Monday Message 08.06.20

Chair’s Update:
Caroline Goodwin QC

 

 

 

THE WORLD HAS CHANGED:

The world as we know it has changed, we have to change and those who want us to do our jobs efficiently, properly and to a standard have to change as well. Government timetables are out of the window; spending reviews are out of the window, what is certain about the future, is that it is uncertain. Corona has had a devastating impact we all know that. There are more problems than solutions, but inertia is not the answer.

I am not a government minister, nor am I politician, but the writing is on the wall. As you will have gathered over the last year, I like a statistic or two. They make for sobering reading. They show where we are now and shape predictions for the future. The Institute for Government has done much on this and the figures I quote come from their report April 2020. It is brilliant reading and I am very grateful to them for their analysis. Someone in Government should read it.

The time for burying one’s head in the sand and proclaiming “it will be all right on the night” is over and do you know what, I am fed up with having to write a Monday Message that has to continually point out the obvious. One might think that the audience was biased.

IS ANYONE GOING TO ADDRESS THE BACKLOG?

Someone needs to go to Specsavers. The backlog is on the increase and we have a toxic scenario where the strain on the court system as we know it is going to literally cripple us and unless something is done it is only going to get worse. The physical capacity of the court estate to handle the blindingly obvious, is simply not enough. I might add that this existed before Corona.

Just reflect for a moment on the following:

  • An increase of 20,000 police officers by 2023, who we hope will be solving crime thus leading to an increase in the charging of offences
  • In the summer of 2019, a promised funding boost of 85 million for the CPS over the coming 2 years
  • A little-known fact that due to the cuts, the average charge rate per officer presently is 3.3 offences a year (a number of factors lead to this recognised figure)

DO THE MATH:

An increase in officers as planned by 20,000 means that by 2023/24, working on an average of 3.3 charges per year, there will be in the system, an increase of 66,000 more cases per year i.e. an increase of 16%.

If the police became slightly more efficient and upped their performance to 3.8 charges per year that would lead to an increase of a third, reaching 544,000 by 2023/24.

IMPACT ON THE COURT:

It may just be me, but the above means on any common-sense basis that the courts will have to handle more cases. How are we going to scale up capacity? How do we fund that demand?

It is obvious, but policing policy decisions impact us daily at the court. We all know case mix at the court is determined in part what the police are investigating. Emphasis on long complex investigations, means long complex trials, one trial taking many weeks. A greater emphasis on simple investigations e.g. theft and burglary, affecting a greater number of people, can mean shorter time devoted to each individual trial and potentially more trials. Police decisions therefore have an impact. Even accounting for those trends, the complexity of evidence in trials has meant that the average hearing time for trials has increased by 4% per year. Bluntly trials are that little bit longer today. Thus, an increase in charging and an anticipated increase in the number of cases coming to the Crown court, means that if we consider the present data there will be WITHOUT AN EVALUATION OF CORONA, an increase by way of demand on the courts of 16% by 2023/24

We have said it before and we will say it again, the Government needs to invest and beyond that which it has estimated.

The IOG calculate that the government spend per year needs to increase by up to 25% more i.e. £225m a year more, if demand on the courts is high by 2023/24.

AND NOW ADD IN CORONA AND THE INCREASING BACKLOG –
REMOTE IS NOT THE ANSWER:

All jury trials have been suspended and only recently has there been the commencement of trials and whilst we all applaud the work, we know that one or two trials in a few court centres is not going to be the answer. Video and teleconference hearings have increased and whilst it is welcome, it ought not to be rolled out at scale when it has not been evaluated and tested evidentially. We cannot run before we can walk and so we ought not to look to video technology as being the answer. The impact of virtual hearings on case outcomes has not been studied enough and further research is needed and those studies which have been done, so far do not point very favourably and appear to indicate that hearings are biased against the defendant.

This use of technology is welcomed but it needs to be approached with care. We have had long held principles of open justice and fair trials. Let us not compromise that for the sake of a ha’porth of tar.

We all want to get on but the need to evaluate this properly is perhaps now more pressing. We know HMCTS is concerned, as it has been involved in work in this highly sensitive area. See the work by Dr N Byron “Digital Justice data strategy and delivering access to justice – Report and Recommendations, Legal Education Foundation 2019” Further, we are expecting the full report from the Equality and Human Rights commission this week “Inclusive justice a system designed for all” In addition, Penelope Gibbs has written many articles on this subject. We will come back to this topic but please just do not think remote is the answer.

