Monday Message 03.08.20

Chair’s Update:
Caroline Goodwin QC

 

 

 

THE ELEPHANT IN THE ROOM
COVID WORKING HOURS:

The CBA has had strong words recently about our working hours and we will continue to do so. We were very clear when we said that the profession will be asked as to its final view on this subject. You will indeed be asked, but that question needs to be put at the right time and from a position of being informed as to the practical realities of this scheme.

DISTRUST OF HMCTS:

Let us not pull our punches. The bottom line is that few trust HMCTS. The profession feels that even if something was a failure, that HMCTS would put such a spin on it that regardless of any failings, it would be heralded as a success and ushered in.

Everyone believes that the Covid Hours Court is merely a means to force the profession into extended hours, with late night courts becoming the norm at a later stage; meaning, once we have co-operated we will have that used against us. The backlog and Covid 19 has raised the issue again albeit in a different format.

THE MENARY GROUP:

This has been a judicially led group, with over 40 participants.
Take note of this point please: we were told that this group was not considering extended operating hours as a permanent solution and that this was not a precursor to extended hours being brought in as the norm.

I have said that just so that we know the position and that HMCTS can be reminded of that. Further, in discussions which have touched on many, many matters, the Lord Chancellor, the Rt Hon Robert Buckland QC MP has stated that any covid working hours would have a sunset clause.

We are not at that stage, but that needs to be held in mind as we will not forget it.

You are aware, because we have kept you informed, as to the schemes that HMCTS has previously proposed. The initial pilot at Liverpool was withdrawn because it was viewed as unworkable.

You know that the subsequent desktop exercise as conducted by HMCTS was panned.

The obvious and accepted points as regards extended hours being discriminatory were repeatedly made. The issues relating to dealing with witnesses attending on time or the ability to transport defendants to a chosen court centre on time, such that counsel may have a conference were matters all forcefully made. The concerns about jurors being able to deal with their own personal arrangements and be in court ready to start a trial at 9am were also pointed out. The fact that the trials themselves may also take longer and frankly be less efficient was another factor expressed. Let us be crystal clear, we have all expressed our gravest concerns and doubts about this idea.

Thus, it was somewhat of a surprise to all concerned in this group, particularly those looking at the Crown Court issue, to be told that HMCTS wanted to nonetheless try a different model out and road test it across the circuits, thus not just confined to Liverpool. In essence, ploughing on regardless of all that had been raised.

THE BLENDED MODEL:

We have now been presented with what is described as the “blended model”. This was conceived by HMCTS and we sent the information out as soon as we could on Thursday.

The CBA did not come up with this scheme.

In simple terms, the idea is that those who cannot ordinarily manage a 9am start or handle a 6pm finish can ask to go into the standard hours court. This is to assist counsel with managing their cases. You will make the final decision on this.

Please read HHJ Menary QC’s listing guidance. It is important than when considering this pilot that you read the documents as to how it is proposed to operate, so that you can make your own mind up.

This “blended court” allows for 2 trials a day to run in one court, in order to increase the flow of trials. In the next-door courtrooms, there will run the standard hours court. We all know that the number of trials running at the moment is not sustainable.

The “blended” model consists of many moving parts. It does not only stand or fall on the success of the listing arrangements as envisaged by HHJ Menary QC, but also the other constituent parts of how we would ordinarily start a trial:

  • Is the jury available on time
  • Has the defendant arrived on time
  • Was there sufficient time for conference and instructions
  • Was anything gained at all by this exercise
  • Was witness care available
  • Was counsel adequately supported

The pilot centres are to follow the listing advice in the guidance. There is much misinformation out in the public domain and so it is safer, as we indicate if you read the guidance and view the models for yourself.

Access the Guidance here

Access the Covid Model here

SHOULD WE COOPERATE WITH THE PILOT?

This is a question upon which there are many views. Some people say as a point of principle we should not engage, that it is divisive, and we have received nothing by way of support from the government during the crisis and further that HMCTS is treacherous and untrustworthy. Others say, we must get back to work because defendants are in custody and witnesses have cases that need to be heard. This provides a means of increasing the number of jury trials, but we also have to protect our members.

The pilot is to be rolled out to up to 7 courts on circuit. There will be one Covid Court Hours Court in each court centre.

We know presently of Hull, Stafford, Cardiff, and Snaresbrook.

HHJ Thackray QC has arranged a Q and A session at Hull Crown Court on Tuesday 4th August at 13:00.
Other court centres are likely to follow suit. When we have more information, we will let you know.

THIS IS NOT A DONE DEAL:

Our view is that in order to consider this, we must do so from a position of informed knowledge and that means trying the pilot.  The amendments to the scheme attempt, according to HMCTS, to address the injustice of schemes previously suggested.

We need therefore to test this, and we will then ballot the profession.

DATA COLLECTION:

We need to make the data collection as thorough as possible.

