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Monday Message 19.10.20

Chair’s Update:
James Mulholland QC

Today, Monday 19th October, Chester Town Hall is added to the list of Nightingale Court buildings conducting jury trials with two trials listed to take place in rooms within the building thereby doubling the trial capacity in Chester. The government was told many months ago that 60 additional criminal courtrooms were necessary to deal with trials where defendants are on bail freeing up the existing estate for custody trials. Five months after the first Crown Courts were re-opened, with Chester today, we have just five extra buildings providing a total of eight more courtrooms for crime and are creeping towards 15% of the number of additional courts initially requested.

It is now two months since government was warned by the House of Commons Justice Select Committee to find and make available additional court premises. In addition, it concluded, “[w]e commend the Lord Chancellor to capitalise on the momentum built up over the last four months to build the capacity of the court and tribunal system for the long term.”

The continued delay in responding to this issue has made the position far worse. Over the past few months, more cases have been entering the Crown Court system on a weekly basis than have been concluded and the case backlog continues to rise standing at 48,713 on 20th September this year, an increase of 22% in the last six months.

As bad as this is, we need to focus on the trials backlog. There are two weeks until the government’s self-appointed 31st October deadline to have 250 courtrooms, actually, conducting jury trials. Consequently, the latest statistics are very troubling. In the week ending 20th September there were only 96 effective trials. Almost five times that number of trials, 457, were vacated.

The number of outstanding trials was already out of control pre-Covid at 17,400 as of 1st March 2020. It stood at more than 31,000 as of 20th September, a leap of 78% in just six months. Bearing in mind the number of trials being vacated on a weekly basis, it will be edging up towards 33,000 by the end of October. It was apparent back in July that many large multi-handed trials, of which there are over 130 in the system, were unable to be heard within the existing estate and almost all of these still do not have a home.

The only way for the criminal court estate to cope with the current volume of custody trials, let alone those on bail, is to open more court buildings, open them fast and keep them open long term as part of a structured and sustainable recovery plan. This is not merely the Criminal Bar’s conclusion but that of the Lord Chancellor himself who told Parliament regarding Nightingale Courts on 23rd June following the announcement that 10 extra buildings would open: “ I need to scale that operation up dramatically, and to unprecedented heights, if I am not just going to deal with the current backlog but to manage it in a position that I think is sustainable for the long term.”

Those suffering the most from an inexplicable delay to seek out more available court rooms, are the tens of thousands of complainants, witnesses, defendants and their families whose lives are left on hold whilst trial dates are abandoned. Following an equality impact assessment undertaken by the officials at the MoJ, we now know that the recent two months extension of CTLs will disproportionately impact black, Asian and other minority defendants. Yet again, the government is simply disregarding the discriminatory effects of its quick fix solutions.

Further, the government has just reconfirmed that workers in courts are protected from Covid lockdown regulations as they are part of “an essential public service”. All involved are expected to attend court when workers in other fields are encouraged not to travel to their workplace. The evidence, however, is that, as usual, the service is not receiving the level of funding required to match the commitment of others.

We now do not just need more Nightingale courts to deal with defendants on bail. We need more of these courts with secure docks equipped to deal with custody cases. Everything that is happening in relation to these courts is taking place in slow motion. Instead, government tinkers with small increases to capacity within the estate whilst ignoring the bigger picture. Flawed ideas such as Extended Operating Hours continue to be pushed forward having been rejected on several previous occasions as unworkable in the criminal sphere. Those officials who promote the scheme ignore the findings of their predecessors and are oblivious to the work of the average self-employed junior criminal barrister. These are individuals who do trials in many different crown court centres, often, many miles away from where they live. During an average trial, they will often be working 15 hour days, spending up to twelve hours away from home as well as having to do two or three hours on other work outside that period; all for hourly rates comparable with the minimum wage. Starting courts earlier and sitting later will make their lives far more difficult and, inevitably, discriminate against those with caring responsibilities as well as all within the justice system in a similar position. The impact will be far greater for women at the criminal bar and continue to undermine the diversity of a beleaguered profession. What is worse is that if such measures were rolled out, they would be in place for years as a consequence of the failures in relation to Nightingale courts and a lack of any coherent strategy going forward. It is appalling that government seeks to make life even harder for individuals who have kept the system going for so long under such extraordinary pressures and who were left unsupported during lockdown.

It has been clear since 18th May, when a handful of Crown Courts reopened after a two month hiatus, that a long term plan was needed to deal with the current crisis. This has been, repeatedly, hammered home by regular statistical updates available to the MOJ which detail ever worsening problems.

We are at a critical point in relation to the backlog and a 15% response to the need for additional Nightingale court rooms is underwhelming. In the next year, police recruitment will mean that the volume of criminal work going through the courts begins to increase significantly and inadequate measures at this stage will ensure that delays grow ever longer and further erode the faith of the general public in a criminal justice system that continues to fail to protect them from harm.

Cracked trial fees:

The LAA has updated its guidance relating to cracked trial fees where the defendant has entered a not guilty plea but a trial date is not fixed as a consequence of our recent meeting. The Guidance now says the following:

“Clarification is needed where cases crack following effective first hearings where a not guilty plea is entered, but no trial date has been listed due to COVID-19. Where this happens, the LAA will pay the basic fee that applies where the trial cracks in the final third. This applies in cases with a representation order dated on or before 16th September 2020. Cracked trials in cases with a representation order dated on or after 17th September 2020 are automatically entitled to the fee for a cracked trial. This is the equivalent of a basic trial fee for advocates, regardless of whether a date has been listed for trial”.

The update is here. The Crown Court Guidance document has been amended to remove a reference to ‘date listed for trial’ previously at para. 2.7.3. The latest version of the document may be found here.

Many thanks to the LAA and, in particular, Nick Ford, Service Development Manager, for adopting a sensible and fair solution to a significant problem. It is positive news during, what continues to be, an incredibly difficult period for the criminal bar.

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