Coronavirus advice and updates

Please see the summary of existing measures, which will be updated as necessary. The Bar Council continues to represent to the Ministry of Justice and the Treasury at the highest levels the financial impact of the pandemic on the Bar and the fact that many barristers continue to be excluded from the existing financial support measures.

The LAA has given assurance that it is able to operate to the existing guide-times. Please see the LAA’s guidance on financial relief for legal aid practitioners.

Please see the letter from the CEO of the CPS giving the CPS’s COVID-19 statement of principles regarding payment of counsels’ fees.

We continue to liaise with the LAA and CPS.

Read the Legal Sector Affinity Group Covid-19 anti-money laundering advisory note

Coronavirus (COVID-19): courts and tribunals planning and preparation
This HMCTS webpage provides advice and guidance for all court and tribunal users during the COVID-19 outbreak and will be updated when new advice is available.

Courts and tribunals tracker list during coronavirus outbreak
This page holds a tracker list of open, staffed and suspended courts during the coronavirus outbreak. It will be regularly updated.

HMCTS weekly operational summary on courts and tribunals during coronavirus (COVID-19) outbreak
This page provides a weekly summary of the HMCTS operational position during the coronavirus pandemic. It is updated this every Friday at 17:00.

Keeping court and tribunal buildings safe, secure and clean
This page provides details about security, cleaning and social-distancing arrangements in court and tribunal buildings during the COVID-19 pandemic.

HMCTS has produced a briefing document that summarises the routes that barristers (and other professional users) can use to raise ‘real time’ concerns about the safety of courts and tribunal buildings during the coronavirus pandemic. In summary, it is suggested that professional users should first raise their concerns locally with a member of staff whilst on site or immediately thereafter. In the event that the issue requires escalation, HMCTS has provided the contact details for the Regional Support Units and set out the information that ought to be included in any relevant communication.

The Bar Council’s Covid-19 Working Group is in regular communication with HMCTS and issues can also therefore be raised using the email address C19WG@barcouncil.org.uk. As a last resource, formal complaints about specific courts or tribunal buildings can be raised through HMCTS’ online form.

Members are reminded that the Bar Council has revamped its secure reporting tool, Talk to Spot, to ensure that members can use it to report coronavirus-specific concerns – for example around safety when attending court - as well as to report harassment and inappropriate behaviour. We are encouraging barristers to use the app wherever possible, as we are using the anonymous reports that we receive through it to form the basis of our broader discussions with HMCTS and other relevant stakeholders.

Under Schedule 3A, Part 1, Section 2(5)(e) of The Health Protection (Coronavirus, Restrictions) (All Tiers and Obligations of Undertakings) (England) (Amendment) Regulations 2020, which covers the Government’s prescribed exceptions for leaving a home located in a Tier 4 area, people may do so in order to “fulfil a legal obligation or to participate in legal proceedings”. Following the Prime Minister’s announcement on Monday 4 January 2021, every person living in England is currently considered to be located in a Tier 4 area. This section of the Regulations allows practising barristers to leave their home, travel and stay in alternative accommodation in order to undertake work and fulfil their obligations to their clients and to the courts. Furthermore, barristers are included in the Government’s list of critical (or ‘key’) workers and fall under the heading of “those [persons] essential to the running of the justice system”.

In a recent email to the profession, Chair of the Bar, Derek Sweeting QC, confirmed that the position of the Bar Council and Circuit Leaders is that barristers should continue to attend court unless they are instructed not to do so by the judge conducting the hearing. Derek further stated that judges in all jurisdictions are expected to move to the remote hearing of cases wherever possible, and as soon as possible. The Lord Chief Justice has further confirmed that no participant in legal proceedings should be required by a judge or magistrate to attend court unless it is necessary in the interests of justice. Facilitating remote attendance of all or some of those involved in hearings is the default position in all jurisdictions, whether backed by regulations or not.

As of 04:00 on 18 January 2021 and in accordance with government guidelines, barristers entering the UK will need to provide proof of a negative coronavirus test before they leave the country that travelling from. The test must have been taken in the three days before their departure and the proof must be in English, French or Spanish. Those travelling to the UK must also show proof of a completed passenger locator form at the border and self-isolate for a period of 10 days upon entry. These rules apply to everyone except those whose jobs qualify for (international) travel exemptions.

