In a rare Divisional Court decision in respect to the exercises of the power to activate a sentence in default, on the 6 May 2020, Lord Justice Holroyde and Mr Justice William Davis, gave judgment. The grounds of review were two fold, firstly that the Claimant had been denied representation, and secondly that even if he did have a fair trial there was a failure to apply anxious scrutiny to the decision to activate the sentence. 

​The Judges disagreed on both points. The law was generally agreed, and this case turns on its facts. 

Second Edition 6th May 2020 

Guidance from the Resident Judges of London and the South East with the authority of the Presiding Judges

This document is intended to give guidance on how the Resident Judges expect to approach listing of cases in the immediate future.  Local adaptions may be necessary. Changes will be required as the situation develops and in the light of further directions from the Lord Chief Justice.  

ATTENDANCE AT HEARINGS
1. All hearings by video or audio links are subject to a judge making live link directions. Any party wishing to make representations against the making of video or audio link directions should email submissions to the court AND post a widely shared comment on DCS by 10am on the day before the hearing.
2. Where a party has an application (for instance re listing a case or for live link directions) that requires judicial involvement it is helpful if it is made by email with “for the attention of the duty judge” in the subject line AND posted as a widely shared comment on DCS.
3. For most hearings, advocates will be expected to appear by video or audio link (as specified by the court and the court clerk will record attendance on Xhibit). Advocates attending by video link should wear business attire (not robes). Advocates attending by video must use a device that allows them to see all participants. A mobile device that does not does not comply with the law.
4. Defendants in custody will attend by video link when required.
5. Defendants on bail will not be required to attend in person (unless specifically ordered to attend) but where a defendant is entitled to attend:  
a. If the court is an open court the defendant may choose to attend the hearing in person;
b. If the court is a suspended or staffed court the defendant may choose to attend the open court at which the hearing may be observed, or by remote link following the procedure in paragraph 7b. below.
c. A defendant may only attend remotely if application has been made in advance and a judge has made a live link direction having been satisfied that the proposed live link is “appropriate” (CrimPD I 3N.4)
6. Unless otherwise directed interpreters must use the same platform as the other participants (ie. Skype for Business for SfB hearings; telephone for telephone hearings; CVP for CVP hearings)
7. Press and public may attend open courts to observe proceedings at that court or relayed from suspended or staffed courts. It will be for an individual to assess whether their attendance in person at a hearing is in accordance with the Government’s advice about necessary activities and social distancing.  
a. Press or other media may apply by email to the court for a link to live link hearings and such requests will ordinarily be granted. 
b. Any other person wishing to observe may only attend remotely if application has been made in advance and a judge has made a live link direction having been satisfied that the proposed live link is “appropriate” (CrimPR 3.2(4); CrimPD I 3N.4)
8. Any person attending in person may, subject to issues of security, identity or audibility wear a suitable mask.  
9. An advocate attending in person a hearing where others are attending by SfB/CVP must bring a suitable device so as to be able to join the SfB/CVP room so as to be visible to other participants.
10. Contempt of Court: the statutory prohibition on recording/broadcasting any court-hearing applies to any remote hearing and breach amounts to a criminal offence and CrimPD I 3N.16 provides:
Where a live link is used, the immediate vicinity of the device by which a person attends becomes, temporarily, part of the courtroom for the purposes of that person’s participation. That person, and any advocate or legal representative, custodian, court officer, intermediary or other companion, whether immediately visible to the court or not, becomes a participant for the purposes of CrimPR 1.2(2) and is subject to the court’s jurisdiction to regulate behaviour in the courtroom. The substance and effect of this direction must be drawn to the attention of all such participants.

LISTINGS
11. No case will be adjourned generally. There will always be a date for FCMH or a trial listing.
12. Where a judge is able to dispense with the attendance of the parties at a hearing because, in the opinion of the judge, the parties have provided adequate information in advance the matter will remain listed as a hearing (no parties).
13. In DCS cases Judges will place a widely shared comment so that there is clarity about each case readily accessible to the parties as well as any formal order. Equivalent arrangements will apply to non-DCS cases.

