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Monday Message 10.05.21

Independent Review of Criminal Legal Aid (ICLAR)

The CBA has negotiated an extension until Friday 28th May 2021 for responses to ICLAR in relation to the Call for Evidence. We urge all criminal Chambers and their members to make their own submissions within this period so that the Review can draw on as full an evidence base as possible in order to complete its assessment and reach proposals for change based on the best available experience of practitioners from across the circuits. At the least, we would ask that you respond by endorsing the CBA’s interim response, submitted to the Panel last week.

Return to a new normal – CVP and in person hearings:

Tomorrow’s Queen’s Speech will make reference to the Police, Crime, Sentencing and Courts Bill which is currently making its way through Parliament. The latest Home Office policy paper on the Bill, updated on 16th April 2021, begins by addressing the “use of video/audio hearings at court” and stresses that one of its aims is to replace temporary emergency provisions under the Coronavirus Act 2020, which allow participants in criminal hearings to attend remotely by live link, with permanent enabling legislation. The Government is satisfied that live audio and video link has worked well and the Home Office paper continues, “[t]his means the courts will be able to operate more efficiently in the future, with greater flexibility to make full use of improvements in technology in court processes and respond to unusual or changing circumstances like the pandemic. The courts will be more accessible and delays to justice will be minimised.” CVP is here to stay.

Today marks the first day that England has recorded zero Covid deaths since July. England and Wales, however, have endured three separate and prolonged lockdowns since March 2020 and, in the intervening periods, the public have had to adjust to various restrictions including social distancing and limits upon the number of individuals that may gather in public or private spaces. The tide has only, recently, begun to recede with most restrictions due to fall away by 21st June. There are, however, many reasons to remain cautious as we emerge from what may still only be a phase of the pandemic in order to ensure that the criminal justice system does not, once again, find itself taking one step forward and two steps back in relation to the criminal courts recovery plan, regardless of the speed and efficiency of the national vaccination roll-out.

A measured approach by each Crown Court centre is essential and there must not be a headlong retreat from what has been considered ‘normal’ since January when, at the height of the last wave of infections, remote hearings for almost all matters save jury trials were set down as the default position by the Lord Chief Justice. Further spikes are still possible. Whilst there is talk of the current 2m social distancing rule being reduced to 1m and, possibly, removed altogether later in the summer, this needs to be seen in the context of many scientific advisors warning that the general population will require a third dose of vaccinations in the autumn to protect it against the expected influx of new Covid variants that will, inevitably, arrive on these shores once international travel restrictions ease, regardless of tiers of quarantine restrictions.

We are beginning to witness significantly different approaches being adopted in various court centres as some race back towards in-person hearings whilst others adopt a more cautious position. Yet again, those who will suffer from the general uncertainty are members of the Criminal Bar as they endeavour to work out the documentation provided on the subject by the many different courts in which they work. The need for a judicial protocol to ensure consistency of approach across England and Wales, is as pressing now as it was when we first made the case for one in summer 2020.

A survey is currently being conducted by Women in Criminal Law (WICL) as to remote hearings. It should take only 2-3 minutes to complete and I would invite everyone to do so. It can be accessed here.

The backlog needs to be addressed in a sensible way by increasing additional physical court space for jury trials whilst, at the same time, retaining the use of CVP for administrative hearings if we are to move carefully forward without compromising the safety of all court-users and the wellbeing of the Criminal Bar.

HMCTS Evaluation of Remote Hearings during Pandemic:

HMCTS is also undertaking an evaluation of remote hearings to understand more about the remote hearing practice implemented during the Covid-19 outbreak, and to make recommendations for use of remote hearings in the longer term.  The study includes stakeholder surveys and interviews. Read more about the research here . It includes both hearings where the parties joined remotely (online or by phone) and where only some of the parties joined remotely.  If you have taken part in a remote court or tribunal hearing since the start of the Covid-19 pandemic, HMCTS would welcome your views.

The survey asks questions about both your practical experiences and perceptions of remote hearings and should take 10-15 minutes to complete. It can be found here.

Lease renewals for Nightingale Courts:

In Parliamentary answers last month, Chris Philp MP confirmed to Parliament that, of the 30 Nightingale Court “venues” currently open, providing a total of 60 courtrooms, “[t]here are 19 Nightingale venues where hire agreements are currently due to expire at the end of June. We are exploring options to extend the leases in order to maximise the use of the court estate. We will continue to consider where Nightingale courts are needed for local operational reasons and we remain in close contact with the landlords of all existing venues.”

Whilst the ongoing use of CVP should assist with administrative hearings, everything must relate to the core strategy of ensuring that every trial has a judge, jury and court room available to hear the case. Out of the 60 Nightingale courtrooms, barely 30 are for criminal work; half the minimum number the Criminal Bar stated was required over a year ago to tackle the backlog. It is essential, not only, that these additional criminal courtrooms stay open for another two years but that we double their number if the Government is to demonstrate a genuine commitment both to trial by jury and to slashing delays for complainants, witnesses and victims of crime, many of whom are now facing up to five years for justice.

Lease negotiations may well be commercially sensitive but there will be a far greater insensitivity shown to all those stranded for years within the criminal justice system if all Government manages to achieve is a 6% increase to the Crown Court estate; just 30 additional court rooms in addition to the 490 Crown Court rooms that have survived after dozens were sold off in a closure programme that ran right up to the beginning of the pandemic in 2020.

A 6% increase in the number of Crown Court rooms follows a 45% increase in the Crown Court case backlog in one year since the pandemic, standing at 57,516 as at 21st March 2021. The Home Office is right that the use of technology to enable more remote participation for non-contentious hearings will help to ensure that “[t]he courts will be more accessible and delays to justice will be minimised.” However, that must be in conjunction with more additional courtrooms open and dealing with jury trials; otherwise, the ongoing delays to justice will increase once more should there be any further wave of Covid infections.

Magistrates’ and New Youth Court – PET Form:

The Criminal Procedure Rule Committee have revised the Preparation for Effective Trial form for use in magistrates’ courts as well as a new youth court version of the PET form. Please access the letter issued and forms here.

Office closed:

The CBA Administrative office will be closed for 5 days, week commencing Monday 17th May.

Bill Maley:

Sadly, we have lost another senior criminal barrister of renown. Bill Maley will be remembered as a formidable defence advocate who practised for many years from 3 Gray’s inn Square and, then, 25 Bedford Row.

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