In September 2020, the Department for Transport confirmed that barristers returning from non-exempt countries who have to self-isolate for 10 days can break that self-isolation in order to attend a court hearing. The exemption under Regulation 4(9)(c) of the Health Protection (Coronavirus, International Travel) (England) Regulations 2020 means that any barrister who has to quarantine after returning from a non-exempt country (when they were in that non-exempt country for any reason) can temporarily break their quarantine to fulfil a legal obligation by participating in a legal proceeding. This exemption applies to anyone who needs to participate in a legal proceeding, not just barristers. However, please note that in October 2020, HMCTS published further guidance relating to this issue which appears states that “individuals must self-isolate when returning from a country that is not in the coronavirus travel corridor. While public health legislation allows those involved in legal proceedings to come out of this self-isolation when necessary, you must consult with the court or tribunal first who will consider and decide on appropriate arrangements.”

HMCTS has published details about its planning and preparation for the operation of courts and tribunals and how it manages  security, cleaning and social-distancing arrangements in court and tribunal buildings during the coronavirus (COVID-19) pandemic. We have been told by the Chief Executive of HMCTS that no court or tribunal building will be open unless it is safe to do so.If it has been decided that the arrangements in the court building and for conducting the hearing comply with the HMCTS requirements, you should attend the hearing unless you are clinically vulnerable or clinically extremely vulnerable. This includes those who are shielding (as set out in the government advice).

If you believe that the arrangements do not meet the HMCTS requirements, you should raise this with the senior HMCTS manager at court and the judge, whose decision it is if the court should remain open and the hearing continue. You can also make a confidential report about your concerns regarding coronavirus in court by using the Talk to Spot app.

Some people are considered to be “clinically vulnerable”, meaning they are at higher risk of severe illness from coronavirus.  These include those who are aged 70 and over and those who have an underlying health condition, including pregnancy.  Current government advice is that these people should take particular care to minimise contact with others outside their household.  There are also those at even higher risk, the “clinically extremely vulnerable”, who are advised to continue to stay at home and be “shielded”.

If you fall into either the clinically vulnerable or clinically extremely vulnerable categories, you should not be compelled to attend a hearing in person.  If it is not possible for you to attend the hearing remotely, after discussion with the court and your client, you may need to withdraw from the case.

If you live with someone who is clinically extremely vulnerable, you are not required to be “shielded” yourself but you should carefully follow the guidance on social distancing.  If you feel that doing so is not compatible with attending a hearing in person, you should discuss this with the court and your client.

For advice on your specific situation, contact the Ethical Enquiries Service.

The Royal College of Obstetricians & Gynaecologists has produced detailed guidance on coronavirus infection and pregnancy for pregnant women and their families.

The Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 state that “where an adult is notified… [] that they have tested positive for… coronavirus… after 28 September 2020 or had close contact after 28 September 2020 with someone who has tested positive for coronavirus, or that a child in respect of whom they are a responsible adult has tested positive for… coronavirus… after 28 September 2020 or had close contact after 28 September 2020 with someone who has tested positive for coronavirus” (regulation 2(1)), then they “must self-isolate for the period specified in regulation 3” (regulation 2(2)). However, as a result of the new regulation 2(3)(iii), the adult in question may leave their place of self-isolation (including their home, the home of a friend or family member) to “fulfil a legal obligation, including attending court or satisfying bail conditions, or participating in legal proceedings”. 

Read literally, this means that someone who has tested positive for coronavirus or has come into close contact with someone who has tested positive for coronavirus, may break the relevant period of self-isolation in order to attend a court or tribunal hearing. However, the Bar Council has publicly advised that no one, including barristers, should go to court if they have tested positive for coronavirus or have symptoms, and that they should, instead, self-isolate. Furthermore, HMCTS has now stated that you should not come to their court buildings if you have coronavirus symptoms or you have tested positive for coronavirus or waiting for a test result.

Where barristers feel well enough to attend court, they should ask the judge for permission to appear in court remotely. If they do not feel well enough, or cannot participate remotely, then they are reminded that, under rule C26.3.b of the BSB Handbook, they may cease to act on a matter on which they are instructed and return their instructions if they are self-employed and illness makes them unable reasonably to perform the services required in the instructions.