IMPACT ON THE BACKLOG:

We know there were no trials in April, we know a few trials have occurred in May, we have tried to keep cases going where possible. If statistical modelling is to be considered, the backlog will rise and significantly not only for trials but also for cases. If there is a moderate impact i.e. 15% of norm, in one quarter April to June, the backlog will rise to 51,000. If that figure of 15% lasts for 6 months the backlog will increase to 65,000, the highest since 2000….and the trials?

So, you can imagine my disappointment not only for the bar but also for those men and women who are trying really hard to make sure that we can get back into the courts to begin to conduct our work. We have recognised and continue to recognise that the opening of the courts is going to be slow and the announcement that another 16 courts will come online as per the proclamation of the Chancellor this morning is welcome, but it is only scratching the surface. I have seen first- hand and I’m sure many others have as well, how hard the staff are working to get the courts operational and there is no reason to think that they would not do so in other buildings. So, we need to stop tinkering at the edges and come up with real solutions to deal with a need for trials. The Bar is doing its part, why can’t they?

SOLUTIONS:

  • Investment: we cannot get away from it
  • A single quarter that is impacted will need £45 million spend a year for the next two years. So, two quarters impacted….” you do the math”
  • We need to run more trials. IOG calculates an 8% increment for a single quarter shock and 15% for a two-quarter shock. We all shudder to think what will happen if this drags on as we fear it will into a third quarter.
  • Without corona, to deal with the cases created by an increased police force, the projections re court capacity calculate an extra 16% capacity would have been required between 2019/20 and 2023/24.  Hold onto your hats. Taking into account the increased police force and the need to reduce the court backlog (increased due to corona), to deal with a problem created additionally over two quarters i.e. April to September, the courts will have to run at 125% of 2019/20 levels within the above time frame.
  • We need more buildings from which we can conduct our trials

IOG:

“Managing the effects of coronavirus and enabling the courts and prisons to manage the impact of 20,000 additional police officers will cost money. Current spending plans may be enough to deal with the latter but clearing the court case backlog could cost hundreds of millions of pounds on top. These are relatively small sums in the context of the government’s response to the coronavirus crisis – but will be vital if delays to justice are not to become permanent

I could have written that myself.

There is nothing worse than someone saying, “we told you so”, but we have, we will and shall continue to do so.

YOUR HELP:

Prior to the Corona pandemic, I asked you all in those circumstances where cases were of an acute style and nature, that were being adjourned time and time again out of lists, to be brought to the CBA’s attention. We are now finding routinely that cases are having to be taken out of the list. Delay, delay, delay, no matter what the root cause is not something that delivers justice. We cannot have a situation where victims are left for what would appear to be now years on this predictive graph before the trials. We cannot have innocent people left in limbo waiting for a trial to be reached for their innocence to be determined. We cannot have individuals languishing in custody whilst the government gets its house in order and decides whether or not it is going to pay for the use of more suitable buildings during the Corona pandemic.

Therefore, please email as a matter of importance, priority, urgency those cases which ought to have a trial date now not in many, many, months’ time. I do not need to spell out the type of case to which I am referring. It is only by producing these types of examples that we ever seem to get any traction; so, if you give us the ammunition, we can deploy it. Email us those details

MEANWHILE
WHAT FINANCIAL AID?

That neatly Segway’s into the following topic; if there are no trials and it is acknowledged that trials are the lifeblood of the way in which the criminal bar is remunerated, exactly how are we expected to survive, to pay our staff and all our running costs, if we have no prospect of work, whilst we can furlough staff, we cannot furlough ourselves. The criminal bar surely is an exceptional and special case?

The fact that criminal trials are not running means that the savings to the overall budget are significant and yet we are not seeing any benefit of that. Do not speak to me of bounce back loans or CBILS. We can only borrow what we can pay back.

We have been recognised as key workers. The operation of the criminal courts is seen as a priority, law and order on the government agenda is said to be a priority, then why are we not seen as such? We have acknowledged the huge efforts that have been made in particular by the CPS to ensure that wherever possible they are able to pay us for work done but the amount of work that is being done is negligible and it is about time that someone in government, particular the Treasury recognise that. We should not be on a graveyard watch, we should not be driven onto our knees and we certainly shouldn’t find ourselves going bankrupt, because being so small in number, we are not a popular and/or significant vote. We need financial help; we need financial aid. If you want to keep talking about sustainability, you need to have a criminal bar, if you want social mobility within the criminal justice system you need a criminal bar and if you want people to be able to deal with the backlog, you need a criminal bar. Recognise that and invest in us.

