Solicitors have been battling on for clients in spite of lockdown
By: Daniel Mardle
Tags: Solicitor, Criminal Justice, Legal System

“I am always on the go, so I am rarely in the office. I’m always [in] police stations [and] magistrates [courts] all over the country. So I’m used to working, not necessarily from home, from my car, from a courtroom, from a canteen, from wherever I am.

“It’s not been that much of a change. It depends on the practice area.”

Rachel Fletcher, a criminal defence solicitor from the Manchester office of law firm Slater and Heelis, whose role is to provide guidance to clients no matter what the hour or place, is neither upbeat in the face of a drastically changed landscape in which she provides an essential role in the lives of many, nor pessimistic about the challenges that have been laid down in the path of her and all the others in her profession.

Rather, she’s determined to soldier on and make the best of a difficult situation.

It might be easy to forget but the emergency services aren’t the only front-line necessity who have had to adapt to the new landscape in which we are all having to live.

So has the UK criminal justice system.

For most of us dealing with a solicitor might be our first point of entry into the legal world should we find ourselves thrust into the position of needing legal representation, be it to bring the mugger who chose to relieve us of our money to justice for instance, or, God forbid, we should find ourselves in handcuffs facing a subsequent appointment in the dock.

Solicitors are no different to any other business who have found themselves forced into uncertain territory amidst this crisis, yet their role continues to be in as much demand as any emergency service, and they’ve had to persevere under extremely difficult circumstances as the coronavirus crisis has thrown the UK legal system into turmoil and uncertainty and it may be feeling the effects for a long time to come.

But for the moment it’s still ‘all systems go’ for Rachel at least, as she has a wide-ranging spread of work to deal with.

As lockdown was starting to ease over the summer Rachel admitted that she and others in her profession would be struggling if they had only been dealing with cases for the Magistrates courts which were closed during total lockdown except to deal with serious cases like domestic violence and prisoners on remand.

Crown court cases on the other hand were less affected and engaged with preliminary hearings by video, while letting the backlog of more serious cases grow, which according to Rachel created uncertainty for clients such as one she’s representing in an historical rape case who isn’t in prison or on bail and can do nothing but wait for their day in court, whenever that may be. The case is currently scheduled to go to trial in December though Rachel is sceptical it will happen then, claiming that as an historic case it doesn’t rank that highly on the Crown Prosecution Service’s list of priorities.

In fact in Rachel’s experiences the courts aren’t deciding if cases will go ahead until a day or two in advance, yet she still has to prepare clients for court nonetheless even if it doesn’t happen.

One client she represented for drink-driving just wanted to come in and plead guilty to their offence but couldn’t when their hearing was postponed from March to June, and then again to September.

It was estimated just before lockdown was initiated in March that a quarter of Crown Court trials will be disrupted due to new restrictions put in place to combat the spread of the coronavirus.

Over half a million criminal cases are now in a backlog which had been building and building for years until Covid landed and only made things worse when the courts had to put a lot of work on hold due to emergency measures.

Cases waiting to be dealt with in magistrates’ courts in England and Wales have risen by 22%, and 4% in the crown courts.

The number of Magistrates Court cases has risen from 484,000 pre-Covid, to over 500,000 since lockdown, while the number of Crown Court cases rose from 37,500 to 46,000.

Slater Heelis is one solicitors firm that didn’t furlough its staff, but rather gave them the option of coming into the office or working from home, an opportunity Rachel made use of by doing both, in a slight change to the norm that she’s used to.

“I’m still busy every day, I’m just not in and out of court or in and out of police stations as I would normally be but I’ve got other work to do.

“But I don’t think I’m typical really.

“Lots of my friends [are] criminal lawyers, [and] they’re struggling more than I am.”

As already mentioned, Rachel is usually on the go and not sitting in the office much anyway, and is thankfully well equipped for the situation as Slater Heelis was well prepared for adapting to the new status quo; “We’re very well set up for remote working. Slater Heelis [is] very progressive.

“We all have case management systems [and] laptops. Some firms were running around to try and sort this situation out but it was seamless for us.”