Current government guidance indicates that barristers should not go to court if they have been instructed by the NHS to self-isolate. HMCTS has also stated that you should not come to their court buildings if you have been instructed to self-isolate.

Where barristers feel well enough to attend court, they should ask the judge for permission to appear in court remotely. If they do not feel well enough, or cannot participate remotely, then they are reminded that, under rule C26.3.b of the BSB Handbook, they may cease to act on a matter on which they are instructed and return their instructions if they are self-employed and illness makes them unable reasonably to perform the services required in the instructions.

HMCTS guidance

How to join telephone and video hearings during the coronavirus (COVID-19) outbreak

HMCTS guidance for joining a video hearing

HMCTS guidance for defence practitioners seeking to join a video enabled criminal hearing

Use of Skype for Business and MS Teams in Remote Court Hearings (produced by the South Eastern Circuit)

See also the Judiciary’s general guidance on PDF bundles and The Bar Council IT Panel’s guidance on ebundles.

The following list of guidance is broken down by jurisdiction and circuit.

Jurisdiction

General

Judiciary.UK COVID-19 advice and guidance page

Inns of Court College of Advocacy, Principles for Remote Advocacy
 

Civil

Birmingham QB and County Court - notice for court users (updated 25 June 2020)

Updated Civil Justice Protocol Regarding Remote Hearings (26 March 2020)

Practice Direction on Video or Audio Hearings in Civil Proceedings during the Coronavirus Pandemic (25 March 2020) 

Costs hearings (24 April 2020) 

COMBAR guidance on remote hearings, version 2 (23 June 2020)

Chancery Bar Association collated protocols and practice directions relating to Coronavirus

Financial Remedies Court 

London FRC 

Administrative Court Information for Court Users (12 October 2020)

Administrative Law Bar Association, Guidance to Advocates on Remote Hearings (May 2020)

General guidance about remote tribunal hearings: Pilot Practice Direction: Video/Audio Hearings in the First-Tier Tribunal and the Upper Tribunal (2 April 2020)

Pilot Practice Direction: Contingency Arrangements in the First-Tier Tribunal and the Upper Tribunal (19 March 2020) 

Employment Tribunals in England & Wales and in Scotland – FAQs arising from the Covid-19 pandemic (1 June 2020)

Employment Tribunals – Hearing arrangements from 16 April 2020 (9 April 2020)

General Regulatory Chamber – Chamber President’s Guidance on Ways of Working during Coronavirus Outbreak (23 March 2020)

Health, Education and Social Care Chamber: Guidance from the Chamber President and Deputy Chamber President of HESC regarding the Special Educational Needs and Disability, Care Standards and Primary Health Lists jurisdictions: launch of the first paperless, digital tribunal jurisdictions (19 March 2020) 

Upper Tribunal Immigration and Asylum Chamber, Presidential Guidance Note No.1 2020: Arrangements during the COVID-19 Pandemic (23 March 2020), section E deals with remote hearings

Presidential Guidance on the Conduct of Proceedings in the Lands Chamber (Upper Tribunal) during the COVID-19 Pandemic (1 May 2020)

Social Entitlement Chamber (First-Tier Tribunal): Asylum Support: Arrangements During the COVID-19 Pandemic (31 March 2020)

FTT Tax Chamber, Updated Guidance for users on the Administration and Conduct of Proceedings in The First-Tier Tribunal Tax Chamber (25 March 2020)

Upper Tribunal Tax and Chancery Chamber, Guidance on the Conduct of Proceedings in the Upper Tribunal, Tax and Chancery Chamber during the COVID-19 Pandemic (23 March 2020)

Planning Inspectorate COVID-19 Guidance  (29 September 2020)

Family

FLBA News webpage

The Remote Access Family Court, version 5 (26 June 2020)

Covid 19 National Guidance for the Family Court (19 March 2020)

Court of Protection Bar Association, Guidance on Effective Remote Hearings (8 April 2020)

Remote Access to the Court of Protection Guidance (31 March 2020)

Court of Appeal guidance on children cases: Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583

Court of Protection, Additional Guidance 1 (13 March 2020)

Court of Protection, Additional Guidance 2 (18 March 2020)

