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Monday Message 23.03.20

It is unlikely that you will receive a single Monday message today; instead it is likely to be replaced with a number of bulletins as things are rapidly changing.

First, you will have received the guidance from the LCJ in an earlier email today. We, along with the Bar Council and others, have been lobbying hard for the cessation of trials and in person hearings until proper protocols and policies have been put in place to ensure your safety and that of all court users. SAFETY is paramount.  We cannot over emphasise that. At the present time, we consider the courts to present an unacceptable risk to our members, court staff, gaolers, security, jurors, witnesses and our Judges.  We are seeking risk assessments.

We consider that without confirmation from the Resident Judge that your hearing can be conducted with social distancing and hygiene measures are in place, you would be perfectly entitled to take the view that you ought not attend in accordance with the LCJ’s guidance above.

We repeat that if you decide not to attend court, owing to concerns about social distancing, hygiene or in accordance with PHE advice, we will support you.

Only truly necessary hearings should go ahead and these must go ahead remotely.  There should be no physical hearings.  Courts should be closed until it is safe to hold hearings. This is unlikely to be in the immediate future. We cannot afford to rush through this stage because the repercussions are too great. A proper period for reflection and planning is necessary. We note that a new cleaning contract has been raised by HMCTS but this is not due to commence until 1 April 2020. The current state of the courts is our principal concern. Courts in all jurisdictions routinely close or limit hearings in the summer periods and over other holidays such as Christmas and Easter.  It is reckless to press on now in the face of the clear PHE guidance and expert evidence. There can be no compromise on these issues.

The Courts should not reopen until safety can be assured. The CBA and Bar Council must be part of that conversation and decision making. If not, our advice will be clear – we will not advise our members to attend court if we or they consider their safety and others to be compromised.

The political pressure to keep courts open is unacceptable, not least given their previous neglect and the lack of concern for any of the endemic delays or issues in the criminal justice system. Within the recent past there was no care for the removal of cases from the criminal lists. Now there is an unacceptable pressure to press on regardless. That in simple terms is wrong, is dangerous and fails to exercise any duty of care to court users. When, and only when, it is safe, can hearings be resumed.

We need to begin to plan for that phase now and the aftermath and longer term position.  With regard to the latter, In order to cope with the aftermath all available courtrooms will need to be open and properly utilised and, if needs be, fresh courtrooms located. All available Judges and Recorders will need to be engaged and, if necessary, others trained in order to cope with the considerable backlog.  A shoestring justice system will not suffice. We cannot have a justice system running at limited capacity. It will not be possible to justify idle courts and cases just being adjourned off. The days of trial being casually adjourned for eighteen months have passed.

In summary, the LCJ has stated that:

1. No jury trials or other physical hearings can take place unless it is safe for them to do so. A particular concern is to ensure social distancing in court and in the court building.

2. No new trials are to start today. Jurors will be contacted by the Courts.  It is unclear as to who is to contact defendants, witnesses and others.

3.Trials may start from as early as this afternoon but only if specific arrangements to ensure social distancing and hygiene are put into place.

4. All hearings in the Crown Court that can lawfully take place remotely should do so.

5. Other hearings not involving a jury should continue if suitable arrangements can be made to ensure distancing.

6. Efforts to conclude existing trials should continue. Social distancing and hygiene must be put in place. Resident judges must determine whether whether a trial can safely be continued.

7. If it is necessary to adjourn trials already underway for a short period to put those safety measures in place, this must be done.

8. The same applies to Magistrates Court hearings so no new trials or physical hearings must take place unless safe to do so. It is unlikely in our view that this can be achieved in the short term without clear policies, procedures, protocols and hygiene. Remote hearings are the default position. There is an emphasis on the magistrates only continuing with urgent work. We read this as being essential/necessary work only.

At present there still remains a lack of clarity on various issues and we note the concerns raised already by many of our members, including what to do in practice; whether advocates should attend court today and the position on trials in the Magistrates Court amongst others. We and others are seeking urgent clarification.

Finally, can we also encourage you to look at and follow the CBA twitter feed. It provides real time updates, when and where we have them, along with other helpful information: @TheCriminalBar

A film: JAWS.  Mayor Larry Vaughn. Need we say more.



Caroline Goodwin QC

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