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Monday Message 19.04.21

C21 Working Group:

The Survey will now close tomorrow at 5pm. Please could the final few who are yet to complete it please do so. It will form part of a comprehensive review assessing the treatment of court users within the Crown Court estate. We need your input if we are to ensure that the criminal justice system, once again, reaches the high standards required of such an essential public service.


There can be no return to the old sense of “normality” that existed pre-pandemic for the criminal courts if the criminal justice system is to learn the lessons of the recent past and to be prepared for a future where the risk of infection from constantly emerging new strains of the virus remains high. In the era of globalization, we also need to be prepared for the “known unknown” scenario of another pandemic that is not Covid-derived, but which, without crisis planning, could produce the same end result whereby a deadly and rapid mass infection brings society to a gridlock. Ensuring the continued roll out, rigorous testing and effective use of CVP across the entire prison and court network, is basic common sense and part of the preparation for an uncertain future to ensure we can shape a new normal; one where remote and in-person hearings work together to limit footfall without compromising access to justice and one which preserves the sanctity of in-person, in situ jury trials.

Last month’s report by the House of Lords Select Committee on the Constitution titled, ‘Covid 19 and the Courts’, set out a clear recommendation, which the Criminal Bar endorses, that “all future risk assessments prepared by the Government, the Ministry of Justice and HMCTS consider the impact of major threats to the operation of courts and tribunals. The results of those risk assessments should be made publicly available on at least an annual basis, and include a statement of the steps that have been taken to manage the identified risks. It is essential that the operation of courts and tribunals be adequately protected as part of all future Government risk planning.” That recommendation was made early in the report because, lest it be forgotten, the MOJ was last involved in scenario planning not for a pandemic but a flu outbreak as part of government-wide preparations back in 2016 under Exercise Cygnus. As part of those preparations, the report noted, “the potential impact of an outbreak on court operations was not considered.”

It is vital that the MOJ reflects on this section of the House of Lords report with care and that this Government uses the next few months wisely so that we are not, collectively, lulled into a false sense of security. “HMCTS annual reports identify risks to the effective operations of the courts, but did not cover operational threats on the scale of the pandemic”. The report continued, “It is regrettable that the potential impact of a pandemic on the courts, a crucial public service, was not considered by those responsible for overseeing the justice system. Had the risk been identified in advance, the urgent need for modernised court IT systems and additional court estate might have been recognised sooner.

These are salutary warnings as we see fresh directions beginning to emerge from Crown Court centres in relation to remote hearings and the nation heads towards the end of the remaining lock-down restrictions in June. One such direction from Canterbury Crown Court last Friday begins: “As restrictions ease, we are continuing to try and take tentative steps back toward normality. This will mean us, in accordance with the guidance issued by the Lord Chief, starting to list an increased number of cases with all parties expected to attend court in person.”

The detailed break-down as to which administrative proceedings should take place with individuals attending in-person seems to be a measured approach; however, care must be taken about using phrases such as “back toward normality”. With the UK Prime Minister, only this week, postponing an official visit to India for the second time amid a devastating second wave of Covid infections in the world’s second most populous country, it may be premature for this island nation to refer to a return toward normality. As of Monday, India reported 273,810 new Covid-19 cases in one day, according to data from the Indian Ministry of Health.

The roll out of CVP must be continued, particularly, within prisons where significant capacity issues remain, forcing many Crown Courts, including Canterbury, to resort to in-person hearings. Capacity must be addressed whilst maintaining the quality of the communication. Whilst dozens of local Crown and Magistrates’ Courts were part of a programme of closure which continued up until 2020, the Government has committed billions of pounds to a courts’ IT reform programme which, nonetheless, remains behind schedule and where doubts remain about the quality of reform. Again, the House of Lords had this to say, “[i]n the years following its announcement, the progress of the reform programme was criticised by the National Audit Office (NAO) and the Public Accounts Committee (PAC). Both expressed concern that HMCTS was falling behind schedule, and that attempting to deliver significant reforms at pace risked undermining access to justice…In response, HMCTS and the Ministry of Justice deferred the target date for implementing the reform programme by three years (from 2020 to 2023)…The PAC and NAO later considered even the revised timetable unrealistic, and continued to express concern that HMCTS was proceeding with reform without sufficient analysis of it’s the [sic] impact on justice outcomes or vulnerable court users”.

The new “normality” must be one where public funds are spent wisely and reforms achieve what they set out to do, to improve access to justice. Anything less and we will have learned nothing from the current crisis. We remain, cautiously, optimistic about the future provided government plans now for the worst and invests accordingly in order that we may all hope for the best.

Bar Benevolent Association:

The last year has been immensely difficult for members of the criminal bar many of whom have had little work and endured considerable hardship. Please do not suffer in silence. If you have experienced financial difficulties as a result of the pandemic and need help, contact the Bar Benevolent Association and make an application for relief from its Covid fund.

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