‘Monday’ Message 15.06.21

“Covid secure courts”, capacity and getting Beta out of Delta:

Lockdown restrictions in England are to remain in place until 18th July as a consequence of evidence of a surge in the volume of new Covid cases and the increased rate of infection under the now dominant and more transmissible ‘Delta variant’ first identified in India. The decision is part of the Government’s stated desire to follow the data and not to allow a third wave of Covid infections to overtake the vaccination roll-out across the wider population. Half of the adult population have still not received their second dose and insufficient numbers of under 35s have had their first jab. The Government is yet to see the evidence on whether the latest surge in new infections will result in higher Covid-related hospitalisations for serious cases and deaths, or whether the current vaccination roll-out will have broken the pattern that manifested itself in the first and second wave. The Government is not rushing back to any “old normal” or even a socially distanced, anti-large gatherings approach and many expert commentators are increasingly voicing the likelihood that there may be no full return to pre-Covid public gatherings until Spring 2022.

Legal limits on social contact both in public and private spaces, inside and outside, thus remain in place for at least the next four weeks. Nonetheless, some Crown Courts have already taken matters into their own hands as to what is safe and prudent for the running of hearings inside court rooms. Whilst the Government’s overriding strategic objective is not to overrun the capacity of the NHS with an influx of Covid-related hospitalisations, many of the legal professional population within the Criminal Justice System may wonder if their safety and well-being is being considered to the same degree.

Last week’s decision by Derby Crown Court to press ahead with a unilateral decision to return to in-person attendance for all PTRs and PTPHs from 5th  July is likely to be met with real concern by many at the Criminal Bar especially as the so-called Stage 4  lifting of restrictions was never set in stone and  had been in doubt for the past two weeks as daily evidence emerged of the Delta variant taking hold and numerous scientific briefings reiterated the risks to the general population created by a rush to larger indoor gatherings. A surge to greater numbers of indoor gatherings is exactly what will result should Derby press ahead with the change in approach, away from the default position of remote hearings for administrative matters and back towards a significant increase of in-person hearings.

At the Criminal Bar, we continue to grapple with inconsistent approaches emerging week by week between various Crown Courts as to the stance adopted in relation to whether remote hearings are permissible for identical situations.  Whilst Derby Crown Court heads back to in-person attendance as a default, sixty miles away, Northampton Crown Court is moving to more remote hearings at the same time as it considers extending court operations with significantly earlier starts and later finishes to the dismay of the criminal barristers who struggle to help keep these courts on the road to recovery. Extended hours is particularly worrying at Northampton which is on the edges of the Midland and South Eastern Circuits and has no local criminal chambers. At the same time HMCTS continues to insist in its weekly updates as it did throughout first wave and second that all its criminal courts remain “Covid-secure”.

For the last year, we at the Criminal Bar, alongside our solicitor colleagues have called consistently for a national protocol for all courts as to the use of remote and in person hearings. I have felt the need repeatedly to refer to the Lord Chief Justice’s insistence as long ago as last July that: “there is no going back to February 2020. In every jurisdiction there is a growing understanding of what is ideally suited for remote attendance, what is acceptable and what is not.” As I made clear last week, Lord Burnett told the judiciary that, “the idea that lawyers will be required to travel for an hour or two, wait around and then deploy arguments for half an hour before travelling back, has now gone.” Yet, here we are in June 2021 with court users faced with an edict from Derby Crown Court which has unilaterally announced a return to in-person attendance for all PTRs and PTPHs from 5th July.

Here is one response from an experienced criminal barrister who emailed me this week and who reiterates the points that Lord Burnett made last year. This is a barrister who wants to work not one inclined to take action:

“In circumstances where instructions are firm and not guilty pleas will be entered, all that a PTPH accomplishes is the setting of stage dates. The entire exercise is an administrative undertaking that simply does not require the presence of advocates in person. Likewise PTRs, unless there are substantial issues remaining outstanding that require resolution to ensure that trial dates are effective. CVP should be the norm, and in person hearings should be requested when necessary.

The use of technology has made it far more likely that trial counsel can cover their own interlocutory hearings, which has obvious benefits for the administration of justice. The notion (especially when one considers the overall state of the criminal justice system and its impact on our practices) that we should return to a system whereby one’s diary is effectively blocked out for a whole day so one can be at the mercy of poor listing and the Court, to deal with a 5 or 10 minute hearing, and suffer the travel costs and additional wasted time, is simply absurd and only serves to underline the fact that our wellbeing is not a serious consideration for the judiciary”

Whilst restrictions on gatherings of people continue elsewhere, we at the Criminal Bar are obliged to continue to attend court no matter how many are in the building. Public Health England and Public Health Wales have clear concerns about the transmissibility of Covid and how best to reduce transmission while the nation plays catch-up on full vaccination of the adult population.

The strategy for a coherent and consistent criminal court recovery plan across the jurisdiction must have at its heart the well-being of the itinerant criminal barristers who help glue the criminal justice system together. A failure to account for their needs and fully to appreciate the vital role they play undermines their safety and wellbeing. We have maintained for a year that it is entirely feasible to tackle case backlogs and mounting delays whilst reducing the risk of Covid transmission between all court users by increasing court capacity for trials and yet reducing footfall in the court estate. The strategy to balance these seemingly opposing needs is to add to the Crown Court estate by way of more Nightingale Court rooms whilst ensuring all available judges are free to preside over the maximum number of in-person trials in the available space. Derby has not had the benefit of additional physical court room capacity via a local Nightingale court building which makes its sudden decision to return to in-person attendance for practically all hearings all the more counter intuitive.

The twin fold approach of adding more court rooms and the greater use of CVP for administrative work to help free up even more space must involve hearings conducted within normal court operating hours in order to minimise unnecessary extra footfall in the confined spaces of a court building and within each court, lest it be forgotten that this is an airborne disease. We reiterate that those court visitors who are at greater risk of both catching Covid and becoming unwitting vectors between courts are the far travelled criminal bar advising clients in the close confines of court rooms, corridors and cells across the land.

We urge HMCTS and the judiciary to read the results of a recent survey conducted by Women in Criminal Law to which 672 practitioners contributed with strong representation from both women (60%) and men. 96% were in favour of retaining a presumption of remote hearings in the Crown Court in some circumstances with 2% against and 2% neutral. 90% of the 520 who answered the question about protocols were in favour of a national remote hearings protocol introduced by way of a Practice Direction. No such protocol currently exists. The issues that the Lord Chief Justice raised in his Mansion House speech last July were also addressed in the survey. They are so important that I set them out. Out of the 520 in favour of maintaining remote hearings and who provided a reason/s for their stance:

  • 97% the impact on travel time;
  • 94% the ability to complete other work on the same day;
  • 93% CVP saved costs;
  • 91% Trial counsel could conduct their own mention hearings;
  • 54% CVP positively impacted on childcare or other caring arrangements.

We need to rebuild a criminal justice system which maintains in-person attendance both for jury trials and other hearings where the physical presence of the participants is likely to be important but also one which uses CVP technology to deal with matters of administration. The time has come for a clear national protocol on remote hearings. Seeking to extend the working day in court to the detriment of criminal barristers’ working lives, can only impact negatively on those they represent. At the moment, it also exacerbates the risk of spreading Covid infections. The system deserves more courts as part of a plan, not just for next month, but for the next five years. The public deserves more.

CBA Vice Chair Nominations:

Nominations are now open for Vice Chair of the Criminal Bar Association.
Closing on Friday 25th June at 16.00hrs
Full details here.

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