JURY TRIALS
14. Plans are being developed to restart jury trials as soon as appropriate arrangements are in place to ensure that it is safe to do so.  It is expected that this will start at a small number of Crown Courts which are most suitable because of their size or design and following assessment by Public Health England.  This remains under review and parties currently instructed in pending trials should, so far as is reasonably practicable, continue actively to prepare for trial. 
15. Vacated trials will be listed for FCMH (and CTL extension where an application is made) unless the court determines that a FCMH is not required. 
16. Parties should expect that at a FCMH and/or CTL hearing the court will want to review the case generally to consider with the parties whether a trial remains necessary or whether the case can be resolved in some other way.
17. Aside from such FCMHs if the parties consider that there would be a benefit in a FCMH (for example to seek a Goodyear direction or because sufficient pleas would now be acceptable or some other early resolution could be achieved) the parties should seek a direction for such a listing with submissions about the need or otherwise for the attendance of the defendant (such application should be by email with “for the attention of the duty judge” in the subject line  AND by a widely shared comment on DCS).  Advance notice (48 hours) is required for Goodyear directions.

CTL APPLICATIONS
18. Court users are referred to the ‘Coronavirus Crisis Protocol for the effective handling of Custody Time Limit cases in the Magistrates’ and the Crown Court, between the Senior Presiding Judge (SPJ), HM Courts & Tribunals Service and the Crown Prosecution Service’. https://www.cps.gov.uk/sites/default/files/documents/publications/Coronavirus-Protocol-for-CTL-cases-signed-27032020.pdf8.2 
19. The court may make a decision to extend CTLs at a hearing in public or in private. (CrimPR 14.2(2)).
20. Unopposed applications: There being no requirement for the parties to attend an unopposed CTL extension application hearing for the duration of the current emergency the court will, if requested, deal with an unopposed CTL extension application at a hearing in the absence of the parties and the defendant on receipt of the prosecution application and notice from the defence that the defendant is aware of his right to make representations and the application is unopposed (such notice should be by email with “for the attention of the duty judge” in the subject line  AND by a widely shared comment on DCS).
21. Opposed applications: Applications to extend the CTL which are opposed will be dealt with in the usual way, with the defendant attending by video link. The court shall not proceed in the absence of the defendant unless satisfied that the defendant has waived the right to attend or that it would be just to proceed even though the defendant is absent (CrimPR 14.2(1)(c)).
PTPH
22. Advocates are expected to comply with their duty of direct engagement (CrimPR 3.3); and to have considered the prospects of resolving the case and, unless guilty pleas are expected, to have ensured that the PTPH form is completed before the day of the hearing.
23. At some SE Circuit courts listed in Appendix A arrangements have been put in place (to apply to new PTPHs from 11th May 2020) so that, where NG pleas are indicated and the parties provide adequate information in advance, the judge may dispense with the attendance of the advocates and defendant at the listed hearing.  Appendix A sets out the process for this. This process has been approved as effective in securing remuneration for advocates by the Legal Aid Agency and the Crown Prosecution Service.  
24. Otherwise PTPHs will proceed in the usual way either at the first hearing or an adjourned hearing (to be determined by the court) with advocates attending remotely.  
25. D in Custody: In the absence of representations why this would not be appropriate the defendant will be required to attend by video link and the defendant will be arraigned, and directions given.
26. D on bail: (see bail applications below). The defendant will not be required to attend but may choose to do so (see para 5) If present the defendant will be expected to enter a plea. If not present the defence advocate will be expected to provide a firm indication as to the anticipated plea and directions will be given.
27. At a “not guilty” PTPH the judge will either identify a trial listing or direct a FCMH and give as full PTPH directions as can be given.
28. If the defendant pleads guilty or it is indicated that the defendant, if present, would plead guilty, the court will consider, in the case of a defendant who is present, whether to sentence straightaway, or give directions for sentencing on a subsequent occasion.

