Monday Message 08.02.21
James Mulholland QC
There is no doubt that the future will remain challenging for the Criminal Bar. Nearly eleven months on from the onset of Covid into our criminal justice system and three years on from the beginning of the CBA’s active campaigning to restore funding back into legal aid and our criminal courts, it is time to consider what more needs to be done. I will start with the most recent developments. There are signs that HMCTS and the wider MOJ are, at last, listening and beginning to take sensible decisions based on evidence, tirelessly presented, and solutions, repeatedly, offered by the CBA. There are signs that the message is getting home to the Treasury and has also begun to filter across to the Home Office. It is more important than ever that we continue to make that message clear across government at all levels. Now to translate the message back into pounds, shillings and pence for criminal barristers.
It should not have taken the third wave of a pandemic, with warnings this weekend from its scientific advisors about a possible fourth wave this summer, regardless of vaccinations, for government to wake up and listen to what the Criminal Bar has said and lived with for far too long: that a defunded criminal justice system denies ordinary people the justice they deserve. There are indications, however, that the tide may be about to turn.
Court Capacity: extra court rooms:
Alterations are already taking place to 70 courtrooms across the jurisdiction to increase their size and to enable 4-7 handed trials to take place within them by Easter. Such a practical approach is long overdue bearing in mind there were, in excess of, 120 large, multi-handed trials last autumn without a home. HMCTS is soon expected to confirm a third wave of Nightingale Court buildings comprising mostly criminal court rooms spread across many of England’s major cities where the need for greater capacity across key circuits is most pressing. The total number of extra criminal court rooms should approach 30 out of an expected total of 60 Nightingale court rooms ready for use by the Spring. The CBA made it clear within days of the closure of the Crown Courts in late March 2020 that 50-60 extra criminal courtrooms of this type would be needed to tackle a backlog which had deliberately been left to rise before the pandemic and which would further increase, dramatically, with the introduction of social distancing measures. We have been arguing for government to allow more Recorders to be used to deal with cases since April 2018 and against the restrictions which kept perfectly useable courtrooms shut from April 2019 whilst complainants and defendants sat waiting years for trials to be heard.
The risks in relation to the return of the virus will, inevitably, remain, particularly, when one cannot be sure about the period of immunity provided by vaccination. This will mean that CVP must continue to play a key role in limiting footfall through court buildings for non-jury trial hearings whilst the number of buildings used for jury trials must continue to increase. The use of additional court rooms is the only sustainable, safe, way to address Crown Court capacity.
Court incapacity: Extended Operating Hours:
We said no to Extended Operating Hours Courts in 2020 as we did in 2017/18. We held firm; HMCTS has pulled back. We opposed government on the basis that discrimination was never acceptable and that principle cannot be sacrificed to expediency. We said that the Criminal Bar stands together to protect those amongst its ranks who are the most vulnerable just as we fight for the interests of the most vulnerable in our society. With the assistance of Mishcon De Reya and others, we went to the Equality Commission and were prepared to take matters further. Government has now stated that there is no specific plan to proceed with the scheme. This is the right decision. Leaving aside its other deficiencies, including bare assertions based on no evidence that trials were more efficient under EOH, to introduce such a scheme in the midst of a pandemic does not bear scrutiny. To do so afterwards, when vaccinations will allow more courtrooms within the estate to open, makes no commercial sense. It would cost government more because although neither trial had sat a full court day in the one courtroom and both would take longer to conclude, the two trials would be counted as two court sitting days with two sets of judges, barristers, court staff and juries paid a daily rate. It would also be an extremely short term and high-risk measure when the return of the virus in the summer or later has been foreshadowed. We have forced an unwritten truce. Whether we have won the war will depend on whether anyone is sufficiently foolhardy to seek to introduce such a scheme yet again. They will find us ready if they choose to do so.
