Monday Message 07.09.20
James Mulholland QC
As incoming Chair, I want to start this message by paying tribute, in extraordinary times, to my predecessor, Caroline Goodwin QC. She has fought for the profession with unswerving passion and dedication. We are extremely grateful.
This year has been the most difficult in the CBA’s history. A system that was in crisis is now in meltdown. Many have not conducted a trial for over five months. As self-employed professionals, our income has been obliterated and most of us have been compelled to resort to modest savings, rely on overdrafts or to seek bank loans. As a sector, we have received no government support and the effects are now beginning to show as Chambers close, those that are able to do so leave the profession and the numbers seeking to join are significantly reduced. We are engaged in a fight for our survival. I will use all my energy to help us win that fight.
I appreciate that the longer the message the smaller the audience but please bear with me on this occasion. I need to set out the areas of importance over the next twelve months.
Increasing Trial Capacity:
HMCTS has stated that there are now 110 jury trial courtrooms in use. This is about 25% of the overall number; yet, there were 9,262 Crown Court trials vacated between mid-March and 26 July 2020 alone.
The answer is not to implement measures which impact negatively upon the quality of justice delivered. Right to jury trial by the random selection of twelve people must stay. Its aim is to ensure evidence is evaluated by a representative cross-section of society. It currently provides significant protection in that regard, particularly, for defendants from a minority ethnic background. Extended Operating Hours also do not provide the answer. They have been tried before and numerous problems were evident. These have not been resolved. It is clear that, after relatively sanitised pilot schemes, such hours could not continue for any length of time without, inevitably, leading to discrimination against all involved with caring responsibilities. Further, such a marginal increase in hours in a limited number of courtrooms would have a minimal effect on any backlog.
The answer is also not to extend the period of pre-trial detention for all in custody, arbitrarily, by a third where you penalise the innocent as well as the guilty. To do so invites delay rather than expedition, increases the numbers in prison and places far greater pressures upon those who work there. The extra millions this will cost should have been invested in getting other trial centres up and running.
Rather than extending hours, we must make proper use of normal operating hours. The introduction of plexiglass screens will make a massive difference and dramatically increase the space available to conduct trials. HMCTS undertakes in the to have 250 courtrooms ready to hear jury trials by the end of October. This is a welcome development from the earlier ambiguous statement that 90% of Crown Courts were open as few court buildings have been conducting more than one or two trials and some are still not doing any. It is vital that a regular breakdown of each Crown Court’s capacity is published setting out details such as the total number of courtrooms in each building able to conduct trials at any one time, how many defendants each screen adapted dock can hold and the number of individuals that can be held in the custody area so that informed listing decisions can now be made.
However, this is not enough. Nightingale Courts must form an integral part of any Recovery Plan. HMCTS was informed months ago that sixty of these additional courtrooms were needed to deal with bail cases and free up the existing Crown Courts for more serious cases yet there are still currently only four such courtrooms actively dealing with criminal cases and even these have not been fully utilised during the working day. One more courtroom in Peterborough is also to be used. Additional funding announced in the Recovery Plan will provide more courtrooms but none of these will be used for crime. It is astonishing that there has been such limited funding made available to increase the number of criminal courts bearing in mind the massive amounts of money freely distributed in other areas. A government cannot talk up the quality of our courts as an integral part of UK Plc whilst refusing to pay for a functioning criminal justice system. It is extraordinary that no-one in the Treasury appreciates the negative impact this must be having on our international reputation and economy.
Regular testing of those operating in all our courts also needs to become an integral part of ensuring safety as trials proceed. Each court needs to have mobile testing units so that potential problems can be avoided or addressed swiftly if they arise.
Strategy for justice:
How those in power treat a nation’s criminal justice system is a strong indication as to the value they place on democracy. In July 2020, England and Wales registered the lowest charging rate since records began: 7% of all recorded crime for the year to 31 March 2020, even though serious crime increased. This has fallen from 16% five years ago. The number of Crown Court cases dropped by a third between 2010 and the last quarter of 2019 yet the average time taken from offence to case completion increased from 391 to 511 days. Underfunding exists at every level.