SENTENCES or LISTING FOR CHANGE OF PLEA
29. D in custody: These sentences to proceed if ready.  Advocates may appear in person or remotely by video link, and the defendant will ordinarily be sentenced over the PVL unless the defence identify reasons why a live link (video) direction should not be made.
30. Where a defendant is under 18 the court will consider whether, exceptionally, a live link (video) direction is appropriate to the case and the defendant’s legal representatives and YOT worker must make representations in advance of the hearing if they consider that it would not be appropriate. Arrangements for the participation of the YOT worker must be made (CrimPD I 3N13-15)
31. D on bail: The court will determine when to list for sentence and give directions including as to the manner in which the defendant shall appear.  Parties should make any relevant representations, including as to the manner of appearance or any need for reports by email AND widely shared comment on the DCS.

BAIL APPLICATIONS – APPEALS AGAINST GRANT OF BAIL – 48 HOUR BAIL HEARINGS
32. D in Custody: To be listed for hearing with advocates having opportunity to attend remotely by video link.  If the defendant is required, that is to be by video link if practicable. 

BAIL VARIATIONS
33. D already on Bail: There will be a judicial assessment of urgency.  The courts will expect to deal without a hearing with applications for variation etc based on representations.  If a hearing is essential, then the case will be listed with advocates having opportunity to attend remotely by video link.  The defendant will not be required to attend but may choose to do so (see para 5). 

INTERIM HOSPITAL ORDERS
34. To be listed for parties to attend by video link. If defendant required, that is to be by video link from custody or hospital if practicable.

PRODUCTION ORDERS; WARRANTS ETC.
35. To be dealt with administratively where possible.  If a hearing is required, then applicant to attend remotely and preferably by video link. Information on oath in support may probably be given over the ‘phone (in contrast to sworn evidence) but alternatively, and beyond challenge, a video link can be used with usual recording on hand-held or DARTS.  Personal attendance is not acceptable unless there are strong reasons why a remote link cannot be used.

DISMISSAL HEARINGS:
36. D in Custody: Subject to urgency and availability of court time to be listed for determination with defendant by PVL and parties attending remotely if possible. Parties may make representations via the list office.  
37. D on Bail: Subject to urgency and availability of court time to be listed for determination with parties attending remotely if possible.  Unless otherwise ordered the defendant is not required to attend but may do so in person if he or she so chooses. 

APPEALS
38. Appellant in custody:  In the case of appeals against conviction or sentence (with prospect of early release) the court will seek to identify means by which a hearing can take place. The parties (and in particular the Respondent if the appellant is not represented) must notify the listing officer of the need to give urgent attention to any such appeal. There will be a judicial assessment of urgency.  An early review hearing in such cases may be required to consider arrangements for the attendance at the appeal hearing of the parties and any witnesses.
39. Appellant not in custody: To be adjourned to a holding date 8 weeks hence (or other period decided by the court) for re-listing when matters clearer.

POCA HEARINGS
40. Whilst the Government’s two metre social distancing rule applies, it is not expected that contested POCA hearings will take place unless arrangements can be made that will accommodate that. Cases will be listed as video link hearings to identify to what extent they are contested and for any necessary adjournment or extension applications.  Self-representing defendants to be contacted and offered the opportunity to make written representations rather than attend as appropriate.

EXECUTED BENCH WARRANTS
41. These will be dealt with in the usual way, and advocates can appear in person or remotely by video link. Police to notify the court before bringing the person to the court building so that a judge may consider if production in person is required; whether an appropriate live link is available from elsewhere; or whether the person can be re-bailed from police custody without a formal hearing.

SELF-REPRESENTING DEFENDANTS
42. D in Custody: PVL to be arranged for FCMH as appropriate. 
43. D on bail: Listing team to contact the defendant if possible, to prevent attendance unless there is genuine urgency, to ensure communication of court orders and identify best contact information.

