Monday Message 11.01.21
James Mulholland QC
The Criminal Bar has always maintained that safety is paramount at court. It was the guiding principle which enabled us to plan for and implement the resumption of trials in the Crown Court from mid-May last year and it must remain the guiding principle for any gradual increase in the number of trials taking place across the court estate.
The death toll continues to rise, however, in relation to the Covid pandemic. On Friday 1,325 deaths were recorded nationally; the highest number in the last ten months. The number of deaths within 28 days of a positive test in the UK amounted today to 81,960. Infection rates continue to spiral. Hospitals can, barely, cope. The risk to public health is out of control. Professor Sir John Bell, Senior Immunologist and Regius Chair of Medicine at Oxford University has stated that we should treat the current situation as if it were a war. And yet we, critical workers, continue to go to court.
In the space of one week, the country has moved from, largely, tier 4 to a full lockdown. The Government this evening stopped short of introducing further lockdown measures to restrict the movement of people as the country struggles to keep the pandemic under control but further measures were not ruled out. Health Secretary Matt Hancock MP warned, however, that the public should act “as if they had the virus”, to emphasise the need to stay at home and reduce footfall in public spaces.
We are key workers relied upon to ensure the ongoing functioning of the criminal courts, deemed an essential public service. The Criminal Bar has always maintained that if the system is to continue to operate, safety must be the guiding principle. Without safety equally afforded to criminal barristers, solicitors, court staff, gaolers, defendants, security, probation officers, jurors, witnesses and judges, there can be no functioning criminal justice system; there will be further delays to trials and lives and liberty will continue to be put on hold. Without safety at court and comprehensive safety practices bringing defendants to and from court, rising numbers will languish in prison awaiting trial. Without safety at court, the risk of Covid infection spreading rapidly along this human chain of working lives rises by the day and the risk of death increases for all court users and their families.
The danger begins well before anyone has reached the court estate. A much broader definition of critical workers has now been put in place and many more people are moving around England and Wales than during the first lockdown despite infection rates being far greater than previously. Public transport is much busier than before and, therefore, a major risk. Professor Susan Michie of University College, London expressed the view on BBC Radio 4 last week that the current lockdown rules are too lax.
The Lord Chief Justice has advised that, effectively, the default position for all Crown and Magistrates’ Courts hearings, save for trials, is that they should be conducted remotely in order that jury trials are prioritised and that they take place safely with much reduced footfall. It is incumbent on resident judges to follow this guidance in order to safeguard in person trials.
Meanwhile, in Scotland the Lord President today moved to reduce the number of criminal trials north of the border, as explained by Scotland’s Justice Secretary, Humza Yousaf “as part of efforts to reduce the transmission of coronavirus (COVID-19)”. Mr Yousaf noted, “I am acutely aware of the impact that trial delays have upon victims, witnesses and the accused, as well as on professionals working in the justice system. Nonetheless, it is clear that all parts of society must step up our efforts to help safeguard health, protect the NHS and save lives.” He added, “[t]he reduction in the overall number of criminal trials taking place during lockdown by up to 75% will see fewer people moving to, from and within court buildings due to the significant reduction in summary trials – helping to further reduce the risks of virus transmission”.
In our jurisdiction, the risk is still high after individuals arrive at court. We are told by HMCTS that all courts remain “Covid secure” despite the new variant and that this is based on advice by PHE. The advice found on the HMCTS website refers to the Kent variant; it does not address the new South African strain. We are also told that the public health experts have considered advice from SAGE. A feature repeatedly stressed is that close contact with others should be avoided. However, the position is now more complicated. Professor Michie advises SAGE and she has restated that aerosol transmission, which occurs indoors, remains a very big source of transmission for the virus. This infection is spread as a consequence of respiratory droplets comprised of smaller droplets and particles being suspended in the air over distances greater than six feet for periods of hours. With increased transmissibility, the viral load is now far greater. This means that there must be increased risk in relation to visits to cell areas where the ventilation is very poor and in trial situations where judges fail to take regular breaks in proceedings. In the last few days alone, we are seeing professional court users continuing to test positive for the virus from Cardiff to Sheffield to Norwich.
Last Friday, I met with many of the bodies which represent professional court users including some unions. Serious concerns were expressed as to safety within our courts in the current Covid scenario. There was consensus about the lack of uniform information shared to all court users about safety. Information received by some groups about infection levels in key parts of the criminal justice chain of human interaction, has heightened our fears even further as to the risks CBA members and all court users face as they attend court.
If Government is serious about maintaining the criminal justice system and serious about making the Criminal Courts Recovery Plan work, then Government must take seriously the safety concerns of the Criminal Bar and the wider court staff infrastructure. We are critical workers and the situation is critical. A mass testing system needs an immediate, court-wide roll-out. We need a faster Covid vaccination programme for professional court users.
