Francis FitzGibbon

The Covid-19 regulations are draconian, inconsistent, obscure and inconvenient, but they are not unconscionable. They do not require me to do things that the state should never make its citizens do. They are proportionate to the threat that the virus poses to health services, and necessary to slow the spread of the disease and protect those services: or at least, they are arguably so. The law and the reasons for it make sense. The regulations are contained within statutory instruments. They alone are the law. They are the ‘rules’. They can be enforced with criminal sanctions. Guidance and advice are not rules and cannot be legally enforced.

‘A good jury turns into a little community,’ Baroness Hale has said, ‘working together in the interests of justice.’ As a jury advocate for over thirty years, I have always been impressed, and often humbled, by the care and dedication they give to their work. Academic research supports the experience of criminal lawyers that juries are fair, and do their utmost to bring in the right result. In every case, it isn’t just the defendant on trial: the state itself is on trial, too, in public, before its citizens. Can it prove its case to the high standard the law requires? Has it used its coercive powers wisely and lawfully? Have its operatives in the courtroom – the judge and the lawyers – conducted themselves properly?

The criminal courts and the jails that feed and are fed by them are ideal incubators of Covid-19. It comes as no surprise that an elderly prisoner has died today, either from or with the virus, and he won’t be the last. Courts bring people together in small spaces for hours or days at a time, in the courtrooms, the cells, and the jury rooms, not to mention the offices where the staff work. In the basement cell area of a court I attended recently, a single air-conditioning unit blew the same air through all the cells and into the interview and staff rooms. My colleagues have been complaining for years about broken plumbing, absence of soap and towels, and frequently filthy conditions.

Brenda Hale, the president of the United Kingdom Supreme Court, will retire in January 2020. She took an atypical route to the summit of the judiciary, having been appointed to the High Court from an academic career (she was a professor of law at Manchester University) rather than practice at the Bar. Her speciality was family law, considered by some in the profession as a poor relation, which it may be in terms of earnings, and intellectually soft, which it isn’t. Family cases throw up enormously complex and important legal issues, such as the rights of parents and children as against local authorities, cross-border disputes over children and property, and the ethics of medical treatment against parental wishes. Hale’s academic and judicial work has also focused on social welfare and mental health law, subjects far removed from the bloodless commercial work that fills the CVs of most senior judges.

The Stansted 15 – non-violent protesters who stopped an aircraft taking off with deportees to Ghana, Nigeria and Sierra Leone in March 2017 – have joined the ranks of highly motivated people willing to risk jail to stop a perceived injustice. The passengers on the flight included deportees who were subject to the Home Office’s then policy of ‘deport first, appeal later’, which the Supreme Court later ruled to be unlawful. The 15 got through the airport fence and blocked the path of the plane, causing the flight to be cancelled. Some of the deportees subsequently won the right to remain the UK. The 15 were found guilty under the Aviation and Maritime Security Act 1990 of ‘disrup[ting] the services of … an aerodrome, in such a way as to endanger or be likely to endanger the safe operation of the aerodrome or the safety of persons at the aerodrome’. They are awaiting sentence. The maximum is life imprisonment, but the question for the court is likely to be whether to give them a prison sentence at all.