PROBATION:  
44. It appears that reports can still be prepared within a timescale of at least 5 weeks and there should be a continuing presence of probation at court (or available remotely). There may be difficulties in access to defendants in custody
45. It is unlikely that any stand down report could be prepared.  Interviews with defendants for the purposes of PSRs will probably be conducted by video or audio link.  Where such a report is ordered by the court for a defendant on bail he or she will be required to provide contact details.

DIVERSION AND LIAISON:
46. Services may be available by remote working.

WITNESS SUPPORT:
47. There is very limited or no provision for Witness Support.  The London IVWS may be providing support to individual witnesses.  Court visits by witnesses are not appropriate at the moment.

6th May 2020
 
Appendix A: 

COVID 19 - ADMINISTRATIVE PROTOCOL for PTPHs at the following courts:
Inner London; Kingston; Luton; Norwich; Snaresbrook

1. Not less than 7 days prior to the hearing - All parties to enter their contact details on the (right hand) side bar of the DCS file.

2. Not less than 2 days prior to the hearing - All parties to confirm by widely shared note on DCS that they have made contact and that:
a. the matter is to be resolved by acceptable guilty plea(s) or by the prosecution offering no evidence, OR
b. the matter will proceed to trial, the defendant has been given all of the standard warnings, a draft timetable (to include: trial estimate, type of listing sought, and dates to avoid) is set out, and that the PTPH form has been completed.
c. If all parties agree that, within normal parameters, a Judge’s view may assist in avoiding the necessity of a trial, an agreed succinct statement of the issue is to be placed in the applications section of the DCS. 

3. Not less than 24 hours prior to the hearing -
a. If the appointed judge determines that the attendance of the advocates at PTPH can be dispensed with the Judge will place a widely shared comment on the DCS, and
b. If the appointed judge considers it appropriate to respond to any request for a view etc. the judge will do so.

4. The PTPH will be listed in the normal way-
a. If the attendance of advocates and defendant has been dispensed with, the hearing will remain listed for PTPH (no parties); neither advocates nor defendant are required to attend, the Judge will announce the orders made and upload a copy.
b. Otherwise attendance is required. 
i. Defendants in custody will join by video link. 
ii. For defendants on bail, best efforts should be used to secure the attendance. Bail will continue (subject to potential variation of conditions) and, in the event of guilty pleas, sentence will be adjourned until the courts return to normal operation, subject to a review.
6th May 2020

As of the 30 April 2020 the Upper Tribunal are going to allow non-urgent JRs to be filled by email, and pay online in addition to urgent JRs

Procedure
Beginning on 30th April 2020 and until further notice, Judicial Review applications made to the Upper Tribunal (Immigration and Asylum Chamber) that do not require urgent or immediate consideration can be filed as follows:
1. By email to UTIACJudicialReviewApplications@justice.gov.uk, by post or at the fees counter when the counter re-opens.
2. Attachments to emails sent to UTIACJudicialReviewApplications@justice.gov.uk must not, in total, exceed 25 MB per email. If they exceed this limit the email will not be delivered.
Fees
Beginning on 30th April 2020, parties lodging applications via email that do not include a successful application for Help with Fees, will be required to make an online payment.
1. For professional users who already have a PBA account, payment will be taken in the normal way.
2. For others, upon receipt of the application contact will be made by a member of HMCTS staff who will ask you to proceed with online payment using a unique reference number.
3. Once the required fee has been paid, the application will be accepted and progressed.
4. Cheques/ postal orders will still be accepted if the application for Judicial Review is filed by post
5. Cheques/postal orders/banker’s drafts/credit and debit card payments will still be accepted if the application for Judicial Review is filed at a fees counter.
6. Other fees payable in respect of judicial review may be paid as described above.

