COVID-19: CBA Update 25.03.20

Day 3 and it already feels like Friday.

We would just like to give you a quick update as to what is going on and how we are meeting the problems we face.

DCS ENGAGEMENT:

There are so many things going on at the moment and of course it changes day to day. This time last week we were being brave, soldiering on with trials and now we are in a totally different landscape.  Either way, we are continuing to ensure that the wheels of justice even if operated remotely are still turning. We urge you to ensure that in the coming days you endeavour to provide as much information on the on the DCS about your cases as possible so that the courts can make effective judgements as to how to handle matters.

FINANCIAL / FEES / ACCELERATED PAYMENT:

We hope that you were able to consider the letter from Rebecca Lawrence Chief Executive of the CPS and the fact that they are reviewing the way in which they can accelerate payments. The CPS will bring forward proposals for revised payment arrangements for work done prior to conclusion of a case. This is one of many asks that we have made. The same is occurring with the LAA and a soon as we are in a position to share information we will do so. We have also pressed home the need for expediency in processing to both agencies.  We know problems are occurring however the can do attitude and engagement is appreciated, particularly at a time when the self- employed such as ourselves appear to have little opportunity to benefit from the governments present proposals.

On that subject, we continue to lobby the Lord Chancellor, Attorney General and the wider Government. We understand that an announcement on specific measures for the self employed is to come within the next few days. The current provisions plainly do not assist the Bar.

We, along with the Bar Council, continue to have daily conversations and meetings with the LAA and CPS with regard to possible additional financial measures. This encompasses discussions about triggering payments within the regulations/MOG and other solutions not contained within the current provisions. These include ex gratia payments and payments to ensure wider business sustainability. We understand the very real concerns of members of the Bar and Chambers. We have emphasised the fact that many will go bankrupt and that this crisis is the final straw in terms of maintaining a strong independent Bar and having barristers able to conduct what will be the inevitable backlog of essential court work.

With regard to the LAA and CPS, all should be aware of the current provisions for Hardship Payments (reg. 21), Staged Payments (reg. 20) and Interim Payments (reg.18) under AGFS 11 and VHCCs. The regulations are fairly clear. CPS guidance on hardship etc is contained within the MOG.

TRIAL NOT PROCEEDED WITH:

We are acutely conscious of the need to ensure that the handling of trials will provide at the very least a basic fee for practitioners, such as the “trial not proceeded with fee”.  We have been seeking assistance from the Lord Chief Justice and the SPJ on this aspect of listing. We are in the process of writing to the HMCTS and the Presiding Judges just to alert them to this issue. We are receiving reports as to concerns re the blanket removal of cases administratively.  It is becoming more and more pressing to resolve.

Everything we are doing is new territory for all of us, so we must exercise enormous patience and be prepared to educate others at times when the most obvious of things would appear to be being missed. None of this is deliberate. It is just that there is so much going on and so therefore I do invite you to exercise patience, grit your teeth where the obvious is not happening and be as helpful and supportive as you can.

The fact is we really need to support everybody who is presently engaged in managing what can only be described as a crisis.

OTHER WAYS BY WHICH CASES ARE BEING PROGRESSED:

It has come to our attention that Courts are finding different ways of ensuring cases move forward without the need for any form of remote hearing. One way this is happening is that, in certain relatively straightforward cases, PTPHs are being replaced by a process whereby the form is completed and any representations by the advocates made in writing and the Judge, thereafter, makes directions. In such circumstances, the advocate has prepared the case and it is imperative that they are paid on the basis that an effective PTPH has taken place. We can assure you that we are raising this issue with both the LAA and CPS.

BAR COUNCIL WEB PAGE:

The Bar Council has created a helpful one page document with the current potential financial provisions available.

We particularly draw your attention to the following however must stress that we are obviously not financial advisors (if that needed to be said!):

1. Mortgage holidays of up to 3 months are available from the majority of lenders which appear to be granted on request. They appear to operate by providing a 3 month holiday during which no mortgage payments are made. Interest continues to accrue (unless government later says otherwise). The sums are then spread over the mortgage term and so a small amount is then added to the following monthly payments making it much more manageable.

