Monday Message 17.02.20

WE NEED SOME BREATHING SPACE:

I was reflecting on the number of individuals whom I have seen  take up the most important of political roles as far as justice is concerned and it is almost as if there is a turnstile with people coming and going, often having little feel for the environs in which they are operating: Modern parlance would say MP’s have transferable skills perhaps that has not been the case?

I just remind you as to the attrition rate:

Lord Chancellor
Elizabeth Truss 14th July 2016 – June 2017
David Lidington June 2017 – January 2018
David Gauke January 2018 – July 2019
Robert Buckland July 2019

Attorney General
Jeremy Wright July 2014 – July 2018
Geoffrey Cox 2018 – February 2020
Suella Braverman February 2020

For there to be an effective grasp of what is happening at the grass roots, we need both continuity of and indeed sensible policies. We need a breathing space. Being appointed either as Lord Chancellor or Attorney General is a position of great power and accordingly great responsibility. The entirety of the Criminal Justice system has without doubt suffered the most savage of cuts and we need effective politicians who recognise that and can articulate a case for increased investment from the Treasury, for a joined up approach to restoring faith in, and providing sustainable funding across the criminal justice system. For far too long now the perception has been that those honoured with office are in actual fact set against the Criminal Justice system and in particular those who work in it. There are so many unsung heroes who have kept the sinking ship afloat  that it is about time that the politicians actually stood up for the area of government that they represent rather than see it merely as a stepping stone to something else. We want to see some backbone being deployed to support us. We need proactive Ministers fighting for us.

We can take no more cuts. We cannot give anymore of ourselves than we are already doing. Given we believe that we live in a democracy where the rule of law is upheld and is protective of rights, it beggars belief that we have seen, in the recent past, suggestions that the Judges are the enemies of the people go unchallenged. It also beggars belief that courts have been left running on a shoe string and that junior lawyers are leaving the profession, disillusioned with the future.

There have been green shoots recently and we have been able to engage with the Lord Chancellor and so we trust that the new Attorney General will be mindful of the all encompassing holistic role that this office has and we look forward very much to working with her. Indeed we are due to meet next week and that will be an exciting meeting and one which we are looking forward to.

FEES:

We look forward to the coming announcement and will reflect the CBA view as to the position

THE CONTINUAL SHAME OF SITTING DAYS:

Yes, it is the familiar and disappointing subject of the continued failure to ensure that there is proper and sufficient access to justice, the sticking plaster so recently applied is not enough. The following is, I accept slightly lengthy but please look at the context, what is said and how it is said and then ask yourself the question, What has been done to address the fundamental problem?

I just want to remind you all of an exchange before the Public Accounts committee 16th October 2019 Sir Richard Heaton, Permanent Secretary, Ministry of Justice, Susan Acland-Hood, Chief Executive, HM Courts and Tribunals Service.

The Chair Meg Hillier, commences with setting out what the aim of the programme by HMCTS had been at the beginning of the process:

“You started this in 2016. It was proposing to remove 2.4 million cases from physical courtrooms every year by using better digital processes and, significantly, to bring financial benefits of £2.1 billion over the 15 years, but costing £1.2 billion in order to get to that point.  We want to pick up with you on the savings issue and on how it is working practically.…the reforms were due to complete in 2020, but they are now planned for December 2023”

Sir Geoffrey Clifton-Brown: 
Sir Richard, may I raise ..the welcome increase in resources for increased police numbers? .. presumably that translates to more work for the Courts and Tribunal Service.  What allowance for that have you made in your whole transformation programme?

Sir Richard Heaton:
We do not quite know how the 20,000 police officers will be deployed… but we anticipate an increase in charge volumes and, therefore, an increase in work for the    Courts and Tribunal Service. We successfully achieved some of that increase in the recent spending round…So the recent spending settlement was very welcome in that it implied greater spending both on the Courts and Tribunal Service—sitting days, for example. I am not saying that we have got all the money we will need to deal with the downstream consequences, but the link has been properly recognised by the Treasury…..

Susan Acland-Hood:
Yes, in terms of more volume in both the magistrates and Crown courts, which is what I would expect to see as a result of an extra 10,000 police, we have reasonably good experience of flexing our volumes up and down. At the moment— we have some capacity in the Crown court in particular which we could move to use relatively easily as long as we do the work that the permanent secretary has described and make sure that we have the funding flows to allocate sitting days. In terms of the judges and the rooms, I am not too worried about that in the Crown court……

Chair:
Before we move on I want to pick up on where things are at between you and the right hon. Lady Justice Macur, who is the senior presiding judge for England and Wales. You have obviously had a correspondence with her about the backlog in Crown courts. She says, in her letter, “The decision not to further reduce the backlog was a political decision.”

Sir Richard Heaton:
Yes, certainly. As happens every year, we set a budget, an allocation, for sitting days in each of the jurisdictions, and the number for the Crown court was lower this year than last year, principally due to the quite striking reduction in receipts—in volumes of cases coming into the Crown court. Correspondingly, the other jurisdictions saw an increase, such as in family law where there were particular pressures. We keep an eye, when setting that number, not just on the flow in but on the backlog, or the head of work waiting. The average waiting times are historically low and they have fallen again in the recent statistics. The head of work, again, is historically low, beginning to tick up in the last quarter.