Procedure
Beginning on 23rd March 2020 and until further notice, all applications for Judicial Review that require urgent or immediate consideration (using or including form T483/T484) MUST be filed as follows:

1. If the applicant is represented or unrepresented, and not in immigration detention or at a removal centre, by email to utiac.londonjr@Justice.gov.uk
2. If the applicant is unrepresented and is in immigration detention or at a removal centre, there is no change to the existing arrangements for filing by fax.
3. Attachments to any email must not, in total, exceed 15 MB. If they exceed this limit the email will not be delivered.
4. This applies to the whole of England and Wales; and accordingly the offices in Birmingham, Cardiff, Leeds, London and Manchester will not accept such applications by hard copy.
Fees
A party making an application as described above by email will be treated as having promised to pay to the Upper Tribunal, on demand, any fee payable for the application AND will be contacted by the Tribunal for the payment in due course.
Please note for any application as described above, the cut-off time is 4pm Monday to Friday (except bank holidays). If your application is not received by 4pm on a working day, please call the Out of Hours Court service at 0207 947 6260.

On the 6 April 2020, the Honourable Mr Justice Chamberlain, handed down judgment in the case of Chelsea Football Club Ltd v Gary Nichols  [2020] EWHC 827 (QB), the judgment is below. This provided an update on the considerations to be applied when considering whether to purge an individual's contempt, in light of the current Covid 19 outbreak, and the announcement of the Minister of Justice, on the 4 April 2020 that there was an intention to release a large number of individuals who were currently in prison and were deemed low risk. 

The Court had considered a similar issue on the 3 April 2020 LAKATAMIA SHIPPING COMPANY LIMITED​ v Nobu SU [2020] EWHC 806 (Comm), and found that the Contemptor should not be released from prison. 

In the Nichols case it was determined that there were a number of factors that were different in the case. Mr Nichols established that the terms of his imprisonment had changed significantly since the 25 February 2020, when he was held in contempt, and that the Court of Appeal on the 27 March 2020, had not reviewed the sentence in light of the change of the conditions within the prison estate. There had been a number of changes, not least that Mr Nichols  had a number of conditions listed within The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, specifically Schedule 1. Further the conditions within the prison were significantly different and more onerous than when he had been sentenced, in terms of the lack of visitation that had been achieved prior to the cancellation of all visitation to any prison. 

As such applying the test in Swindon Borough Council v Webb (trading as Protective Coatings) [2016] EWCA Civ 152, [2016] 1 WLR 3301, it was determined that Mr Nichols should be released forthwith. 

By way of update the Tribunal have confirmed that all listed hearings are now cancelled, and parties will be contacted. 

A. Beginning on 23 March 2020 and until further notice, all applications for Judicial review that require urgent or immediate consideration (ie using or including form T483) MUST be filed as follows:
1. If the applicant is represented or unrepresented, and not in immigration detention or at a removal centre, by email to utiac.londonjr@Justice.gov.uk
2. If the applicant is unrepresented and is in immigration detention or at a removal centre, there is no change to the existing arrangements for filing by fax.
3. Attachments to any email must not, in total, exceed 15 MB. If they exceed this limit the email will not be delivered.
4. This applies to the whole of England and Wales; and accordingly the offices in Birmingham, Cardiff, Leeds, London and Manchester will not accept such applications by hard copy.
B. FEES
A party making an application as described in paragraph A above by email will be treated as having promised to pay to the Upper Tribunal, on demand, any fee payable for the application AND will be contacted by the Tribunal for the payment in due course.
Please note for any application as described in paragraph A above, the cut-off time is 16:00pm Monday – Friday. If your application is not received by 16:00pm please call the Out of Hours Court service at 0207 947 6260.

Below is the letter from the Upper Tribunal

The recent flights to Jamaica have brought the government into conflict with the judiciary again. Whilst the media are unclear as to whether the injunction has actually been breached, it is a timely reminder of the power of the courts to ensure that the executive obeys its will. 

