‘Monday’ Message 02.06.20
Caroline Goodwin QC
In case you missed it, here is the link to the CBA response to the government proposals. Feel free to adopt it but please ensure that you have sent in your response by 4pm TODAY, or Friday 5th June by 4pm at the latest. You will see that what we say is that, although welcome the proposals are simply not enough, in other words, wholly inadequate.
Significant issues of principle have been recognised, such as the importance of:
- unused material. We must have been the only profession in the world, where long hours of graft have not been recognised financially. The Criminal Justice Select Committee has repeatedly recognised that unused material is an essential aspect of a criminal investigation. Consequently, we need to be remunerated at a proper level; we simply cannot be expected to read essential unused material whilst being paid a pittance.
- Likewise, we can no longer be expected to do cases with high PPE for no extra money. We have suffered the ignominy of being paid the same fees for a case with 300 pages as we are for 5000 and now the thresholds they suggest are far too high.
- Re cracked trials, why should we be penalised for acting efficiently?
Please make your views heard. What we do not want to happen is to have revisited upon us the nightmare that was scheme 10. It just beggar’s belief that we were put in that position. We do not want a repeat, so make your views heard, they count. This is your chance to speak. The CBA has fought tooth and nail, together with you, to restore the viability of the criminal bar. We need to have a socially diverse bar. We need as a profession not only to attract the best but also maintain their presence within our ranks.
The final date for closure of this stage has not been decided, but we need to bring pressure to bear. We have lost time enough already and we cannot afford anymore, so please send in your response to the link below.
THE MOVE BACK TO WORK –
Consistently, we have warned that the move back to court, in particular trials, would be slow and cautious. We know that this is impacting everyone not only in terms of morale but also financially. We don’t underestimate the effect that this is having, but the need for patience is important. We cannot run before we walk, but with the best will in the world, no matter how many times we say it, there is this real problem and it is not going to go away. It is the backlog.
Unless we make a freedom of information application for each court which we know can monitor its own caseload, we can only work with the published figures. Those naturally are out of date, but they are nonetheless instructive, particularly when we begin to look at the outstanding trials. For those of you who have a spare few minutes ,why don’t you have a look at the quarterly published figures, the Criminal Court Statistics 2019, in particular the pivot table that deals with the number of receipts, disposals and cases outstanding for trial cases in the Crown Court of England and Wales.
For ease we can simply look at the last quarter of 2019 as outstanding trials:
- Violence against the person 7034
- Sexual offences 2953
- Robbery 1596
- Theft offence 2696
- Criminal damage and Arson 1081
- Drug offences 4414
- Possession of weapons 1522
- Public Order offences 1004
- Misc crimes against society 3198
- Fraud offences 1041
- Summary non motoring 227
- Summary motoring 22
- Unknown 1597
These figures can then be subdivided down into court centres.
Eg Violence: Snaresbrook according to the figures, had 179 triable either way cases with 152 indictable only cases marked as outstanding. This can be done for each offence category, for each court. You can do that yourselves, but if we apply common sense, we know that reaching capacity to deal with this number of cases tells us we have an uphill task. What about the single case that is going to take 6 or 8 weeks to try out or the case that is going to take 3 to 4 days? Each is different, requires different resources but reflects as a single statistic. This is an elastic concept to say the least.
Considering we stopped trials in March, what has happened to these cases, and I don’t mean mentions, I mean trials? What has happened to the defendants or witnesses? Where have they disappeared to? If we took an average court centre with 4 courts and looked at what trials it usually handled and then looked at what had been adjourned and cross-reference it against what we anticipate we can achieve, it’s a long way short.
How are we going to manage all of these trials up and down the country?
Do we prioritise those in custody or those whose cases involve vulnerable witnesses? Do we just kick into the long grass the complicated cases with multiple defendants, where the allegations are serious? Of course we cannot, but we need to act soon.
It may have been my imagination, but I am sure that I heard someone, somewhere, recently say that the backlog has not increased. Really? All right then if that is the case and I do not accept that that is the situation, that still does not answer the question………How are we going to manage this present backlog of adjourned trials when we can only utilise one or two courts because of social distancing?
It does not have to be a knee jerk reaction. Everything so far has been measured and thought out. This too needs the same rigorous mindset, addressing the problem in a systematic way
We are not advocating judge alone trials; we do not want the jury trial system decimated for the sake of pounds, schilling and pence. Jury trials are a vital part of our social responsibility, where we are judged by our peers. What we want is a positive political case made, where the much needed investment is provided to ensure access to additional buildings. Cases can be reviewed, identifying those more suited to alternate buildings. PECS has significant responsibilities, but if some cases can be conducted elsewhere, that would leave the main Crown Courts handling the serious custody cases. We have options and we can be imaginative. Remote hearings have already assisted in a reduction of the foot fall into the court buildings. We can increase the speed at which we are deploying S28 hearings. There is much that we can do of a positive nature to manage this, but we need investment.
And finally, on this subject, as well as investment into an alternate buildings strategy we need something that we have asked for time and time again:
It’s very simple, to cut the backlog and to stop this excruciating delay, utilise more buildings and set the Recorders to work alongside the Judges.