There is a calculator here (again we can’t vouch for its accuracy & you’d need to discuss with your provider but may be useful).

Our understanding is that it does not extend the mortgage term. You will also want to ask your provider about whether it impacts on credit rating etc (from reports most banks are saying it does not but check). Many banks have set up an easy online application.  This also appears to be in the process of being extended to Buy To Lets which may assist those who rent.

2. The July 2020 payment on account has been deferred to January 2021.  It has also be reported to us that HMRC’s time to pay line is also being more flexible and so again that may help pending any other measures. Helpline set up: 0800 0159 559.

3. VAT: The payment for the forthcoming quarter has been deferred to the next quarter. We assume that returns will still need to be filed but check. Importantly as highlighted by the Bar Council (and noted by Crimeline) if you have a direct debit you will need to cancel that if you wish to take advantage of this option.

4. We are seeking clarification as to whether the government’s business interruption loans apply to individual Barristers.

5. Some of the other provisions outlined in the Bar Council document may assist Chambers, for example the above loans, business rates and the employees furloughing scheme.

6. The Bar Mutual and the Bar Council/BSB re. Authorisation to Practice have put in place deferred provisions for payment (see BC document for details).

7. Martin Lewis (MSE) has a very helpful coronavirus and financial measures webpage.

PRACTICAL ADVICE TO ENSURE PAYMENT FOR HEARINGS WHERE ATTENDANCE IS NOT IN PERSON/UNABLE TO SIGN IN:

In cases where attendance does not enable you to sign in to Xhibit (e.g. video link, Skype, telephone, morse code etc). There may not be a clerk at court/in attendance at the hearing to otherwise sign you in: 1. Put a widely shared comment on the DS (with names of all parties) and a note of the hearing in the briefest terms 2. Email to/from Judge. 3. Keep attendance note

JUDICIAL GUIDANCE:

Further guidance is coming from the Judiciary. We have been asked to circulate the following guidance and are happy to do so:

From the Honorary Recorder of Chester.

The Listing Policy from the Resident Judges on the South Easter Circuit.

PUPILS:

We are acutely aware that pupils in particular are in a vulnerable position at present. There are many areas of concern, financial, work obligations, chambers management, training and qualification among others. We are considering all of these.

The Bar Council has provided some useful assistance.  There is also a helpful protocol from the LSWU. We are currently considering its contents but have been asked to circulate it. We urge any pupil experiencing difficulties to contact us. This is vital. Do not be afraid to come forward and say something. We will do everything in our power to provide support, as no doubt will the Bar Council and Circuit Leaders. Such contact is in confidence.

CRIMINAL PROCEDURE RULES AND EMERGENCY LEGISLATION:

We are responding to this at the moment and the eagle eyed amongst some of you will have seen many proposals including videolinks/alternative methods of hearings and the move to reduce the number of jurors in times of emergency. These changes present many challenges and the civil liberties need to be carefully considered.  Even in times of emergency we need to have regard to the wider position and so we are feeding into debates, and preparing and drafting responses at the moment.

CUSTODY TIME LIMITS:

There is a working party considering this. It is a live and important issue and is being addressed not only by the bar but by the wider criminal justice team which incorporates members beyond the bar.

CLAR
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COURT STAFF: THANK YOU:

One of the first lessons we learn as junior barristers is that the person really in charge of the court, is the usher. We would like to acknowledge all the work that has been done over the last few weeks and indeed is going on as we speak in the magistrates’ court with members of staff holding the fort. We are also aware of all of the administrative staff in the background, including list officers, clerks and security.  Without them the system, no matter how it is being run, could not function properly. So thank you.

Please keep an eye on the CBA twitter feed which is updated throughout the day as developments take place. Things are moving very quickly.

Yours,

Caroline Goodwin QC
Chair, Criminal Bar

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