Court of Protection, Additional Guidance 3 (24 March 2020)

Criminal

Livelink or Attendance Framework for London & South East Magistrates’ Courts (Crime)

Senior Presiding Judge letter to the Bar Council 17 July

CBA Covid-19 hub

HMCTS Video enabled criminal hearings: guidance for defence practitioners

HMCTS COVID19 Video Remand Hearing Instructions for Defence Advocates

LAA update on video remand hearings
 

Circuits

Each of the Circuits regularly publish coronavirus updates and vital information on their respective websites, including information relating to remote hearings. Please see the Covid-19 pages on their sites (hyperlinked below) for further information.   

North Eastern Circuit

Northern Circuit

Midland Circuit

Wales & Chester Circuit

South Eastern Circuit

Western Circuit

• Bar Council response to the Department for the Business, Energy & Industrial Strategy’s consultation paper on Pregnancy and Maternity Discrimination: Extending Redundancy Protection for Women and New Mothers 
• Bar Council response to further consultation on OPBAS fees

January 2021 - HMCTS has confirmed that there may be certain permissible reasons why pupils can leave home as part of their pupillage.

Pupil supervisors should bear in mind that the default is that – where possible – pupils should be permitted to work from home. However, there are certain exceptions.

Following the Prime Minister’s announcement on Monday 4 January 2021, every person living in England is currently considered to be located in a Tier 4 area.

Schedule 3A, Part 1, of The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020, covers the Government’s prescribed exceptions for leaving a home located in a Tier 4 area.

Non-practising or First Six Pupils

Under Schedule 3A, Part 1, Paragraph 6(3)(h) people may leave home if “it is reasonably necessary for the purposes of preparing for work through a skills programme consisting of (i) a work experience placement, or (ii) work preparation training”; or under paragraph 6(3)(k) people may leave home if “it is reasonably necessary for the purposes of professional training that is working towards an external accreditation recognised by a professional body”.

It is therefore possible for non-practising pupils to leave home for matters relating to their training and supervision, such as attending court to shadow a barrister or to attend chambers to complete a specific activity, if it is reasonably necessary. Please note that when attending court, it is wise to confirm with the court that the non-practising pupil will be permitted to enter, as there are some restrictions on numbers in court. The Bar Council judges that, while it is permitted, the starting point should always be to facilitate supervision from home wherever possible during the third national lockdown.

Where non-practising or first six pupils undertake work, for example, a noting brief, in addition to the above the regulations applicable to practising or second six pupils (below) will be relevant.

Practising or Second Six Pupils

Under Schedule 3A, Part 1, Paragraph 2(5)(e) people may leave home if “it is reasonably necessary … to fulfil a legal obligation or to participate in legal proceedings”.

This section of the Regulations allows practising barristers to leave their home, travel and stay in alternative accommodation in order to undertake work and fulfil their obligations to their clients and to the courts. This applies to any barrister fulfilling a legal obligation, including practising/second six pupils, third six pupils, and full qualified practising barristers.

Furthermore, barristers are included in the Government’s list of critical (or ‘key’) workers and fall under the heading of “those [persons] essential to the running of the justice system”.

It is also possible for practising pupils to leave home for other matters relating to their supervision, under paragraphs 6(3)(h) and 6(3)(k) (see above). More generally, any person can leave home for the purposes of work if “it is reasonably necessary”, pursuant to paragraph 2(5)(a).

The starting point should remain to facilitate supervision from home wherever possible; the question should always be (for barristers and pupils alike) is it “reasonably necessary” to leave home.

If you want to raise anything regarding your pupillage, please phone the Pupil Helpline on 020 7611 1415 or email PupilHelpline@BarCouncil.org.uk.

From 1 November 2020, all pupillage recruitment must adhere to the Pupillage Gateway timetable and AETOs must ensure that each stage of the advertising and recruitment process takes place in accordance with it (regardless of whether or not they use the Gateway to administer their process). This year, as a direct result of the current pandemic and ongoing financial crisis, alternative arrangements have been made to allow greater flexibility during the 2020/21 recruitment period. Whilst the Bar Standards Board strongly encourages AETOs to adhere to the timetable, they can alternatively make a waiver application to run their pupillage recruitment process any time between 1 November 2020 and 31 August 2021, but they cannot make offers before the closure of the Gateway i.e. before 09:00 on Friday 14 May 2021.