MORE COURTS BEGINNING TO OPEN:
We know that a lot of people have been working very hard to get us back into our buildings to enable jury trials to proceed. In fact, yesterday Monday 1st June, I had the opportunity to go to Stafford Crown Court and see what was happening there. I would like to thank the Resident Judge, HHJ Montgomery Q.C. for showing me round the building. A clean court, well managed, gearing up to start. As an aside we must never let our buildings go back to the filthy state that they were in before. That court centre will, like so many others, be triaging its cases and so counsel will play a significant part. I have said it before, but active case management on your part will be vital. I urge you to look at your cases and make sure that you are able to take instructions even though it is not always easy. We need to be light on our feet and prepared.
I am going to Teesside Crown Court on Wednesday, HHJ Crowson has kindly offered an invitation for me to see what is happening there. Actually, I think it is a rouse to ensure I clear my rubbish from the robing room. I have booked a pantechnicon. Not sure it will be big enough, but I am hoping to find a clean and improved building. I will keep you updated.
As you know, from the safety survey, some pretty horrendous findings were identified, and these were submitted in a written document to the Chief Magistrate and HMCTS. Complaints have not just been about the cleanliness of the buildings but also about erratic listing which has meant that people are sitting around in buildings for long periods of time, which frankly is a situation which ought not be happening. As a consequence of discussions with the Chief Magistrate, these issues are to be devolved to the relevant circuits, so that they can manage and address the many problems. The junior bar is particularly vulnerable in this area of practice and so each circuit is going to have to work together with the Presiding Judge’s working party. The CBA will be represented at those meetings working with the Circuit Leaders, so that local problems can be identified but ensuring that a national picture is maintained. We are very grateful to the Presiding Judges and the Circuit Leaders who have been working tirelessly to ensure that practitioners are safe.
The relevant representative on each circuit is set out in the list below.
|Circuit||CBA / Circuit Rep|
|South East Circuit|
If you have issues to raise please forward it to the CBA, who will in turn copy in the relevant circuit leader, so that a full picture can be maintained.
I have been asked by the Bar Council to circulate the following survey, please take a moment to consider whether any of you would wish to participate?
It would be a 30-minute interview via Teams or Dial in. The questions in the interview are set out below. Alternatively, you could send a written response via email to the survey link below
- In your area, what has worked well during the response to Covid-19 and should be incorporated into CJS recovery plans? (Please can you be specific (e.g. Video Remand hearings) rather than general (e.g. Technology).
- In the wider CJS, what has worked well during the response to Covid-19 and should be incorporated into CJS recovery plans? Please can you be specific (e.g. Video Remand hearings) rather than general (e.g. Technology)
- What opportunities are there in your area where, due to the Covid-19 response, you are now able to move further/ faster than previously planned?
- Is there anything (in your area or in the wider CJS) that has not worked well during the CJS response to Covid-19 that you do not think should be incorporated into CJS recovery plans?
- Are any of these examples historical (Pre-Covid-19) issues?
- Do you have any other comments on CJS recovery that you would like us to note as part of this work?
Last week I wrote “We have raised these issues repeatedly and throughout, along with the Bar Council and CLs along with other issues such as payment for s.28 hearings, wasted preparation proposals, payments in circumstances where it has not been possible to achieve arraignment initially, trials which have stopped as a result of COVID-19 and will at some point recommence and we will update you in due course”
Today I have written to the CPS to chase up the issue of S28 hearings. This is an important area and as soon as I know I will report back.
WASTED PREP CLAIMS:
I have drafted a letter to Minister Chalkley to follow up on this issue. Just to remind those if anyone needed reminding, this would apply to any trial vacated because of Covid 19 and would enable a non -refundable fee to represent the wasted preparation involved in that matter to be paid to the advocate.
This is still an ongoing matter and again I will revert back to you all as soon as I know the position.
BLACK LIVES DO MATTER:
No-one can have watched the harrowing scenes of George Floyd lying pinned to the floor, where an officer from the Minnesota police, knelt on his neck for 9 minutes without being shocked and revolted. In every single way what was demonstrated was brutality at its worst. , a social justice organisation, found that Minneapolis police kill black residents at a rate more than 13 times higher than that of white people. How can this possibly be?
Civil rights and justice need to be ever vigilant. There is just no place in our society for racism. We condemn absolutely this mindless and grotesque behaviour; We stand shoulder to shoulder with all of those who have voiced their opprobrium, their disgust and wholeheartedly join with the world community in shunning this despicable act. Silence is not an option.
SOCIAL DISTANCING –
THERE IS ALWAYS ONE:
Some people just need to take social distancing too far! On the hush hush and on the QT, I understand that Jim Sturman QC is the new buildings champion at the Bailey, where he had to institute a seek and find policy, specifically for none other than Howard Godfrey QC. Howard was penning a chapter of his new book ‘Life in Lift 10 – A reflection on incompetence” when he became trapped in the said lift between the first and second floors. Jim, wishing to abide by all relevant policy advice, chose to shout down the lift shaft and ask “are you all right” this of course was done in a socially distant way……. Howard is now penning chapter 13 and the parts for the lift are still being sought on eBay!
FILM OF THE WEEK:
Stay safe and onwards and upwards