

"The guidance ensures that decision makers are clear about the steps they need to take during this period. It focuses on new scenarios and potential ‘deprivations of liberty’ created by the outbreak.
During the outbreak, the principles of the Mental Capacity Act 2005 (MCA) and the safeguards provided by the Deprivation of Liberty Safeguards (DoLS) still apply.

The Mental Capacity Act 2005 provides protections for people who lack or may lack the relevant mental capacity to make decisions about different aspects of their life.

The Deprivation of Liberty Safeguards are an important part of this act and provide further safeguards for those who need to be deprived of their liberty in order to receive care or treatment in a care home or hospital, but do not have the capacity to consent to those arrangements."

Lasting powers of attorney:

The Office of the Public Guardian has set out how it is responding to the coronavirus pandemic. There is additional guidance on the making of Lasting Powers of Attorney.

Lawfulness of the "Lockdown" Regulations:

This blog has two posts on the The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 . A post of 26 March 2020 looked at the original Regulations issued on 26 March. A second post of 22 April looked at the amendments made by the government on 22 April.

The 26 March post considered the Statutory powers in the Public Health (Control of Disease) Act 1984 (as amended) which enable the Secretary of State to make "emergency regulations" if he considers that there is a "serious and imminent threat to public health."

Legal commentators have raised the question as to whether the Regulations are lawful.  See:
Update 2 May - The Guardian 1 May reported that a letter before action has been sent to the Secretary of State for Health.The solicitors involved are WedlakeBell PLC and their website notes that a" leading UK businessman has launched a legal bid to challenge the lawfulness of the Government’s ongoing COVID-19 lockdown – whilst calling on Boris to relax restrictions.
Simon Dolan is seeking a Judicial Review over the Government’s emergency measures which continue to impose severe restrictions on personal liberty and freeze the UK economy."

At the time of writing, the letter before action may be read via WeblakeBell's website - HERE or via this link (pdf 22 pages),

A separate legal action may come about regarding the interpretation of business interruption insurance policies - The Times 1 May 2020.

Friday 24 April 2020
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