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‘Monday’ Message 20.07.21

A long march to freedom:

Today marks the end in England of national limits on gatherings and social distancing after 480 days of Covid restrictions. The lifting of most Covid restrictions in Wales is expected from 7th August. Within our Criminal Courts there is a long, gradual march back to the freedoms from which professional practitioners, judiciary, court staff and participants benefitted pre-pandemic. As a collective community, we must tread carefully over the weeks and months ahead to ensure that the move back towards greater user of existing court room capacity does not trigger a retrograde step towards greater risk of Covid transmission within the narrow confines of our court rooms, corridors, conference rooms, custody cells and jury deliberation areas.

As HMCTS has made clear, the wearing of face coverings inside court and tribunal buildings remains mandatory; plexiglass dividers will remain in place and social distancing continues in custody suites.

Preparing questions for the HMCTS 27th July 2021 session: “Responding to Milestone 4 of the government’s roadmap out of national restrictions for England.” 

The Criminal Bar travels the length and breadth of England and Wales to hold cases together. From the most junior barrister to the most senior silk, it collectively provides the best first-hand experience of how court arrangements work. A feature of the pandemic has been that the practices of courts vary considerably throughout our jurisdiction and HMCTS needs to know what works and what does not. In order that we can all benefit from a constructive critique of what the CBA membership has learned over the last fifteen months, please send any questions you wish to be asked at next week’s HMCTS online panel discussion to the CBA administrator. The session is being chaired by Paul Harris, HMCTS Operations Director. I will be on the panel putting those questions to HMCTS, alongside Bar Council chair Derek Sweeting QC.  The event takes place from 5-6pm on Tuesday 27th July. Please register here if you wish to attend HMCTS Roadmap Milestone 4 Registration, Tue 27 Jul 2021 at 17:00 | Eventbrite.

Remote hearing Practice Direction:

As we learn to live with Covid, remote hearings will need to play a crucial role as part of an ongoing safety-at-court strategy; so that we can maximise court room space for trials and in order that the limited number of criminal barristers practising can do its utmost to reduce a backlog which otherwise will continue to rise. We have stressed repeatedly that one of the most important responses to “Milestone 4” is the need for a Protocol or Practice Direction providing clear guidance for the judiciary to follow in deciding when remote hearings are appropriate. We raised this a year ago. With infections back on the rise and a “pingdemic” rampant, any further delay is unconscionable. It is worth repeating what HMCTS stated on 9th June 2021: “As restrictions ease, we expect that video hearings will continue to be an integral part of a 21st century justice system, used in those hearings where the judge considers it appropriate. We will continue to monitor the impact on users and work closely with the judiciary.”

Testing for safety:

HMCTS has made it clear that it continues to work with Public Health England and Wales in order to maintain Covid-secure court buildings.

The CBA recommends regular testing for all court users, criminal advocates included, in order that no one group becomes an unwitting vector of Covid. A cautious approach to interaction within the court building remains essential for, as we have been witnessing for months, Covid 19 has a habit of mutating into ever-changing variants with differing rates of transmission and a significant impact even on those double vaccinated.

We endorse HMCTS’s stance adopted in their weekly operational update in which they state “[w]e actively encourage our staff and all court users to support their local authorities by taking part in surge testing in areas affected by variants of concern. We also strongly encourage everyone to continue with twice-weekly asymptomatic rapid testing regardless of their vaccination status. Anyone who tests positive should self-isolate and follow the latest NHS advice”.

Criminal Legal Aid rates of pay offer the key to unlocking a diverse judiciary:

Last week the MOJ published its annual “Diversity of the judiciary: Legal professions, new appointments and current post-holders – 2021 statistics”. The proportion of judges who identify as Black, Asian or Minority Ethnic has gradually increased from 7% in 2014 to 10% as of 1st April 2021. The proportion of black judges has remained the same, at 1%. The Lord Chief Justice said last week that “there is clearly work to be done”.

The report suggests that progress has been made within both barristers and solicitors’ professional groups, the mainstay of tomorrow’s judiciary, in that representation of BAME practitioners amongst their numbers appears broadly to reflect representation in wider society. However, this is a relatively recent trend with representation amongst junior lawyers in line with the national average but the percentage dropping back amongst more senior practitioners. This may reflect positive action taken to increase diversity by chambers, law firms and their representative bodies but the concern, both for the bar of today and the judiciary of tomorrow, is if such positive action to diversify the legal profession is cut off at its roots. As the Criminal Bar Association stated in its submission this month to the Independent Review of Criminal Legal Aid, “[p]oor overall rates of remuneration in criminal legal aid defence work have resulted in a reversal over recent years of the progress made by the Criminal Bar to bring greater gender, ethnic and social diversity to the profession and to better represent the diversity of the public it serves, whilst the exodus of junior advocates continues to increase.”

The Criminal Bar deserves better than to lose a generation of talented barristers from diverse backgrounds because of abysmal rates of pay. The public deserves better than a criminal justice system where the judges are borne out of a privileged elite which fails to reflect the wider society in which we live.

Election for Vice Chair of CBA:

Kirsty Brimelow QC has been elected to the position of Vice Chair as of 1st September 2021. We congratulate Kirsty who will provide strong support to Jo Sidhu QC when he takes over as Chair at the same time. I send our commiserations to Narita Bahra QC who will, undoubtedly, work on behalf of the CBA in other roles in the year ahead.

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