Monday Message 25.01.21
James Mulholland QC
We held the first Executive Committee meeting of the year on 19th January and it was impressive not only to see such a high attendance but also to witness the level of engagement by so many across all the circuits on behalf of the Criminal Bar. Today, we continue to address the critical issue of safety at courts. However, we also highlight the work currently being undertaken across Working Groups and Committees to ensure the CBA remains a vibrant association which aims to improve the lot of our members and all whom we represent.
Concerns rise, yet again, as to the risk to health in attending court. We, self-employed criminal barristers, witness the daily failings of courts’ safety measures as we struggle to discharge our duties to help the system function. The CBA continues to receive numerous accounts of these failings. Empiric evidence from professional court users is vital and HMCTS needs to listen and learn from those who attend courts every day. Such evidence must lead to a re-assessment of safety within the courts.
The CBA has set up a Working Group to collate and publish incidents led by Mary Aspinall-Miles and Simon Csoka QC. It will now liaise directly with PHE and HSE, particularly, in relation to whether it is safe for all courts to remain open. Please continue to send details of incidents to We are holding a weekly meeting with representatives of all court users including unions which represent court staff, CPS, probation, prison service and others and published a . We continue to monitor the situation closely.
The impact of such safety failures can be seen in HMCTS’s own statistics. Before the latest lockdown, as of 15th December, the weekly incident rate amongst HMCTS’s own staff was higher than the national average with 310 cases per 100,000 as opposed to 265 cases per 100,000 across England.
Based on a chart displayed by HMCTS its own Webinar last week, the staff incident rate remained significantly higher than the UK average throughout the early part of January, after the re-opening of the courts. HMCTS expresses confidence that those contracting the virus are doing so within a community setting and not at court but its representatives would discover that is not the case if they only paid proper attention to the many reports from professional court users. That is why last Thursday’s Webinar approach was so disappointing.
The CBA had asked for a live Q&A session to be held. Unfortunately, the format that HMCTS selected, of its own accord, ensured that what took place resulted in being little more than a series of assertions made by HMCTS. Those who actively participate in the running of criminal justice within the live confines of the court room were reduced to attendees, listening to claims from on high which could be neither tested nor challenged nor even discussed. Such a lack of engagement not only fails the Criminal Bar but all those whose trials will be delayed further by infection.
The CBA repeats its assertion, based on hard evidence from professional court users that there is a systematic failure either to police or test and track the human traffic that comes in and out of the court room setting. Therefore, the measures in place are insufficient and bound to fail in terms of stemming the risk of infection flowing in and out the courts on a daily basis. Whatever the assertions by HMCTS about cleaning within the physical court space, unless and until the system of interchange is made safe as between courts and prisons, professional court users and courts and the public and courts, then safety within the court estate is compromised.
We continue to receive reports of safety issues throughout the courts. Last Monday at Bournemouth Crown Court, the judiciary took the decision to close the court because of the risks apparent after it was ascertained that a security officer, who became ill at court the previous Thursday, had contracted the virus only for that decision to be countermanded by HMCTS in Bristol. The court remained open with court users attending on Monday only for it then to be closed on Tuesday. At Thames Magistrates’ Court last week, we received a report of cases continuing until 8pm with up to 90% of those in the public areas of the court not wearing masks. Earlier this month, at Northampton Crown Court, families of defendants involved in a trial were allowed into the building en masse without compliance with safety measures or supervision. A barrister in the case subsequently tested positive for the virus and the trial had to be adjourned.
A pilot scheme is to be pursued by HMCTS in, approximately, 60 Magistrates’ Courts called ‘Misting’. This involves spraying surfaces with an antiviral disinfectant which settles and forms a long-lasting bond which, it is alleged, can safeguard a single room for up to 28 days. Time and money have been put aside for this but it should not delay the introduction of other enhanced measures which need to be implemented immediately. Systematic LTF testing and tracing needs to take place in every court in England and Wales; LTF tests must be carried out on all prisoners and a negative result confirmed before any individual is brought to court; court and each court needs to ensure several marshals, whose sole function is to ensure compliance with safety requirements, patrol both the public and private areas of court buildings. Government needs to confirm that vaccinations will be made available in the next period of distribution for court users with the emphasis on those who are at higher risk in attending court. HMCTS also needs to provide professional court users with full disclosure and allow for constructive, open debate in the form of regular Q&A sessions if it is to begin to alleviate concerns.
The Government’s lack of planning in relation to criminal justice and its one-track approach to increasing court capacity since the re-opening of Crown Courts in late May 2020 is demonstrated by its stance in relation to Blackfriars Crown Court. The court was sold for £65 million and finally closed in December 2019; yet, in late February 2020, Lord Burnett CJ had been told that there were plans ‘to build another crown court in London in the near future’. Whilst we all await a further update as to the permanent new Crown Court, the courtrooms in Blackfriars have remained ‘virtually untouched’. The court was available for re-hire in June 2020. HMCTS made contact but did not consider the rental cost value for money. Meanwhile, the three extra courtrooms provided by Prospero House remain the only Nightingale Courts available for criminal work in the whole of London.
A CBA Working Group on Court Capacity led by Lucie Wibberley continues to look at utilising some of the many empty buildings across England and Wales to hold trials during the pandemic and beyond. If necessary, we will negotiate with owners ourselves to try and secure the best deals for HMCTS. .
Criminal Legal Aid Review:
The MOJ has agreed for representatives from both the CBA and Bar Council to be appointed to the Expert Panel which will aid Sir Christopher Bellamy with the Review. A formal announcement as to the appointees will be made later this week. Derek Sweeting QC and I meet with Sir Christopher early next week. It is anticipated that the Review’s report will be published within six months. The CBA Remuneration Committee will also make detailed representations. .
A draft protocol has been prepared by the members of the CBA Judicial Liaison Committee which sets out the parameters of fair working practices for members of the Criminal Bar when engaged in cases in the Crown Court. The Joint Chairs of the Committee, Jonathan Higgs QC and Tana Adkin QC, recently held constructive talks with members of the Bar Standards Board to discuss the document. These talks are ongoing.
Young Bar Committee:
The Committee, chaired by John McNamara and Alejandra Llorente Tascon, is now up and running. Its primary focus is to improve both the working conditions and remuneration of the most junior barristers and pupils. If you have something to raise or wish to get involved, .
C21 Justice Working Group:
Whilst we await the long promised Royal Commission into the criminal justice system, a large group of barristers and academics under the guidance of Chair Ed Vickers QC is busy gathering evidence on a wide range of issues relating to fairness and efficiency for all within the Crown Court. A survey will soon be sent out to the profession and a report will be presented to the Lord Chancellor before being published in the summer.
Retention Working Group:
The Group led by Elizabeth Marsh QC and Sophie Shotton is analysing the underlying reasons why so many individuals continue to leave our profession and what is needed to resolve the problems. The group is liaising with the Inns of Court, Bar Council and other groups as well as preparing surveys and conducting interviews. Hopefully, it will be able to share its thinking with the Legal Aid Review whose remit extends to this area as well as publishing a report in the summer.
Law Reform Committee:
Headed up by Jeremy Dein QC, the Committee has already produced several papers and is currently working with the Law Commission on its 14th programme of law reform to find projects which will develop and improve the criminal law.
An annual conference is being organised by Chair, David Young and his team as well as a webinar series on international criminal law practice. Internships for criminal barristers, in a venue such as The Hague, are being planned.
We also have ongoing programmes developed by our Education, Equality and Diversity and Social Mobility Committees. Dozens of barristers continue to work towards the improvement of the Criminal Bar for us and for future generations. We welcome your active and ongoing participation.