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Monday Message 14.12.20

Chair’s Update:
James Mulholland QC




We are one bar which lives and works for a one nation justice policy; where everyone in society has equal access to the criminal justice system, regardless of their differing backgrounds. Access to justice, upholding the rule of law and the Equality Act are all interdependent. Undermine one and the ability to fulfil the aims of either of the others becomes, at best, constrained, at worst impossible to achieve. Necessarily, therefore, we back the ideals expressed in this vision:

Our core values – Purpose, Humanity, Open and Together – shape our approach to diversity and inclusion. We aim for a workplace that is welcoming, flexible and fully inclusive, where everyone is treated with dignity and respect and valued for their own unique contributions. We also want to develop a workforce that reflects modern Britain, at all levels and across the breadth of our functions and estate…

These are the values of HM Courts and Tribunals Service (HMCTS), the Criminal Bar’s partner in delivering criminal justice via our public courts as stated by the MOJ in its annual report published in November.

HMCTS is clear as to why these core values matter as they underpin courts and tribunals reform. The following is stated in the report: “Our priorities for future spending are to keep all court users safe and secure within buildings that comply with legislation and regulatory requirements, for example fire safety, Equality Act and health and safety.”

The Criminal Bar’s partner in the running of the courts has further duties. A core objective of HMCTS and the other MOJ agencies is to “[e]nsure access to justice in a way that best meets people’s needs,” and to “[i]mprove the way that people are supported in their interactions with the justice system. These goals are achieved by increasing “the effectiveness of broader legal support available in line with the Legal Support Action Plan.” The report continues that there is a duty to “[p]rotect and uphold the rule of law,” adding, “[h]ow we achieve this: Protect the rule of law by upholding protections of equality under the law and of access to justice.”

It is a tragic irony that it should be the Criminal Bar which needs to remind HMCTS of these stated aims just as the Service continues to push forward with the discriminatory system of Extended Operating Hours, despite years of clearly stated opposition from the CBA, a strategic partner in the government’s running of the criminal courts.

The CBA has instructed solicitors Mishcon de Reya, who have written to the Equality and Human Rights Commission requesting that it invokes its powers pursuant to section 31 of the Equality Act 2006 to assess the extent to which or the manner in which HMCTS has complied with its public sector equality duties in relation to a proposed extension of court operating hours. The letter, states, “[t]he CBA is deeply concerned that HMCTS is using the Covid-19 pandemic as an excuse to drive through, without meaningful consultation, reforms to court operating hours that have previously been shown to be unworkable and discriminatory.” Read the full letter here.

Mishcon de Reya’s letter concludes “HMCTS proposes to implement the Scheme in January 2021, without engaging in any meaningful consultation. We understand from our client that this is likely to have an immediate impact on the diversity of the junior bar and composition of jury panels. There is a well-founded fear, based on reports from a cross-section of the CBA membership, that the introduction of the Scheme would accelerate the departure of many including junior female practitioners, in particular, from the profession. On behalf of our client, we have today also written to HMCTS to request that, in light of the content of this letter and our referral to the Commission, the consultation be suspended pending consideration of its scope and terms of reference and plans for any proposed implementation should cease.” Read the full letter here.

The pursuit of the Extended Operating Hours measure has taken place at a time when the Criminal Bar is at its lowest ebb and when barristers are desperate to work and to do the right thing for their lay clients who, ultimately, pay the price with lives left in limbo as trials are pushed further and further back. However, increasing court capacity can be achieved in many far more effective and non-discriminatory ways as our recent report demonstrates. HMCTS needs to bear in mind that at the heart of a barrister’s duties is the protection of the vulnerable and we will stand firm to protect the vulnerable within our own profession.

New Sentencing Guidelines for Firearms Offences; Equality and Diversity:
From 1st January 2021 eight new sentencing guidelines are to be followed when sentencing firearms offences. The Sentencing Council, which published the guidelines last week, seeks to achieve a consistent approach in a previously complicated area.  Accompanying the guidelines is the analysis by the Council of the detailed response to the consultation.

Both documents make for important reading. As a public body, the Council noted that it is subject to the Public Sector Equality Duty.  In the Response, it went on to state that it had noted apparent disparities in sentencing outcomes based on ethnicity.  It stated, “the overall findings give a strong indication that Black, Asian and Other ethnicity offenders are dealt with more severely by the courts for firearms offences than White offenders both in terms of the proportion receiving an immediate custodial sentence and the length of that sentence”. The Council seeks to address many of the underlying reasons for this disparity and makes reference to the Equal Treatment Bench Book and the need for fairness for all involved in court proceedings.

CCDCS and Unused Material Facility:
The new facility for the CCDCS to display Unused Material was due to go live on 16th November 2020. Paul Keleher QC, Chair of the CBA Technology Committee has ascertained that, whilst the DCS update, including the creation of two unused material sections, was successfully completed on that date, the corresponding update to the CPS case management system (CMS) did not go ahead due to technical issues. The changes are far more complex than those required for the DCS and a further attempt to complete them over the weekend of 4th December was also unsuccessful. Consequently, the date for release is now anticipated to be the second week in January 2021.

CBA Election 2020:
Following the CBA Executive Committee Election, I am delighted to announce the following members start their terms as Committee Members from January 2021:

Mary Aspinall-Miles, Matthew Radstone, Tomas McGarvey, Mark Watson, Sarah Taylor, Robert Levack, Aimee Stokes and Grace Cowell.  In addition, Laurie-Anne Power takes up the role of Treasurer from January.

Congratulations to all.

Virtual Remand Hearings in the Magistrates’ Court:
Unfortunately, largely due to limited resources, the decision has been taken by the Metropolitan Police Service to withdraw their support for the provision of virtual remand hearings for overnight cases in London. They will continue to provide a virtual court service for prisoners who are Covid19 confirmed / suspected.  Read this letter provided to us through the relevant Magistrates’ Court working group and a HMCTS update document setting out the position. The issue has been raised at the highest levels with the MoJ, Home Office and HMCTS without success; as with many areas of the criminal justice system, there is no immediate solution without further government funding.

And so, I close this final Monday Message of the year wishing you all a wonderful and relaxing Christmas and a Happy New Year.

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