Monday Message 18.01.21
James Mulholland QC
We begin a new week in the criminal justice system with it in chaos. For those who did not read The Sunday Times yesterday, outbreaks in 76 of 117 prisons were announced on 11th January including every prison in London. 498 prisoners had tested positive. There have been, at least, three cases in the last seven days where Covid positive prisoners have been brought to court and barristers, albeit masked, have seen them in close quarters in poorly ventilated cell areas before the court was notified that the prisoners had tested positive. The knock-on impact for all court users and their families, many of whom may be within the vulnerable or shielding categories, is self-evident. Further, the cost to the public purse in wasted court time with juries discharged or trials adjourned whilst individuals are compelled to isolate far outweighs the costs involved for introducing systematic safety procedures based on an appreciation that the criminal justice system is a symbiotic ecosystem of people and institutions. Far more robust measures are essential to reduce the risks to all court users. We reiterate the Government’s repeated public warnings: we all have a responsibility to reduce the risk from what is a highly contagious, killer disease.
The bare facts speak of safety system failure: 599 court users and staff, including 69 judges, have tested positive within our jurisdiction in the last seven weeks. We are receiving many accounts of safety measures not being followed in various courts and increasing numbers of barristers are telling us that they could only have contracted the virus whilst at court. There remain many pinch points of concern such as searches upon entrance and the cell areas. Many prisoners are being sent to courts whilst awaiting the outcome of Covid tests and courts are, routinely, not informed. One justification provided has been that mass PCR testing is taking place in prisons with delays of several days until the results are known and that if one waited until then, very few people would be produced at court. That is the wrong approach in a pandemic. If the UK is subject to similar test, wait, travel when negative, procedures for outbound air travel to most, if not all, of our nearest neighbours, and has now, finally, decided to impose similar restrictions for inbound UK travel then it is incomprehensible why professional court users should be subjected to a higher level of risk. We must install and follow similar systems as between prison and court. The criminal justice system cannot afford the luxury of “air corridors” between court and prison. We are not managing a tourism industry. We are dealing with the lives and liberties of court users.
We need the immediate roll-out of systematic testing and tracing, synchronised across all Crown and Magistrates’ Courts, properly linked into both police and prison service. A failure to do so and HMCTS’s contention that all criminal courts are Covid-secure, safe, public places will continue to sound hollow. The Criminal Bar, along with every other professional court user, is entitled to demand that such a claim is justified by hard evidence, particularly, in light of the growing mountain of evidence to the contrary. This is a serious matter and it deserves serious engagement with those who continue to attend court and conduct trials in order to keep the criminal justice system moving.
Too many obstacles are being placed in the way of doing what needs to be done. There is a sense that those responsible for implementing the testing process are overwhelmed by what is expected of them, hence, the suggestions of pilot schemes; yet, every passing day brings fresh risks.
We were promised the regular publication of Covid court statistics by HMCTS. This is still awaited. Daily updates should be published on the Service’s website. HMCTS needs to provide a summary of everything it is doing to provide enhanced safety measures rather than, simply, repeating the mantra that the measures currently in place, deemed insufficient to prevent the spread of infection for the many in lockdown, are working. Proper data sharing as regards infection rates needs to be made in a transparent way for all those involved in the courts’ human infrastructure from security officers, duty solicitors, CPS in-house lawyers, probation officers to the judiciary and, of course, criminal barristers – many of whom it is to be reminded work as Recorders, part-time judges.
HMCTS informed us on Friday that it plans to hold a Webinar on court safety with ‘legal professionals’ on Thursday 21st January between 17.00 and 18.00 hours.
Such an event will fail to inspire confidence, even in the working title ‘safety at court’, if it is used as a soapbox for the Service to justify a failing system rather than to re-assure individuals by the presentation of extra measures to protect court users and by making changes as between prison and court. HMCTS needs to listen, learn and act upon the solutions court users put forward rather than asserting, once again, that by following Public Health England or Wales guidelines, all will be fine. The system needs an urgent rethink.
The recent announcement by the Senior District Judge at Highbury Corner Magistrates Court, which made it clear that the court had very, limited means to hold virtual hearings, raised further concerns. It shows that theory and reality are still a long way apart. It took such an announcement to trigger investment which should have been made months ago. We await to hear how many other courts are facing similar difficulties.
Planning is not a process that is synonymous with the criminal justice system but it is needed now. In both the short and medium term, we need to focus on more space for trials to take place and more buildings. Throughout England and Wales, large civic buildings, cinemas and theatres are closed. In Salford, ‘The Lowry’ theatre has provided the space to conduct three trials per day for many months. Yet, in London, the National Theatre has not been utilised nor have similar venues in other cities. The only Government messaging resembles a stuck record repeating Extended Operating Hours, a scheme which, if implemented, would spread infection and drive people from the profession at a time when it has never been more important to ensure their retention.
