Monday Message 21.09.20
James Mulholland QC
Slowly, the message is getting through to the general public as to the state of the criminal justice system. The recent visit of the BBC to a London court reflected the underlying delays and lack of resources with which everyone in the system has been living for years. A dead pigeon is an appropriate metaphor. Bringing in tough new sentencing provisions will have little effect when we have the lowest charging rate since records began. It will not assist the vulnerable pensioner whose house has been burgled and who has, as little as, a one in fifty chance of seeing the offender brought to justice or help the rape victim who, if their case is pursued, will have to wait, on average, three years from the offence to the conclusion of the matter. It will provide no solace to the innocent defendant who may have to wait, on bail, for up to four years to clear their name. The gesture politics needs to stop; in its place, we need a structured plan to address problems across the system that are all too apparent.
Remote Hearings Protocol
In a speech to HM Judges on 28th July 2020, the Lord Chief Justice said, “the idea that lawyers will be required to travel for an hour or two, wait around and then deploy arguments for half an hour before travelling back, has now gone.” A significant number of courts do not appear to agree with these sentiments. It is commendable that some are now publishing Recovery Plans which provide clarity as to capacity and which show a willingness to adapt in light of the worsening health situation. . However, other courts are adopting a less conciliatory approach and many advocates are still being required to attend basic administrative hearings in person. Only last week, an application by prosecution counsel at a south eastern crown court to conduct a short trial readiness hearing remotely was refused, simply, because defence counsel was attending in order to have a pre-trial conference with his lay client. This was despite the fact that counsel explained that he was living with a family member vulnerable to Covid. Another advocate had to be instructed on the morning of the hearing and made a four hour round trip to deal with the case. When you take off travel expenses and other costs, that individual will be fortunate to break even. This has to stop. A national protocol dealing with remote hearings should be put in place now setting out rules of practice for all courts to follow.
Each crown court needs to have access to immediate testing and rapid results if jury trials are not to grind to a halt during a second wave in the autumn. Individuals requiring a test should not have to travel miles and then wait days for the result. The recently approved DNAnudge test uses nasal swabs and produces results in around 90 minutes on site without handling by a laboratory. A study in The Lancet Microbe has found it to be extremely accurate. One small box can process up to 16 tests a day. The use of these machines in the courts is an obvious necessity. The estimated cost of a single test is £40; a small price to pay to keep a trial on track.
The accelerated asks are now in force and apply to all current cases. On Thursday, the LAA published its . Whilst the rates are poor, we have worked hard to simplify the process for the vast majority of advocates’ claims. In relation to Excess PPE, where digital evidence is not involved, the completion of a basic form setting out the time claimed will suffice. For unused material, a fixed fee will be paid for work up to three hours. if the material served is such that it requires between three and ten hours work a short claim form similar to that for PPE will, again, need to be completed. It is estimated that this process will cover in excess of 90% of claims.
Extension of Hours Pilots
Portsmouth and Reading begin today. Cardiff has been delayed until Wednesday. These pilots raise numerous issues and it is very important that the advocates involved so that these can be monitored.
We still require volunteers to join the Working Groups on the Justice System and Retention. With your help, we can make a difference. Please get involved.
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