Planning a coherent structure for Criminal Justice must be at the top of the government’s agenda. We need to put it there. I intend to liaise with all the stakeholders in the system from victims’ groups and defence solicitors to probation and the prison service as to the way forward. More details will be provided over the coming weeks. The Spending Review will focus our collective mind as to the next steps.
AGFS and CLAR2:
The implementation of CLAR 1 with its three accelerated asks comes into effect on 17 September. This is a modest level of progress after a generation of cuts but flaws remain and the hourly rates of pay are derisory.
The MoJ is currently discussing the nature of the CLAR2 Review body with us. It will consider the impact of low criminal legal aid rates on the system and its negative impact upon retention and diversity at the bar. For this to change, fees and hourly rates will need to be raised to a level which properly reflect the many hours of work criminal cases demand and a mechanism put in place to take account of inflationary rises. Publicly funded criminal advocates are consistently at the bottom of any payment league table comprised of self-employed professionals.
Thereafter, a permanent Independent Fee Review Body needs to be established for those who practise in publicly funded criminal work similar to that which deals with the remuneration of NHS Doctors and Dentists.
Earlier this year, I set up a national Remuneration Committee to provide continuity in relation to fees. It will need evidence demonstrating how fees currently paid are inadequate compared to the work undertaken.
CPS Fees Review:
A year ago, prosecution advocates received the first increase in remuneration in almost two decades. Further improvements came into effect in February 2020. However, these changes have only brought fees to the level of what are inadequate defence rates. We need to ensure that such disparity does not arise again. The latest review will take place this autumn. It will also be considering a .
Wellbeing and our Working Environment:
The stressful nature of the work we undertake and the demands placed upon us by an, under pressure, judiciary have increased greatly over recent years. This has resulted in a distortion of any sense of work life balance for the vast majority at the criminal Bar. Valerie Charbit is our wellbeing officer. You can contact her on to discuss anything about the Wellbeing Project and all personal discussions will be considered in strict confidence. However, this is not enough. We must address the cause of the problem as well as endeavouring to cope with the consequences.
The CBA and other organisations have prepared a draft protocol for Remote Hearings to ensure consistency across the criminal courts similar to that already approved for the civil courts. This is now with the senior judiciary.
Earlier this year, I set up a Judicial Liaison Committee to complete a national protocol setting out the parameters of fair working practices. In the autumn, we will invite discussions with the judiciary on this topic with a view to it being adopted by all courts in England and Wales.
Social Mobility and Diversity:
I came to the bar from state school and despite limited means. It is essential that others from every type of background continue to do so and the CBA is already planning events across the jurisdiction with this in mind. However, we also need to focus on helping them after they arrive. Many depart when they are not given a pupillage or later when they cannot secure a tenancy and, even if they do, many leave within a few years. The problem has been exacerbated by the financial implications of the pandemic which will, inevitably, reduce further the number of applicants accepted. I intend to set up a working group. Its aim will be to push through whatever changes are necessary to ensure that the young remain at the bar.
It is also vital that the CBA has a Young Bar Committee fighting positively for the interests of the junior criminal bar and I intend to set one up this autumn. Please would those interested in joining such a Committee contact either Aaron or myself.
Expanding the role of the CBA:
Participation by its members and a coherent structure are two features fundamental to any organisation’s success. My Vice Chair Jo Sidhu QC and I face massive challenges this year and there is a great deal of work to be done. A number of internal committees focussing on key areas will be set up. Get involved. This is your CBA. I promise that we will find a meaningful role for everyone who seeks it.
Head of Drug Services at Release:
Gary Sutton, one of the leading drugs experts in the country and Head of Drug Services at Release, the National Drugs Helpline, has sadly died over the weekend. Arlette Piercy is collating testimonials about his work. Please forward these to her at 25 Bedford Row.