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CBA Monday Message – 10.07.17

Chair’s Update: 
Francis FitzGibbon QC


Flexible Operating Hours
On 6-9 August 2011, riots broke out in London and spread to other urban areas. By 10 August, 3,103 people had appeared in Court. 2,646 cases – 85 % – reached a final outcome. The Crown Court sentenced 1,396 of those convicted (65%).
In that moment of crisis, the Courts, police, prosecution and defence lawyers acted to resolve matters as rapidly as possible, working long hours with little complaint. It’s fair to ask whether the speed of the proceedings produced a just outcome in every case, but the will and the capacity to respond to the crisis cannot not be gainsaid.
If HMCTS wish to develop contingency plans for Courts to take on a higher volume of work on an ad hoc basis, let them say so. I still don’t understand what problem the FOH pilot is meant to remedy. Rather, it appears to be an experiment designed to see if the system will tolerate double shifts, but without a clear justification for the upheavals and costs (in many forms) that the pilot itself will create. HMCTS know the harm it is likely to cause: they have been told, by us and by all those who work in the Courts. It’s not rocket science.
The Bar Standards Board are considering whether the plans will hinder at least one of their objectives: encouraging an independent, strong, diverse and effective legal profession.
Although HMCTS want the pilot to start in September or October (have they thought about the effect of running it at the same time as the Section 28 procedure gets going nationally?) they have not yet appointed anyone to carry out the evaluation, nor have they fixed the evaluation criteria. They have now produced an Invitation to Tender.
If they want the Crown Court to run more efficiently, here are some proposals:

  • Hold trials, without interruption by other sorts of hearing, on Monday to Thursday.
  • Use Fridays for sentences, PTPHs, and any other ancillary hearings only, whether in Court or by phone/online.
  • Increase the number of sitting days.
  • Deploy enough judges and Recorders to stop Courts sitting empty.
  • Abolish warned lists.
  • Let an overworked Court give some of its cases to its less busy neighbours, to prevent some having backlogs while others do not.
  • Let Judges use case management powers more robustly to set time-limits on oral advocacy.
  • Introduce Defence Panels for advocates.
  • Let more Courts take on Class 1 and 2 work.
  • Adopt the Sitting Hours Protocol to stabilise the length of the Court day

We want criminal justice to serve the public in the best way possible. Please don’t make the mistake of ignoring the FOH pilot because it has not come your way yet – it may.
On 12 and 20 July 2017 between 10.00am and 4.00pm the Prison & Probation Service are holding an event for defence practitioners at HMP Wandsworth to ‘map’ the re-designation of some prisons as training or reception prisons (Wandsworth and Durham will be reception prisons, Highdown and Holme House training prisons). New video conferencing facilities are to be installed. If you want to attend, you are asked to contact Chris Holding by email.
Video Links for Defendants
I attended a ‘round table’ hosted by Transform Justice, on how of virtual or digital hearings and conferences affect defendants, especially vulnerable ones. Lawyers, academics, HMCTS, the police, and intermediaries were represented. The consensus was that in many places the facilities were inadequate – not enough links, variable quality, and lack of privacy were the chief complaints. Vulnerable defendants, or those we sometimes class as ‘difficult’, need face-to-face contact to trust their representatives – but not only them. Instruction-taking and advice-giving are hampered if you are not in the room.  We should not dispense with human contact just because it is convenient for some to do without it. Transform Justice invite practitioners to take part in this survey to give their comments.
The Lammy Review
On 3 July, David Lammy MP gave a speech with some preliminary comments drawn from his Review into race in the criminal justice system. He is a thoughtful and open-minded politician, with a big heart, as his responses to the Grenfell Tower disaster have shown. He finds good and bad things in our world, but it is encouraging to read that
Every so often the jury system comes under attack from those who say that it doesn’t work, or that the public can’t cope with detail or contain their own prejudices. But the news from my Review is that it is one of the parts of the criminal justice system that is working best.

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