We have told HMCTS repeatedly that it was not doing enough to ensure the safety of the courts. We insisted on proper complaints procedures to deal with breaches of safety measures in court buildings and an escalation process to Delivery Directors who needed to react quickly to a situation and to respond within one working day. Those processes are now in place. We said Lateral Flow Testing needed to be made available in court buildings. HMCTS is halfway through a pilot in Manchester with the aim of making such tests available in large court centres throughout England and Wales in March. We said that prisoners must be subject to such testing before being brought to court. This is now taking place at HMP Bristol and will soon be extended to courts throughout London. It is essential that it becomes a measure adopted by prisons throughout our jurisdiction without further delay.
I continue to meet weekly with HMCTS officials to pursue many other matters. Concerns remain about compliance with safety measures in individual court centres. HMCTS needs to provide marshals, taken from existing court staff if necessary, to ensure compliance in every court building. HMCTS must be more transparent as to Covid related issues in its courts. As much evidence as possible needs to be provided when an outbreak occurs or when a court is closed setting out the source of the outbreak, the result of any subsequent investigations and any lessons learned and actions taken to reduce risk in the future. HMCTS audits of court centres need to be published as do HSE investigations of court buildings. This information needs to be easily accessible on HMCTS’s own website. We are also urging vaccinations for targeted court users as we move into the spring.
The CBA Safety Committee has been busy this week contacting Crown Courts throughout the jurisdiction in order to acquire their Covid Safety Risk Assessments. Each court has been asked to provide their most up to date report. .
If you cannot find such a document, then it has not been provided. Next week, the Committee will also endeavour to acquire Risk Assessments compiled by individual Magistrates’ Courts.
CLAR 2: Repaying the Criminal Bar:
The CBA has campaigned for many years for successive governments to re-invest in the criminal justice system to restore timeliness to investigations and charging decisions; to ensure prosecutions reach their rightful conclusions for the sake of complainant, defendant and witness alike and to retain the criminal barristers and solicitors upon whom each and every court participant depends in their hour of need. Re-investment into the court structure will only reduce delays to criminal cases if it is accompanied by a concomitant re-investment into the profession upon whom those cases depend. The campaign for proper funding on behalf of our members is intertwined with the basic requirements of a fair and representative justice system. We have invested our time and energy into the criminal justice system at great personal cost. We must be properly paid for the work that we do.
Jo Cecil, Joint head of the CBA Remuneration Committee, has been appointed to the Expert Panel for the CLAR2 Review. I met with the Panel’s chair, Sir Christopher Bellamy QC, last week to discuss the Review and stressed the importance of re-investment in criminal legal aid. Recent BSB statistics show that women across the bar form only 38.2% of the profession as compared with 50.2% of the working population. The number of Pupillages last year, across all barristers’ chambers, fell by 25% with indications, thus far, that the decline will significantly worsen this year. The publicly funded criminal bar has taken the brunt of the decline and these statistics will come as little surprise to criminal barristers who have shouldered a disproportionate amount of the impact from repeated cuts to remuneration, exacerbated by the extra damaging delays to trials from the pandemic and a lack of any financial support from Government. Legal aid fees remain well below the bare minimum required to sustain the criminal legal profession. Without an independent bar, increasing numbers of courtrooms will open but with insufficient members of the profession to represent prosecution or defence.
In July 2020, a belated spending figure of £142 million was announced in relation to court maintenance and remote technology; in September, the MOJ published a further £80 million recovery plan for the criminal courts which included engaging 1,600 more court staff. The Spending Review in November made reference to £337 million extra funding for the criminal justice system. Its aim was to manage the inevitable impact of more prosecutions travelling through the criminal courts. However, whilst great play has been made about protecting the wider public from harm, those whose very existence guarantees that protection have been ignored. There remains, as yet, no recovery plan for the profession. It waits to be seen if the CLAR2 Review will fulfil that role.
A four week consultation process begins this week in relation to the , the intention of which is to establish basic working practices for the Criminal Bar in its relationship with the courts. I urge everyone to .