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Monday Message 22.11.21

Back to the Future on CVP?

I have been clear that the long-term sustainability of our profession depends not just upon a swift and comprehensive fees settlement for our members, but also upon the urgent need to reform our working conditions in order to attract the next generation of advocates and to persuade those already within our ranks to remain committed to the practise of criminal law. So, while we continue to await the publication of the CLAR recommendations on our pay, I want to address one of the key issues that I know is causing much vexation to our members and undermining the quality of their working lives: the increasing difficulty in securing CVP for procedural hearings.

In his speech to HM Judges at Mansion House on 7th July, the Lord Chief Justice said this: “We will learn lessons from the adaptations that were necessary to ensure that the wheels of justice continued to turn during the last 16 months. In the early days it was hard going in every jurisdiction as those involved in proceedings moved to increased use of technology. There will be no going back to February 2020.” It was an assurance that gave hope to thousands of beleaguered and exhausted criminal barristers for whom CVP had been a lifeline to help them survive the pandemic induced convulsion suffered by our justice system, and thereafter to maintain control over their practices as cases were pushed through listings at a relentless pace. Without doubt, the use of remote hearings, where appropriate and justified, has revolutionised our working lives for the better and provided a critical tool in our collective efforts to try and get the backlog under control.

Indeed, the multiple benefits of our new hybrid system have been embraced by criminal advocates across all circuits. In the CBA’s response to remote working we set out some of the obvious advantages: maintaining case ownership by instructed counsel who are stretched between courts and who are best placed to facilitate the smooth progress of their cases, which can only help the administration of justice and avoid unnecessary delays; permitting advocates to deal with more than one hearing in a day, which again helps to unblock the backlog whilst also enabling our barristers to recover some of the huge losses of income suffered last year; savings in the considerable time and costs incurred in travelling often long distances for short hearings, which spurs productivity by eliminating time wasted in transit; reducing footfall in court centres which dampens the risks of covid transmission; minimising our contribution to carbon emissions by avoiding pollution creating methods of transportation; promoting a more flexible and family friendly working regime, particularly for those with caring responsibilities; and reducing the unprecedented levels of stress currently being felt by the vast majority of us as we struggle to manage the burgeoning demands on our working days and nights.

It is precisely because these benefits are self-evident that we have continued to press for an expansion of the use of remote technology in cases where no harm is caused to the interests of justice. Yet each day the CBA receives emails from members who are frustrated and bewildered by the apparent retrenchment of CVP in particular courts across the country. We are not oblivious to the challenges faced by our judges who are themselves working under considerable pressures to keep the system from crashing. We understand that sometimes the technology can operate less than perfectly; it is, after all still relatively new and more investment is undoubtedly needed to improve its reliability and sophistication. We also recognise that we must do everything we reasonably can to lodge our applications for CVP in a timely fashion, notwithstanding that our diaries are sometimes hostage to the often very short notice given to us by listing officers. And we know that it is in our own interest to ensure that our applications provide well argued reasons to assist our judges in making fair and sensible determinations.

But none of those caveats justify what seems to be the insidious withdrawal of opportunities for remote hearings in a growing number of courts through the interpretation of the interests of justice test in what may be an overly restrictive fashion. Indeed, we have noted a steady increase in the number of courts operating their own individual local protocols which set out criteria for CVP applications that are drafted in terms that are expressly more prohibitive than they are permissive. The rolling out of different local protocols across the jurisdiction is hardly likely to promote consistency in judicial decision making and is a recipe for confusion and irritation for our members who necessarily work in a range of courts and on different circuits. At a time of crisis in the criminal justice system, when it is vital that the bar and the judiciary work collaboratively and with a spirit of mutual respect and trust, every effort should be made to promote fairness, flexibility and clarity in the use of remote technology. This is precisely why we have been lobbying the senior judiciary to adopt a national protocol, devised in consultation with the CBA, Resident Judges, Circuit Leaders, the Bar Council and court users. We will continue to do so, at every opportunity, not least because the public expects a justice system that harnesses technology to promote efficiency, and which encourages advocates to remain committed to the profession over the months and years to come.

There is indeed “no going back”.

Wellbeing Event

A little kindness can go a long way with colleagues at the criminal bar; not least because work related stress can affect how we interact with each other both in, and out of, court. We are trained in an adversarial system that fans our competitive instincts, and sometimes those bouts can create a little friction. But the many advocates I have worked with in our profession are also some of the most compassionate human beings I know. Now, more than ever, we need to show each other a little kindness.

Feel free to come along (or zoom in) at 1800-1930 this evening to “Kindness – an interactive session”. It’s a panel event taking place in the Queen’s Room in Middle Temple. Professor Robin Banerjee from Sussex University will talk about how we can encourage kindness within the criminal bar whilst still exceling as professional advocates. We are very grateful to Valerie Charbit, the CBA’s Director of Wellbeing for organising the event and I’m looking forward to joining my fellow panellists Christine Agnew QC and Nicola Shannon. Please contact the CBA Administrator before 1700 today if you’d like a remote link.

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