The decision was made. Lady Justice Macur described it as political, I think With the Lord Chancellor this morning, we preferred the word Executive. It was, at the end of the day, an Executive allocation decision, rather than a judicial decision. We did not decide to allocate money in such a way as would eradicate the backlog; we decided to allocate money in a way as would keep the backlog steady if possible. We keep it under review, and the Lord Chancellor told the Justice Committee earlier that he keeps this under very close review and, if it looks like cases are waiting too long to be heard, he, in the interests of justice, will   revisit this and will want to revisit the question of allocation of  sitting days.

Susan Acland-Hood: 
The only thing I want to add is that we are very conscious that there is a human impact on people who are waiting for their cases to be heard. The process through which we agree the allocations for HMCTS goes through a thing called the concordat. There is a shared process with the judiciary to look at those decisions, and as part of that it was agreed that there would be this process of review. Having seen the number of cases just slightly start to tick up for the second half of the year, as the permanent secretary says, we are currently reviewing the sitting day  allocation for the second half of the year now..,

Chair:
You talk about it being too long—How long is too long for people to wait? We have covered this before …justice delayed can be justice denied for people.

Susan Acland-Hood:
I agree. At the moment the mean waiting time in weeks in the Crown court for anything that we deal with—this is just a mean average—is 13.5 weeks. That is from the latest published figures, and that is the lowest that it has been for some considerable time—at least the last four years. Of course, the waiting time is a lag indicator, so we measure the waiting time at the point when the trial is heard. We also try to look forward at where we are listing, and we also try to split it out.

Those who plead not guilty and go for trial will wait a little longer; the average waiting time for those who plead not guilty at the moment is 27.7 weeks. Similarly, we have custody time limits, so we make sure that those who are remanded in custody meet the custody time limits. If you are remanded in custody, on average you will wait 12.9 weeks. If you are on bail, it is 20.9 weeks.

Sir Geoffrey Clifton-Brown:
So someone can be remanded in custody for 12 weeks, which is three months.  That is a long time for someone who might well be innocent to be waiting, surely?

Susan Acland-Hood:
I agree. Nevertheless, it is the lowest for about four years.

Sir Geoffrey Clifton-Brown:
I accept that, but is that good enough, Sir Richard? For someone who has pleaded not guilty, 27 weeks—over half a year—sounds too long. These waiting times are getting too long, aren’t they?

Sir Richard Heaton:
I think the Committee is right to be concerned. The Lord Chancellor is concerned and will be looking at this, with an eye on exactly that sort of case. We have to be guided both by the real-life human stories of people waiting for their cases, and by the means and the statistics, which sound a bit dry. The statistics are reasonably good, but there is beginning to be evidence that some classes of case are probably waiting too long.

Well what was the answer to the question?
NOT ENOUGH

THE MORAL OF THE STORY:

• The recent increment in sitting days albeit welcome is insufficient
• Why is a backlog acceptable?
• The figures quoted have no bearing on reality at the Crown Court
• Being “not too worried” means there is a problem
• It is immoral to deprive the Crown Court jurisdiction of investment because there has been an upturn in another jurisdiction, why are these court users any less worthy?
• The Crown Court requires greater capacity to meet demand
• A shortening of waiting time from charge to trial would be greatly assisted by investment in the forensic science service
• A shortening of charging time and advice would be met by greater investment in CPS
• Having access to the correct legal advice needs to be addressed by remunerating the lawyers fairly and reasonably
• Victims of crime have no input by way of statistical impact to the wholly outrageous waiting times
• Everyone else save the Treasury appears to agree that the waiting times are too long.
• The receipt figures are artificially low because of the inappropriate use of out of court remedies and the appalling use of release under investigation
• The Crown Court figures used are out of date at the point that decisions are being made
• Mean and median is not illustrative of the more complicated cases which in practical terms require an estimate of a weeks trial or more, if that was not so, then why are complex cases habitually listed beyond the so mean or average or median call it what you like and that is well into 2021. It is just cloud cuckoo land
• People cannot be treated like statistics
• What is the justification now for courts being left empty? There are courts left empty today up and down the country and this is not exhaustive by any means in:

• Derby
• Aylesbury
• Bradford
• Basildon
• Exeter
• Maidstone
• Harrow
• Reading

• Lip service is being paid to the real human life stories that are delayed because courts are not open
• The Treasury needs to show it recognises the link and start investing in our courts
• It is all about money, twas ever thus
• KEEP SENDING YOUR EXAMPLES IN, the fact that they exist and find recognition only happens if they are sent in and logged, thus it is the Bar who is having to protect those who need cases prosecuted and defended. It is not one sided. This calumny affects both defendants and witnesses for the Crown.

FILM OF THE WEEK:

THE TERMINATOR ………I’ll be back

Onwards and upwards