Pupil supervisors should reference their training programme and assess whether any elements can be completed remotely. The Bar Standards Board has also issued guidance about pupil supervision. As far as possible, pupillage supervision should continue.

Continuing Supervision

If it is judged that all or part of the supervision can be carried out remotely, and it will be possible to meet the competences in the Professional Statement in the current timeframe, AETOs should:

1. Ask current supervisors to complete a written report of the pupil’s progress to date. AETOs can review the training programme in line with this report.
2. Set out in writing to the pupil which parts of the training programme can be completed remotely, and which parts will need to be put on hold. The BSB's guidance has suggested some activities that may be appropriate, such as setting written exercises and organising advocacy exercises by video. The Bar Council has also published guidance to assist pupil supervisors who are continuing pupil supervision during the COVID-19 crisis.
3. Review current supervisors to assess whether they will be able to carry out remote supervision.
4. Be mindful of putting undue pressure on pupils to accept instructions that are not appropriate for their competence or level of experience. Reference should be made to the Handbook: “You must not accept instructions to act in a particular matter if… you are not competent to handle the particular matter or otherwise do not have enough experience to handle the matter” (rC21.8). We recognise that there is significant disruption to work patterns at present, but it is not appropriate to ask pupils to take on that burden without sufficient training or support.
   5. The decision to send pupils to court depends upon the function of the pupil at the hearing.  During non-practising pupillage and on other occasions when the pupil is not instructed in the case, the decision to send a pupil to attend court is one for individual AETOs.  In these instances, the Bar Council suggests that AETOs should exercise caution, examining the need for the pupil to attend in person, and be aware of the concerns that might be raised by the pupil. During practising pupillage, when a pupil is instructed in a case and is required to attend court in person, the pupil should follow the guidance in the FAQ section “Do I have to go to court?”, discussing any concerns with their supervisor.  In both instances, AETOs have a responsibility to ensure the health and wellbeing of their pupils and it is therefore important that they are reasonably satisfied of their pupils’ safety when attending court.

Extending Supervision

If it is judged that some of the supervision can be carried out remotely, but that it won't be possible to meet the competences in the Professional Statement in the current timeframe, and a decision is made to extend the pupillage, AETOs should:

1. Give consideration to paragraph 1.28-1.29 in the Bar Qualification Manual:
   “It is for the AETO and pupil supervisor to determine the impact of longer periods of leave (for example due to illness or bereavement) on the training programme and whether the period of pupillage should be extended to enable the pupil to meet the competences in the Professional Statement.
   
   If the pupillage is to be extended, the AETO must notify the BSB of the new date that the pupil will be completing pupillage by completing the Notification of Material Change in Pupillage form”.
2. Ask current supervisors to complete a written report of the pupil’s progress to date and set clear and measurable objectives as to what is expected of the pupil during the extended period.
3. Give the pupils a date to which they expect the pupillage will be extended.

Please bear in mind that this is an uncertain and upsetting time for pupils, as it is for most members of the Bar. We would encourage AETOs to be as flexible as possible and discuss their updated plans (and any limitations) with their pupil(s). Extending pupillage should be a last resort, when all other options have been considered.

If pupils are self-isolating under Public Health England guidelines, we recommend that AETOs continue to provide a pupillage award for at least 14 days (or 10 working days), as per the guidance on self-isolation periods. Please note that consideration should be given as to whether the pupillage should be extended in these circumstances. If the pupillage is to be extended, the AETO must notify the BSB of the new date that the pupil will be completing pupillage by completing the Notification of Material Change in Pupillage form.

Further information

If you are a pupil supervisor or you are otherwise involved in pupillage within your AETO, and you would like further support or guidance, you can get in touch with the Pupils’ Helpline on 020 7611 1415 or email PupilHelpline@BarCouncil.org.uk.  We are also keen to share good practice, so please get in touch if you would like to share your experiences.

See the Bar Council IT Panel’s guidance on Videoconferencing software, data protection and confidentiality

See the Bar Council IT Panel’s guidance on ebundles

See also the Judiciary’s general guidance on PDF bundles

Inns of Court library resources