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Monday Message 14.09.20

Chair’s Update:
James Mulholland QC




Trial capacity in the criminal courts continues to increase. In excess of 40 courtrooms have now been equipped with plexiglass. The target number of 250 in the next six weeks represents less than 60% of the existing estate yet it will exceed the number of trial courts operating in 2019 because of limits imposed on sitting days. However, we are dealing with an estimated backlog of 30,000 trials and we need more courtrooms available as soon as possible. Whilst delays involving custody cases are well documented, those affecting defendants on bail are far worse. Cases including drug dealing, fraud, burglary and assault, dating back years, are being given trial dates in 2022. The human cost is enormous.

I have continued to stress the urgent need for more Nightingale Courts to conduct criminal work. There is no promise of further investment. In fact, there is no real enthusiasm by government even to source such buildings; yet they do not need to be lavish commercial premises and they do not need to cost vast amounts of money. Many municipal buildings currently standing empty or underused would suffice. Public Inquiries involving large groups of people are regularly heard in such locations. I urge everyone to research possible local authority owned venues in the same city or town as a Crown Court and send us the details. We will pass them on to HMCTS.

On Tuesday 8th September, I met with the Recorder of London. The Central Criminal Court is already conducting six trials. It is anticipated that, with the assistance of plexiglass, this number will rise to eight during the autumn and remain at that level until the end of the year before increasing to ten trials in early 2021. Many of these will be multi defendant cases and include trials of up to six defendants although the total number is limited by the current capacity of the cell area which is twenty prisoners. The Recorder constantly monitors existing cases. If any trials proceed more quickly than anticipated, other trials are brought forward, with notice and the assistance of those involved, to fill the gap. All other court centres need to be doing the same.

Pilot Schemes

Crown Courts at Hull, Stafford and Snaresbrook are using an Extended Operating Hours court from today. Portsmouth, Reading and Cardiff are due to commence on Monday 21st September. Please would everyone involved in a case in a pilot court complete the CBA Questionnaire. 

Remote Hearings Protocol

The CBA had a positive meeting with senior judiciary on Wednesday. Once again, we requested that a protocol is agreed setting out the types of hearing where the default position should be that the parties attend remotely and identifying relevant factors to be taken into account in determining whether other hearings may be conducted in a similar way. It is vital that each court adopts the same approach and that such hearings take place when there is no disadvantage in so doing.

We are still in the grip of a pandemic with the number of infections on the rise once again and the R rate climbing above 1. The recent closure of Manchester Minshull Street and Birmingham Crown Courts for Covid related reasons demonstrates that courts are far from immune. Whilst judicial discretion must remain unfettered, any approved document would set out rules of practice for judges to follow in order to reduce the level of footfall caused by unnecessary hearings.

Secondly, the vast majority of the criminal bar have earned very limited sums of money over many months. To require them to incur substantial travel costs and journey significant distances, often on public transport, for low paying hearings which could be heard remotely has a very detrimental impact on their finances and, potentially, on their health.

Such a document would, obviously, not impact on jury trials which would continue to take place in person. A draft agreed between CPS, Law Society and Bar has been with the senior judiciary since July and it is worth repeating that a protocol has been in existence for civil cases since March 2020.

Working Groups

I have asked Edmund Vickers QC to set up a national working group on the Criminal Justice System titled ‘A Call to Arms’. It will identify the greatest challenges now facing us and will bring together the main stakeholders and agencies working within the CJS and those most affected: witnesses, complainants and defendants. It is time to stop talking about this and start finding solutions to the multitude of problems which now exist. It will gather evidence, hold meetings and prepare a report to be presented to government.

I have asked Elizabeth Marsh QC to set up a Working Group on Retention. It will consider this matter in detail and assess what changes need to be made to ensure junior barristers stay at the criminal bar. This will include amendments to the regulatory framework, if necessary.

John McNamara is in the process of setting up a Young Criminal Bar Committee to identify and tackle issues faced by those under eight years’ call.

These must be national and diverse structures. I invite members of the Bar across England and Wales who feel strongly about these causes and who can commit time and energy to them to contact Aaron Dolan.

A Funded Pupillage

Keating Chambers has, generously, offered to fund a criminal pupillage for this year in the sum of £20,000. If a Chambers has had to withdraw such an offer and disappoint an applicant because of the current crisis, please contact the CBA with details.

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