Monday Message 22.03.21

Chair’s Update:
James Mulholland QC

Concerns have been raised by many criminal barristers that last week’s update from the Lord Chief Justice has given a green light for the judiciary to lead a headlong rush into in person attendance for every form of hearing at the criminal courts.

We believe this to be a misreading of the latest advice. Lord Burnett has stated clearly that “[r]emote and hybrid hearings will still play their part in managing footfall in courtrooms and public areas.” Remote hearings for administrative proceedings will continue provided there is no prejudice to justice by legal representatives and defendant being absent from the courtroom. There has been a slight change in emphasis from 5th January when it was made clear that the default position was that, effectively, every hearing other than a trial should be conducted remotely bearing in mind we were in the grip of a second wave of Covid-19 infections, death rates were heading back towards, and eventually surpassing, last April’s previous highs and the vaccination programme had yet to begin.

Circumstances in the wider community have, of course, changed and, while the virus is here for the long term, there is room for some discretion among judges to hold in person hearings, as the Lord Chief Justice has advised, but without altering the overarching strategy which remains one of keeping overall footfall in the Crown Courts to a minimum in order to maintain the priority of maximising physical court room capacity for the holding of in person jury trials. We have, in effect, moved from a red light to amber in relation to increasing the number of non-trial hearings.

It is clear from yesterday’s latest HMCTS update on the status of the courts that the Ministry of Justice reads Lord Burnett’s most recent message in this context. In addition to confirming the opening of seven additional Nightingale Crown Court rooms in order to reduce the trial backlog, HMCTS reiterated that remote hearings will continue to play an essential role. It had this to say about the Magistrates’ Courts. “Magistrates’ courts are facilitating the remote attendance of those involved in proceedings where the court has directed, and is able to facilitate, this. The safe operation of courts remains paramount so listing volumes are being adjusted to reduce the number of people coming to court, in line with the Lord Chief Justice’s recent statement. Updated guidance has been issued to those still required to attend in person.”

Lord Burnett’s remarks need to be set firmly alongside his January missive when the default position for non-trial hearings in all jurisdictions was ‘facilitating remote attendance’. All that is being done in the latest announcement is a shift from that extreme as infection rates drop. It does not change the overall direction of travel. That was firmly laid down last summer by the Lord Chief Justice with remote hearings to take place as a matter of course for many administrative issues thanks to the greater use of technology. On 28th July 2020 he told HM Judges at a keynote Mansion House speech “there is no going back to February 2020. In every jurisdiction there is a growing understanding of what is ideally suited for remote attendance, what is acceptable and what is not.” He added, with what we can now see as considerable prescience, “the difficulties caused by coronavirus will be with us for many more months, if not longer, and so the expanded use of technology will be necessary.”

Despite the successful roll-out of vaccinations recently in the UK, there is little doubt that the virus will be with us for years to come. Continental Europe is suffering a third wave of rising infection rates and bracing for renewed lockdowns. Even in the few days since Lord Burnett’s update, experts have begun to warn of a third wave of Covid-19 infections as a result of patterns abroad and the arrival of new variants and there may yet be a delay to the planned dates for the easing of UK restrictions as we exit our own lockdown. The need for technology in the criminal courts will persist as part of a vital safety regime and a balanced mix of remote and in person administrative hearings will continue. In the longer term, as the Lord Chief Justice assured the judiciary last summer, “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.”

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