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Monday Message 04.01.21

Chair’s Update:
James Mulholland QC




A new year has arrived bringing old problems to resolve. Most of England and Wales is now in Tier 4 and new, more virulent strains of Covid, up to 70% more transmissible, sweep the land.  Daily infection rates are well in excess of four times the figure they were a month ago and nine times that at the height of the lockdown and are set to rise further. Schools are closed for two weeks in London and the South East. Where they remain open, the National Education Union has advised its members that it is unsafe for them to attend their workplace at present. Secondary schools have been asked to provide tests for five million people in the next week. Yet, in the midst of this confusion, the Criminal Bar is expected to return to business as usual.

In its last update of 31st December, HMCTS repeated that public health experts have confirmed that existing measures, if followed, are sufficient to deal with the new mutation of the virus. As a consequence of meetings with the CBA, HMCTS has now agreed to introduce a complaints procedure whereby reports of any breaches of existing safety measures at court centres will be quickly addressed. This will include a deadline by which staff at individual courts must respond to the issues raised and take remedial action. An escalation process to HMCTS’ Delivery Directors is also to be put in place which will ensure that ongoing concerns are dealt with, again, within a short timeframe.  Secondly, HMCTS has now agreed to publish a list of all criminal courts where users have subsequently tested positive for the virus setting out the numbers involved and other relevant information. This will be updated on a regular basis and will enable members of the bar to make their own assessment of the situation in a particular court environment.

However, considerable uncertainty remains as to the risks posed by the virus and further measures need to be taken. Whilst the wait for all key workers to be prioritised in relation to the vaccine continues, there needs to be far greater access to testing on site with rapid results. If testing was made available for the lorry drivers piling up at Dover and other ports before Christmas, it must be made available to help address backlogs as trials queue up for a courtroom. If it is sufficiently important that our children are tested then it must be sufficiently important for all court users to have kits present at court if criminal justice is to continue to function. There also needs to be testing of defendants in custody before they arrive at court for trial. Whilst court rooms are generally large and well ventilated, cell areas are not. We need to learn important lessons from the discharge of individuals from hospitals into care homes. Additionally, mass testing needs to be considered in situations where individuals in a particular court have tested positive for the virus.

It has been said, repeatedly, since July that dozens more Nightingale courts than currently exist are essential to deal with the constantly increasing backlog of criminal cases. It has always appeared highly illogical to suggest the introduction of extended operating hours in the midst of a pandemic. Doubling the volume of human traffic through the same restricted space for a significantly longer period than normal during the course of a day brings added risk of infection to all those who attend trials in such a courtroom and, therefore, further delay if those trials are abandoned. With rates soaring due to more infectious variants, to pursue such a scheme now would be of grave concern. A fundamental strategy has to be to increase the number of rooms, buildings and space available to reduce footfall and ensure that trials can be conducted in a safer environment. A much greater number of public buildings need to be used and, where possible, secure docks introduced. The issue of cost can no longer take precedence over safety and justice.

We need clear guidance in the form of a protocol from the senior judiciary as to the approach to be taken in relation to remote hearings for the foreseeable future. HMCTS has stated on many occasions that courts are not close contact settings. However, simply, stating that does not make it so and it, obviously, depends upon the number of court users attending a building at any one time as well as over the course of a day. The greater the numbers; invariably, the closer the contact. Further, it needs to be borne in mind that insisting upon the physical presence of barristers at court requires the vast majority to take public transport where compliance with basic safety requirements is far from guaranteed and the risks are likely to be considerable. A glance at the court listings for today shows radically different approaches adopted by courts in Tier 4 as to the use of CVP. We need to keep the criminal justice system operating, with the emphasis on trials, but we need to do so with the safety of all a paramount consideration. Rules of practice for judges to follow in the exercise of their discretion are vital at this uncertain time.

As we move forward, it is important that we examine the existing data properly, particularly, in relation to Crown Court trials. Whilst the number of trials listed each week has some relevance it can be misleading. What needs to be considered are the number of effective or cracked trials when compared with those that are ineffective or have been vacated. For example, whilst the MOJ has revealed there were 1,654 trials listed in Q3 2020 (July to September), over 15% of those were ineffective. Meanwhile, during the same period, there were 4,656 trials vacated. The latest statistics for 4 October to 22 November reveal a similar theme. The combined number of vacated and ineffective trials each week amounts to more than two and a half times the number that were effective or cracked. Meanwhile, receipts into the Crown Court continue to be significantly higher than disposals.

Criminal Legal Aid Review:

On 21st December, the MOJ announced that the Criminal Legal Aid Review led by former judge Sir Christopher Bellamy will begin this month. The Lord Chancellor has stated that he wants the Review to ensure that ‘the criminal legal aid market remains effective and sustainable, while reflecting the diverse society it serves’. We echo his comments. However, whilst we welcome the beginning of this process, it has to be acknowledged that it is long overdue having, initially, been proposed in December 2018 and represents yet another example of the fraught relationship between Government rhetoric and deed when it comes to taking action to increase fee levels for publicly funded criminal legal work and despite oft repeated concerns from on high that a vibrant, independent Criminal Bar is one of the keystones to ensuring equal access to justice for all members of society.

During the two year period when the Review was in gestation, many criminal barristers were forced to leave the profession as a consequence of completely inadequate rates of remuneration which fail to reflect the work conducted and other exceptional pressures placed upon members of the Criminal Bar who travel the length and breadth of our jurisdiction to act on behalf of some of the most vulnerable in our society, be they complainant or defendant. Unless positive action is taken to stem the exodus, there will, soon, be insufficient individuals left to deal with the increased court capacity and help reduce the backlog. The Review arrives at a crucial time and it needs to act swiftly and with authority to reverse the decline.

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