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Monday Message 07.06.21

“Court capacity” and “effective use of audio and video technologies”

In a speech delivered to the Law Society last Friday, the Lord Chancellor delivered his own report card on the past 15 months’ response to Covid and provided some reflections on what lies ahead “as we take these first steps back to normality”. It reads like an end of term report with the Lord Chancellor confirming that, in co-ordination with the Lord Chief Justice, “for the next year at least”, they had “removed the usual restrictions on the maximum sitting days in the crown court”. It would be more prudent to see his review as a half-term report and reserve judgement as to whether there are to be any lasting improvements for all court users for, at least, the next 15 months.

We appreciate the Lord Chancellor’s awareness of a collective “Herculean effort” across the Criminal Justice System from court staff and judiciary to “legal professionals”. He concluded that, “[t]he action we took then means cases are being dealt with now at around pre-pandemic levels almost across the board in the courts and tribunals estate”. Our assessment of the Government’s own evidence is that, whilst the number of trials in the Crown Court taking place each week is at last increasing, the numbers are currently still below those achieved pre-pandemic.

The Criminal Justice system needs to take note that, in line with the intentions clearly laid down in the Police, Crime, Sentencing and Courts Bill, the Lord Chancellor and the MOJ firmly envisage a future whereby “the effective use of audio and video technologies…remain an integral part of our justice system” and one which can “increase the capacity of the courts, make the process less intimidating for vulnerable people… reduce time spent travelling to a hearing, and improve the transparency of our justice system.” This approach is in line with the consistent message that the CBA has given to Government and the judiciary that more court room space for essential in person criminal hearings can be freed up by the increased use of remote hearings. It is also consistent with the speech given by Lord Burnett CJ last July to the judiciary wherein he saw the increased use of remote hearings, where appropriate, as an aid to a more efficient use of the court estate and counsels’ time.

In my message of 22nd March 2021, I noted his vitally important words in that speech: “there is no going back to February 2020. In every jurisdiction there is a growing understanding of what is ideally suited for remote attendance, what is acceptable and what is not.” Lord Burnett told the judiciary that, “the idea that lawyers will be required to travel for an hour or two, wait around and then deploy arguments for half an hour before travelling back, has now gone.

The Lord Chancellor’s latest assessment of how technology should assist the courts does not linger over the detail of what is appropriate for remote hearings and what is not, leaving that decision to the discretion of individual judges. Meanwhile, the Criminal Bar cries out for a consistency of approach across the jurisdiction without which the interests of justice and court efficiency will not be served. The Lord Chancellor talks of “hearings” generally without discrimination between administrative proceedings and a jury trial.  There is silence about what the Criminal Bar contends is an immutable preserve of our justice system, the need to maintain the sanctity of the in-person jury trial.

Remote hearings, as we have repeatedly contended, should be for administrative proceedings where the absence of the defendants in court will not be prejudicial to the interests of justice so that the focus for increasing court capacity remains on dealing with a far greater number of in person, in situ jury trials where all the court participants can be present under one roof.

Full capacity not “full throttle”

The continued use of technology to allow more remote hearings should help a greater number of criminal barristers across a wider and more diverse demographic both to take on and to retain cases wherever they are held across the jurisdiction. The time it takes to prepare criminal cases to the standards expected of a functioning court system remains as high as it was pre pandemic and the rates of pay, whether counsel for the defence or prosecution, remain as low as before. The only way to retain a diverse criminal bar of sufficient size to meet the case demand coming through the system, whether for prosecution or defence, is to increase significantly the criminal legal aid rates. Talk from the Lord Chancellor “that our crown courts will be authorised to work at full throttle, to their maximum capacity” should be nothing other than a reference to judges sitting in all those court rooms that were shut for a full two years pre-pandemic. The greater frequency of remote hearings must not be used as a means by which Extended Operating Hours is introduced through the back door, bringing forward and pushing back the normal opening times of courts. Worryingly, this is already being canvassed at Northampton Crown Court. Any such approach would throttle the courts by destroying the working lives of so many criminal barristers, who will still have to work long hours, both before and after court, to prepare cases, all on poor rates of pay. Increasing numbers will continue to leave the profession, putting ever greater pressure on the ability of the courts to handle the large volume of outstanding cases they are seeking to reduce and turning the clock back decades on diversity in all its forms, asphyxiating the wider aims of a fair criminal justice system open to all.

We don’t need another hero:

One of the aims of the criminal courts’ recovery plan over the past 15 months has rightly been identified by the Lord Chancellor as that of “quicker justice for victims” but it cannot be the sole aim. Any recovery plan, or review of the wider criminal justice system, that fails to put the ongoing well-being and future diversity of criminal barristers and solicitors at the heart of such planning, will mean there will, simply, be no recognisable justice system left and it will then, inevitably, end up failing victims, defendants and complainants alike through further delays. Criminal barristers are among the “hidden heroes” the Lord Chancellor referred to in his speech, but they received no financial assistance as their income dried up as trials were cancelled or delayed by months or years. The public does not need any more heroes and criminal barristers do not want to be regarded as such. Over the last two decades they have repeatedly kept a system on its feet which has barely been fit for purpose, often, at significant personal cost. They now just want to be paid properly for the work they do. The public cannot continue to be abandoned as we lurch from one criminal justice crisis to another due to decades of underfunding and cuts to legal aid rates of pay, reliant on the hope of some heroic intervention when individuals are at their most vulnerable as complainant, witness or defendant in criminal proceedings. Criminal barristers do not want the crushing demands of working longer hours for poor rates in return for medals on the outside of their capes. They just want to wear their gowns at court during normal working hours for proper remuneration doing the work they have long performed without fear or favour in order to uphold the rule of law. The Criminal Legal Aid Review cannot come soon enough.

Legal Aid Census:

Please complete the census conducted by the Parliamentary Group on Legal Aid. It can be accessed here and closes on 11th June.

Wellbeing Research Project:

The University of Cambridge has invited CBA Members’ to assist with a research study on ‘The role of chambers as a structural attribute of self-employed practice in supporting self-employed barristers’ emotional labour’.

The questionnaire takes approximately 15 minutes to complete and can be accessed here.

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