FEES UPDATE –
CPS:

We have a meeting with the CPS on the 15th of June where we will address a number of issues not least of which involves section 28, trials and various other matters. We will keep you updated.

MOJ:

There will be no amendment to regulation 22.

So massive savings across the board for the treasury purse and absolutely Jack for the Bar. At a time when a little flexibility could have helped, none has been offered.
Thanks.
It is difficult to remain cheery when one is repeatedly kicked in the teeth.

TEESSIDE CROWN COURT:

In light of the above it would be churlish of me if I said nothing about the efforts that have been undertaken at Teesside Crown Court and thank you to HHJ Crowson who invited me to see the buildings. That is one of the examples of the effort that one can see being undertaken by court staff and judiciary to begin to open up court buildings. Safety was paramount, the building was clean and tidy, and I have to say impressive. My belongings are safe in the robing room as it is locked, but on a serious note, without help financial help we will not be there by the time trials start.

LISTING:

Last week at the magistrate’s court, a junior practitioner required the help of the CBA and the Bar Council to have vacated, a trial which ought never to have been listed. That individual was vulnerable and shielded within the meaning of the Corona legislation. It took nearly 3 days of work and the attendance of leading counsel to have the case vacated. From our survey over 20% of our practitioners are in the vulnerable category. They of course will be conducting many of the serious cases yet to be listed and we are alive to the fact that listing may just simply put in cases ignoring counsels own precarious medical positions. The bar is preparing a protocol and we will need to discuss this with the senior judiciary, but we are alive to the fact. In the meantime, could we please ask that as we begin to go back to court, if you are in any of the vulnerable categories, that you actively case manage your cases and let the listing office know.

MAGISTRATES COURTS:

At the moment the vast majority of cases have been conducted in the magistrates and as we have written about before there have been some appalling complaints. A lot of people are now trying to address those problems, but it will be useful if when you are attending the magistrates to start start asking for copies of the risk assessments for each court centre. You can do this by emailing in and a copy will be sent to you. If there are any problems, please of course raise it with the local court centre so that it can be looked at and secondly email those problems that you are encountering into the local junior CBA rep. They are working with the Presiders and the Circuit Leaders. We are trying to gather a national picture, so help yourselves in ensuring a better working environment by providing us with the information. List of Reps is set out below:

The relevant representative on each circuit is set out in the list below:

Circuit CBA / Circuit Rep
Northern Huw Edwards
Midland Tom Schofield
North Eastern Nick Worsley
South East Circuit Gerwyn Wise
Wales Owen Edwards
Western Alejandra Tascon

THE EYE OF THE STORM:

We are in the eye of the storm right now. Each day, each week is a set of new challenges, none of which, any of us have ever had to deal with before and it’s a question of identifying the problems and trying to work through them. It was never going to be easy and of course it will not be, but what is important is that we must hold the line together. We must ensure that we play our part at this stage. As far as we are concerned there are just not enough hours in the day to try and address all of the issues which are being thrown at us but what I can say to you absolute sincerity is that new time is being wasted and we are doing everything we can to ensure that the bar stays safe and that the bar remains viable. Being safe cannot be done at speed but as I said at the beginning of this message inertia is not the answer we need some strategic thinking that will ensure that the backlog is addressed and the business of the courts delivering justice will not only be maintained but be increased. For once the statistics are relatively simple. We need to see trials running.

I will keep you updated on where we are on this, as it is a subject close to all of our hearts for many reasons.

I am visiting Inner London on Wednesday and will tweet the news.

BLACK LIVES MATTER, JUSTICE AND LAW AND ORDER:

It is worth checking to see what progress has been made to put our own house in order. Within the criminal justice system there were and still remain deep divisions as revealed by the Lammy Review. Many of the recommendations made in the review remain to be followed up with sustainable solutions still needing to be found.

Events this weekend across Britain have showed that the winds of change can blow for good and ill. Standing up for the rule of law means understanding that. Law and order are just that – creating limits to allow justice to flourish and policing wherever possible by consent not subjugation. That is what law and order is about. So, the innocent can be kept from harm and peaceful protest remains legitimate. Meanwhile charging is rarely a black and white issue.

To Bristol. There will no doubt be a proper police investigation as there should be for any offence that may have been committed.