​Theresa May MP as the Home Secretary in 2012 became only the second Home Secretary to have been found in contempt of Court. The first Kenneth Baker, now Lord Baker, fell foul of the Courts in M v Home Office [1993] UKHL 5, which established the Courts power to hold the office of SSHD in contempt. In that case the Courts had ordered the then SSHD to return an asylum seeker to the UK, the SSHD disobeyed. The SSHD was held in contempt. 

In May MP cases, the SSHD had agreed to release an individual, within an interim order. The SSHD then purported to review that decision and not release the Claimant. HHJ Cotter QC sitting as a Deputy High Court Judge, disagreed that this was a lawful approach, and determined that the then Home Secretary was in contempt, and so joined that exclusive club. 

May PM, then managed to achieve something no other PM has ever achieved before, when her Government was found in contempt of Parliament at the end of December 2018. Although contempt of Parliament is a very different concept to  contempt of court, she did appear to be a trend setter. 

The so what of a SSHD being found in contempt of court for a minister is little. The minister would not be personally held liable for a contempt caused by her department. However having been found in contempt the first time, if a Minister were then again to fail to comply with the Order or remedy the breach it seems likely that the minister would then be personally liable. I doubt the current government is willing to test the Courts and find out what happens on the second strike. 

A great success for a serving Captain in the British Army, refused a visitors visa for his elderly mother, herself a widow of a Gurkha sought advice on challenging the refusal. Within 48 hours the decision was withdrawn and within 24 hours the embassy had made a short telephone interview, in order to reconsider the refusal. ​

The right advice at the right time is essential for immigration cases. A failure to challenge a wrong decision can lead to further refusals later on. In this case the early strong challenge meant that plans in place for the visit did not need to be changed. Adam offers a wide range of immigration services, see the immigration page. 

Airline delay claims are typical small claims in that whilst highly complex issues arise of both fact and law, they are generally of a low value. Costs can be recovered but these are fixed costs. Where a flight has been cancelled or delayed in excess of three hours, there is a right to compensation, so long as the cause of the delay was not for exceptional circumstances, such as a volcano eruption, and that the airline took reasonable steps to avoid the cancellation. 

EC Regulation 261/2004 (the “Flight Regulation”) creates a statutory framework for compensating passengers on regulated flights to compensation if the flight is cancelled or delayed for 3 hours or more.

Claims are relatively simple once you have established you were delayed on a flight, then it is for the airline to prove that you should not have compensation. In the majority of cases there should be no requirement to litigate at all. 

There can be some complications were the delay is as a result of air traffic control direction or political instability in the contrary of origin. The case of Blanche v EasyJet [2019] EWCA Civ 69 gives some indication of how a defence maybe run, which is below.

If you have been delayed by more than three hours please look at my pages on how to make a claim, which is here

As the traditional boxing day hunts come around, it is a timely reminder that this area of law is still far from clear. Hunts with hounds and birds of prey remain an area open to interpretation as mentioned in the interim injunction case of Fitzwilliam Land Company and others v Cheesman and others [2018] EWHC 3139 (QB). 

​A key issue in the response to this injunction was whether the hunt was illegal due to the use of hounds and birds of prey. The Hunt suggested that they were not acting unlawfully as they were hunting on an artificial trial laid, with hounds. On the occasion the hounds would find a fox, they would continue to flush the fox into open ground upon which a bird of prey, a Golden Eagle, would be used to kill the fox. The Respondents argued as recorded in paragraph 37 of the judgement that: 

The judge noted that it was persuasive at this stage that the Hunt may have been acting unlawfully when hunting in this manner. The Respondents did not take part in the final determination of the issues in the matter, and it appears it was never determined. As such it remains a live, ongoing issue. 

Adam has created a rough and ready calculator for those wishing to calculate damages for periods of which they have been unlawfully detained. The calculator  is here. The calculator is a rough and ready estimate. It does not replace legal advice and you should always seek independent legal advice.