Rachel is still able to provide virtual guidance to most clients, though the ease depends on the scale of the offence, saying it’s easy enough to do with minor offences.

But she isn’t unique in that regard, and others are fighting similar battles.

The solicitors’ firm Olliers is another continuing to operate to the best of its ability, both from home and the office, and has reopened its doors allowing clients to visit the office again but with social distancing measures in place.

Alex Preston, a criminal defence and inquest solicitor from Olliers, who has also spent lockdown corresponding with clients by phone or video conferencing from her own home, admitted she doesn’t mind the combination of working from home and the office but doesn’t relish the idea of doing it full time.

“I don’t mind doing a mixture of [working from home and the office] but I don’t want to do it all the time.”

Alex is also uncertain about the fate of several trials she is working on as all the trials she was involved in at the time of lockdown had to be adjourned, causing delays to numerous cases.

She believes the courts have handled the situation as best as they can under the circumstances but believes the problem is that delays were already there before the current crisis and have only been exacerbated by it.

“The main issue with the court is delay and that’s a problem that totally predates Covid-19.

“There’s already a massive delay in cases being progressed through the courts and already massive delays waiting for trials, whether it’s in the Magistrates Court or Crown Court.

“Everyone’s focusing on the Crown Court but I think it’s about 85% cases are dealt with in the Magistrates Court and that’s where most justice is dispensed.”

The effect of the crisis has been distressing for a large number of the clients Alex deals with and created more anxiety for many.

Furthermore, the inability to provide the appropriate guidance in person can have an adverse effect on communication.

“I deal with lots of vulnerable clients and often communication can be really difficult and it’s been made more difficult by the fact that for a long period of time it was face to face.”

Alex has had to correspond with clients held in custody on remand but this was quite difficult when prison visits were initially prohibited for safety reasons before it was possible to arrange meetings by video-link, but that itself can be difficult to arrange as well when few prisons may possess the necessary facilities.

And the current circumstances can undoubtedly leave a toll on those kept in custody awaiting a court appearance or trial that’s currently on hold with possibly no date in sight.

“It’s very tough. Most of them are in their cells 23 hours a day with very little association or time out for themselves not doing jobs, not doing education in the way that they were before.”

I asked Alex if she thinks the legal system might be facing a crisis from the fallout of Covid-19 but in her opinion the legal system was facing one already even before the pandemic from a decade of austerity.

“The court system, criminal defence legal aid and the CPS have all been massively affected by austerity for the last 10 years so there already was a crisis.

“The Ministry of Justice was always having its funds cut.

“There is a crisis of funding in the legal system.”

When asked if she thinks the legal system might have to be adapted in ways it hasn’t been before, Alex said she believed the backlog in cases would become so bad that the courts would have no choice but to open up additional venues to accommodate trials; the so-called ‘Nightingale’ courts, after the makeshift clinics named after Florence Nightingale that were set up in several cities.

The Lord Chancellor Robert Buckland announced in June that 10 would be opened to start with across the country, but also commented that the UK would need at least 200 extra sites to deal with the backlog. Seven more have been announced since.

Rachel was more sceptical, cynically saying that criminal courts were ‘a mess’ and ‘on their knees’ and didn’t envision any kind of improvement after the severe financial cuts of the past several years, even going as far as to predict it would carry on as normal once normality has officially resumed.

When asked if they think cases could be seen as non-urgent and even dropped because of delay or expense, Rachel said the Crown Prosecution Service would have to consider not only the evidence, but whether or not there was a public interest to proceed.

Alex, however, was doubtful about the idea of cases being dropped, but didn’t rule it out entirely, speculating the idea of the Abuse of Process argument, in which the prosecution has taken so long that a defendant can no longer receive a fair trial, could be made in one’s defence.

It wouldn’t be an understatement to say that Alex and Rachel’s largest concerns right now are about their ability to continue helping their clients as best they can under the current circumstances, and the effect on their wellbeing, as the work they’re doing with them is likely to last longer, and be met with obstacles.

“It causes massive anxiety to suspects or defendants… because everything takes a lot longer to be resolved,” Alex said.