When making a decision to bring criminal charges for an offence, police and prosecutors need to be satisfied that both an offence is more than likely to have occurred and also that a public interest hurdle has been overcome to bring criminal charges for each particular offence and potential offender. With the toppling of the Colston statue there will be pertinent questions to ask about the public interest in bringing criminal charges if the winds of change are to prevail for black lives to matter by all and for all, without in any way condoning acts of violence, breaking of the law nor any undermining of the rule of law.

Further, I would like to share this next piece as it is important to recognise the fact that bias and prejudice are never far away. Whilst we have pinch points with national media coverage our day to days lives are affected.
Please read:

It’s about Leon Lynch, junior member on SEC and comes from a post from his wife.

“I hear some of you say this is America’s fight not ours. I beg to differ, we struggle with racism in the UK too, structural racism is ingrained in our society and we have become so used to it we don’t even recognise it is there, we’ve just accepted it as the way things are. But do you know who is aware of it every single day, our black brothers and sisters. 

My husband is not a fan of social media so I don’t mention him much in my posts to respect his wishes but I asked for his permission to share a bit of his story with you to open your eyes up to some of what really goes on here in the UK. 

Leon is a barrister by day. His journey to the bar was a long and gruelling one. It took him 12 years to finally become a tenant at his chambers. He studied law at uni where he was told he wasn’t good enough to be a barrister. He left and worked for a year-round the clock to raise enough money to pay for his law school. You may or may not know that at the Bar it’s a very privileged white middle class profession. After he qualified as a barrister, he worked for 5 years doing low paid legal jobs to gain experience to get a foot in the door. He was rejected from many jobs and pupillage opportunities and watched as white counterparts with less experience and skill were offered those very same jobs. But he didn’t give up. Eventually he was finally offered a pupillage (an essential training process which you have to have in order to become a barrister) and worked around the clock to prove himself more than capable. People often assume that he is the defendant (despite being in a suit) purely because he is a young black man and this mistake is even made by counsel. He has had to defend clients who are on charged with racial aggravated assault offences and does so with grace, humility and integrity. Regardless of the offence, he does his best to represent all his clients to the best of his ability. He is 31 and has been stopped and searched 7 times and unlawfully arrested once. On all these occasions there were no real grounds for stopping him and his arrest was degrading. On the day on his arrest, it was valentine’s Day 2014. He was on his way to see me; in his bag he had a personalized plaque made for me for valentine’s day with a hammer and nails to put it up for me. He was stopped by the police on the grounds that they believed he had a firearm, it was raining and cold, they twisted his arms and put him in handcuffs and pushed his face into a park railing. For 30 mins he stood there whilst an armed officer pointed a gun at him. He nose was running because of the cold and despite his requests, they wouldn’t even let him wipe the snot running down his face. The all happened near to his home and his neighbours watched and walked past. He was utterly humiliated. On arrest they searched him and didn’t find a firearm but did find the hammer, so they changed the reason for his arrest to suspected robbery as he ‘fitted a description’?! He explained the hammer was to put up a plaque for his fiancé which was also in the bag, they found it but still wouldn’t let him go. Thankfully his mum and brother passed by in the car and saw the commotion. His mum jumped out to find out what was going on. He went to the police station. Eventually he was released. With no apology.

Every single time he has been stopped and searched (sometimes in his suit and tie on his way to work) he has been singled out and people walk pass him believing he is a criminal. Can you imagine the embarrassment? One time during a stop and search the police officers allowed their dog to put his dirty paws all over his suit and he arrived at work late with dog paw marks on him. 

These are just a few examples of some of the injustices he has faced. And he is just one black man, who works to fight for justice, one man who has such a heart for compassion, one man who works harder than anyone I’ve ever known to provide for us as a family, one man who loves the Lord, one man seeking to break the stereotypes, one man seeking to inspire other young people to believe they can be more than what the world says they can be. He has never taken drugs, he has never hurt anyone, he has never stolen, the list goes one. He is just one black man”

We need to have faith in the criminal justice system. This will only last if we continue to protect equally all our people from harm and lasting change will come through democratic means not mob rule which opens the gates to anarchy. Focus must remain on orderly change within the law, which is where lasting freedom lies, and equality of opportunity resides.

FILM OF THE WEEK:

DIE HARD

Where is Bruce Willis when you need him?

Stay safe and onwards and upwards

Caroline,

Caroline Goodwin QC
Chair of the Criminal Bar Association
[email protected]
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