A detailed questionnaire will be available for download from the CBA website.

It will cover both prosecution and defence, with questions ranging from attendance of witness at court, jury and the success or inconvenience of the scheme. We would like each counsel involved to document their experience.

This way we will have our own data and not be reliant upon HMCTS.

In addition, there will be a link, where comments from trials that are running during this period can be posted. This is important so as to enable practitioners to see first-hand how the scheme is fairing. Personal experiences will be needed, and this is important because of the difference generally in how circuits operate and therefore this will be data collected on a national level.

  • If you have a disastrous experience, share it
  • If you have a good experience, share it
  • If the defendant was late, say so
  • If you had inadequate time for conference, say so
  • If you could not get into the cells in time, say it
  • If the cells staff adopted a policy that made the process efficient, say so
  • If the OIC was late, say so
  • If you felt, you were discriminated against say so. We need to know.
  • If the wrong type of case was listed, tell us
  • If your application to move from the Covid Hours Court was rejected, say so. For instance did your opponent agree or object to the listing request being accommodated?
  • If listing failed to deal with your application, say so
  • If you felt that the trial was less efficient, say it
  • If you feel a certain type of case is better suited to the list, say so
  • If this affected your ability to manage your childcare adequately or at all, say it
  • If this cost you more, say it, we want to know.
  • If this scheme worked for you say so, tell us why

The public blog link will be a source of valuable information, so please use it.
The listing guidance is there. We do not advocate this plan but the experiences good or bad need to be shared so that we are all informed on how this has worked.

None of this prevents those who will say no on a point of principle, from saying no, but ensure that you are informed of the facts.

QUESTIONNAIRE:

We attach a draft of our questionnaire so you can see they type of data we wish and need to cater for.

THIS IS NOT THE FINAL VERSION AS WE NEED TO SEE HOW EACH COURT CENTRE IS OPERATING THEIR COVID COURT.

We will inform you when we have the final draft.

Draft Questionnaire

FORTNIGHTLY REVIEWS:

Today, we attended a meeting with HMCTS and HHJ Aubrey QC from Liverpool, HHJ Menary QC being away. We have just discussed the fact that this experiment needs review. Thus, whilst the pilot is being undertaken, each court centre will be the subject of a fortnightly review by HMCTS, the Bar and the relevant stakeholders. This will be an objective review, as it is not in anyone’s interest to operate a system that brings with it, its own inefficiencies. At present it is envisaged that each chosen court centre will operate the scheme for 4 to 6 weeks. The final shape of the structure for review has yet to be determined. It is important that it is a clear and transparent review process.

Further, we have emphasised to HMCTS that this experiment is predicated upon the Menary guidance and that the consistency of approach is vital. Throughout this period there will need to be a sharing of information, considerable engagement and listening. That is why your questionnaire responses will be so important.  We need to be able to feed that detail in as it affects a whole variety of stakeholders.

All of this will mean that when the profession is balloted, it is doing it from an informed point of view.

We said the profession would be consulted and that we would be the masters of our destiny. We will be and you will be asked the question.

We will update you further when we have more information.

FINANCE:

As soon as this came to the table last week, we sought to speak to MOJ. We had a meeting to discuss CLAR but amended that to include this issue. We have made initial representations, repeating what has been said. You will see the questionnaire address questions relating to cost. We have been clear with them; this needs funding. If they do not, this will be part of the issue for us to consider.

OTHER TRIAL COURT MEASURES:

We are looking forward to the announcements in respect of the provision of plexiglass in a large number of court rooms this week and the addition of Portacabins for use by the jury. These we hope will bring on stream many more courts and in due course may see the end of the need for us even having to contemplate a 9am start or 6pm finish.

In the context of the above two developments, we remain of the view that the Covid Court hours proposal is inefficient, is staff intensive and has too many variables to make it an efficient option. We repeat our request for increased investment in the courts, in particular extra buildings. Inevitably our minds move to Nightingale courts. We understand that there should be more coming, but we have not been provided with details. The lack of transparency is frustrating for us all.

CLAR 1:

The write around is being completed and the SI will be laid in the coming fortnight.

HMCTS Q and A:

Susan Acland-Hood is conducting a Q and A on 4th August, this time via the Bar Council.  Ask your questions direct. The head of HMCTS will be available to deal with your questions.

CORRECTION:

As ever, we endeavour to be accurate in that which we report and we erroneously reported in a previous MM that Stafford Crown Court had only sat for 10 minutes on a case. This was an error, as that court was being used as a “third court” in a trial and indeed took an extra case, hence it registered on the statistics as a ten-minute sitting. A wholehearted apology to those at Stafford Crown Court, as we know that they have worked tirelessly to get us up and running.

FILM OF THE WEEK:

ARMAGEDDON – Need I say more?

Stay Safe

Caroline Goodwin QC                   James Mulholland QC
Chair                                                 Vice Chair

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