Whilst HMCTS seeks to grapple with the problems presented by the virus, it is evident that it is ill equipped to do so. Measures are introduced too slowly and fail adequately to address concerns. For example, there are problems with HMCTS’s attempts to track and trace various court users who have tested positive and those with whom they have associated in order to ascertain whether the court was the reason for the outbreak or a location outside the court setting. Not all barristers who have contracted the virus have been contacted by the Service. Further, it is not locating all who have been in contact with those who have tested positive.
We raised the issue of testing with HMCTS weeks before Christmas. To the CBA, it has always been a basic necessity. We have just been informed that the Service is developing a limited pilot scheme in relation to lateral flow testing for all court users. The length of such a pilot remains unclear. Testing equipment from the Department for Health and Social Care will, apparently, arrive at selected sites shortly. It is extraordinary that a pilot scheme is thought necessary for a testing process which has been administered in car parks up and down the land for many months. We need testing brought in immediately. Testing kits should be on their way to all court centres now.
We have been told that HMCTS and the MOJ have made the case to the Health Secretary that all who are critical to the functioning of the criminal justice system should be prioritised in the next phase of the vaccine rollout but they are unable to provide any guarantees. At the same time, we are told that the courts are an essential public service and must continue. There is a disconnect here. If it is deemed essential that such a public service continues to operate, a fundamental condition of so doing must be a prioritisation as to vaccination. We don’t expect people to clap on doorsteps for criminal lawyers but we do expect as much protection as possible.
This includes an escalation routes protocol with the email addresses of Delivery Directors provided. The intention is to respond to concerns within one working day. In reality, there needs to be a response within hours if any meaningful change is to be achieved. Whilst this should have been put in place in the autumn, we welcome its arrival as long as proper, objective investigations take place after a complaint is made rather than it being used as a mechanism to excuse or justify. Courts that continue to breach safety measures should be closed. Various accounts, particularly, from Magistrates’ courts indicate that, often, the rules are more honoured in breach than observance and that the desire to push on with hearings is taking precedence over safety. This cannot continue.
Unless the Government addresses the ongoing concerns of all within the criminal justice system, then many professional court users are likely to consider it unsafe to attend court. Should this happen, it poses a significant risk to the administration of justice. The ultimate losers in such a situation will be the thousands of complainants, defendants, witnesses and families of victims of crime whose cases will be delayed even further.
Extended Operating Hours:
The CBA continues to oppose the Extended Operating Hours scheme in the Crown Court and we are, actively, pursuing legal avenues should HMCTS press ahead with its imposition. We opposed EOH when it was first mooted several years ago as being a discriminatory working practice that would, ultimately, destroy the independent criminal bar. We continued to oppose it on the same grounds when HMCTS indicated that it planned to roll out the scheme from January this year.
Additionally, in December we maintained that EOH would also present a further risk given Covid infection rates were rising again and that it was counter intuitive to cram twice the number of court users into and through the same confined court space in the same day, week in week out, by holding twice the number of trials in the same court room.
Infection and death rates are registering all-time highs and the country is now in the grip of a second wave of more devastating Covid strains. We are, probably, yet to feel the full brunt of this wave of infections.
Consultation on EOH for the Crown Courts has now closed and HMCTS has not said formally whether it still seeks to implement the scheme, although the Government is content to allow the message to be relayed that it intends for EOH to proceed within weeks. It is of concern that, one moment, we are told that we are critical workers essential to the continuation of the system; yet, in a different context, that our views are disregarded. EOH has been dubbed ‘Covid Operating Hours’, an irony not lost on those who read the scientific guidance that EOH will only add to the risk of further Covid infection, undermining the assertion that it will tackle the backlog. Instead, this proposal will add to it by causing more trials to fall apart through infection with more professional court users ruled out of work for two weeks or more depending upon their personal recovery.
Criminal barristers are self-employed professionals who rely on trials going ahead for the vast majority of their remuneration. As they are self-employed, they receive no sick pay and have no automatic pension provision. Most practitioners have been deprived of much of their income for the past ten months but this vulnerability should not be exploited by any government which seeks to cut costs and compromise safety by choosing EOH over the only safe option – opening more court rooms.
HMCTS needs to focus on the implementation of testing and vaccination at every court centre and procedures to ensure better compliance with existing safety measures. Critically, it must accelerate the implementation of regular, reliable, testing in every court centre, for all court users. Critically, it must use its hard-won extra funding from Treasury not for EOH, but to pay for the opening of many more court rooms for hearings. Critically, this provides the most sustainable, safe, approach to address trials and the backlog. Safety and safety alone must be the guiding principle for a sustainable criminal court recovery plan.