Longer term, a five-year plan is required to ensure that the system receives investment from top to bottom. The impact on justice begins and ends ultimately with the Home Office. At the moment, the system cannot cope even with prosecutions at a 20 year low. Charging rates continue to fall. The impact of RUI is still to be quantified. A lack of funding limits the resources the police can call upon in investigations. They do not have the money to conduct all forensic tests that might be necessary, particularly, in cases involving vast amounts of digital evidence. When outsourcing to forensic science companies, the tendering process is based primarily on cost. There is no quality assurance in place and some contractors do not have adequate quality standards; Dr Gillian Tully, the Forensic Science Regulator is still awaiting statutory enforcement powers eight years after they were promised. In February 2020 she described forensic science as, “operating on a knife-edge for years, with skills shortages in digital forensics and toxicology, and choices to be made between operational deployment on one hand and making sure the basic quality-assurance measures are in place on the other.” Such matters are essential to prevent miscarriages of justice.
The CPS requires more funding in place to recruit personnel able to deal with the increase in workload as a consequence of the introduction of 20,000 more police officers and the increase in capacity as well as providing greater support for complainants and witnesses. Close to £1 billion has been cut from its budget in the last decade. More court staff are being recruited but these individuals need to be given proper contracts rather than engaged from agencies.
Many more courtrooms will need to be opened to deal with the inevitable rise in cases. In 2019, with the Crown Court estate for many weeks restricted to between 60-75% capacity for all hearings, trials rarely rose above 220 a week and resulted in only 12,000 effective Crown Court trials with 12,659 vacated.
In the week ending 1st March 2020, which HMCTS have deemed the pre-Covid baseline, 207 trials took place and 145 trials cracked whilst 292 were vacated and 80 were ineffective. The case backlog at the time stood at 39,331 (itself a rise of 26% in 11 months).
The latest criminal court data shows for the week ending 20th December, the last full working week that 123 trials were effective and 83 trials cracked. 514 trials were vacated and 65 were ineffective. This is significant because, after increasing steadily in the weeks after the re-opening of the Crown Courts in mid- May, the number of effective and cracked trials combined were reducing in number before the latest lockdown with peaks having been reached in November. In the week ending 15th November, 165 trials were effective while 79 cracked and in the week to 29th November 160 trials were effective and 89 cracked. In those weeks 484 and 451 trials were vacated, respectively.
Receipts for 2020 into the Crown Court are expected to be down around 15% from 2019, despite weekly receipts since the start of August ranging between around 2200 and 2450 and surpassing receipts pre-Covid. Receipts for the whole of 2019 totalled 104,341 and the case backlog at 31st December 2019 stood at 38,135. The current case backlog as of 27th December 2020 was 54,115. We are now back up to levels last seen in 2014 when it reached 55,456 by the end of that year. The total number of receipts, or cases arriving in the Crown Court, in 2014 totalled 135,562. The criminal justice system back in 2014 was, by no means, perfect but, in terms of efficiency and timeliness, it was several leaps ahead of 2019 let alone the current situation. The clear message is that there is no substitute for having the physical court room capacity to deal with caseloads when they rise.
The latest information from HMCTS released yesterday is that more than 290 courtrooms have been assessed as capable and available to hold jury trials. Whilst this is positive news, closer to 400 courtrooms will need to be made available to hold such trials if a coherent attempt is to be made to tackle the ever-increasing backlog. However, the reality is that, if one reached that level, there would be a problem populating those courtrooms with advocates and trial judges. The existing judiciary is insufficient in number to be able to cope with the volume of work now outstanding with trials in excess of 33,000. Recorders, are mainly practising criminal barristers and the more of them that are deployed to conduct trials, the fewer the barristers in circulation both to prosecute and defend. With criminal legal aid fees still at miserably low rates, particularly, for administrative hearings in both Magistrates’ and Crown Courts, growing numbers of more junior barristers continue to leave the profession unable to survive on minimum wage rates despite the vocation which inspired them to work in criminal law. The results of the Criminal Legal Aid Review cannot come soon enough.
Laura Brickman of 5, Paper Buildings, has sadly passed away after an unfortunate accident in her home. Laura combined a dedication to the Bar with being immaculately attired on all appearances. Whether prosecuting or defending, juries instinctively trusted her inimitable personality laced with a down to earth common-sense approach. She will be greatly missed by all who knew her.