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Monday Message 28.09.20

Chair’s Update:
James Mulholland QC




Two key events took place last week which require a degree of careful evaluation. Chris Philp, Parliamentary Undersecretary at the Home Office, told the House of Commons that courts are operating better during Covid than before it began. His words were that “the outstanding caseload in the Crown court, even with coronavirus, is lower today than it was in 2010, so we have managed to run the court system more effectively with coronavirus than the last Labour Government did without it.”

The evidence, regrettably, for all court users is quite the reverse. The focus should not be on the case backlog but the time it is taking for cases to journey through the system. In 2010, 152,791 cases took an average of 391 days from the offence to complete in the Crown Court. In 2019, 107,913 cases took an average 511 days to do so. Consequently, 30% fewer cases took over 75% longer to complete. Latest MOJ figures published 10 September 2020 show that at the week ending 23 August the case backlog was 46,467. The last time the backlog was higher than this was 2015.

The latest MOJ Crown Court statistics for the quarter ending 30 June have been published. These describe the number of vacated trials during the last quarter of 2019 as at a ‘series low’. However, looking merely at the ‘absolute’ number does not provide a proper narrative. 12,660 trials were removed from the list in 2019 despite the fact that the total number of crown court trials going through the courts was lower than it had been for thirteen years. The number of effective trials that took place in 2019 was a record low, 12,100. This means that more trials were vacated than, actually, took place.

These delays are unacceptable in any civilised society and inflict great misery on all involved. This government deliberately chose to maintain trial backlogs in order to save costs by cutting full time court staff and restricting court sitting days. It ran the court system less effectively in 2018 and 2019 than in any previous year, irrespective of who was in power. That is why the Secretary of State for Justice was compelled, belatedly, to announce a Recovery Plan three weeks ago.

It is crucial that there is proper acknowledgement across government as to the dire state of the system before Covid struck if we are to get back to a stage where trials are dealt with expeditiously. Those in power must be careful to avoid the perception of 1984 political doublespeak.

Extended Operating Hours:

The results of a survey of members of the legal profession by Women in Criminal Law (WICL) have just been published. 88% were against EoH arrangements. Only 3.9% were in favour. 43.1% of those against gave their main reason as the impact on their work life balance. An advocate’s day does not begin when they arrive at court. They will have spent many hours preparing for a hearing or trial. 40.8% cited child care and other caring issues. Advocates, often, live many miles from the court at which they are due to appear. To have substitute carers on standby from 6am until 9pm, whenever court hours demand it, is impossible.  It is exactly these types of initiatives which cause so many people to leave the criminal bar and impact so negatively upon diversity issues.


Whilst we have been told that the country is at a ‘perilous tipping point’ and that those who run the courts are doing what they can to keep people safe, testing remains a major problem. We had a lengthy discussion on Thursday with HMCTS and emphasised the need for an individual who becomes symptomatic at court to be prioritised both in terms of testing and in the speed of the results. We have, today, received this official response from HMCTS. “As soon as it was available in April, HMCTS registered with the Government’s employer referral portal for essential workers and members of their households who have coronavirus symptoms. Over the last few weeks, recognising the unique role of jurors, we have worked with Department of Health and Social Care (DHSC) to enable symptomatic jurors to be included in this referral process. We continue to work with Department of Health and Social Care – which leads on testing – to ensure that the issues specific to courts and tribunals, and all those who work in them, are understood and can be considered as new policies and practices are developed.” Meanwhile, limited testing capacity remains a major issue. We have been receiving reports of cases being delayed or juries discharged because of symptomatic jurors, witnesses and defendants and their inability to secure a test or a result within a reasonable time. Please continue to send us this information.

Multi handed trials:

There are currently no docks which can support a trial of seven or more defendants in a Covid compliant way and this continues to present significant logistical problems. An announcement has finally been made about the available options. An important one is the multi-courtroom approach with defendants physically present and engaged at court able to address developments in the case immediately with their legal teams. Yet again, it is clear that Nightingale Courts need to be an integral part of the solution in one form or another. Cases of this size place significant pressures on the existing court estate and cause further delays to other trials. Either, government creates secure docks in large Nightingale buildings around the country to hold these trials, as it is considering in Swansea, or it uses such buildings to hold other trials where defendants are on bail giving extra space to the estate and enabling all cases to be heard within a reasonable timeframe.

Fee Reviews:

We have met with the MOJ and CPS in order to discuss the upcoming reviews. CLAR2 will begin during the autumn and is entirely separate from the Comprehensive Spending Review.  We are working hard to ensure that it has a sensible framework and that its recommendations will be implemented by Treasury. The CPS Review is linked, in part, to the success of submissions it has made to Treasury and, therefore, will not commence until the government wide review has been published. We will keep you updated.

The depressing and demoralising experience of a junior black woman at the criminal bar last week in being repeatedly mistaken for a defendant is a salutary reminder as to how far we need to go to rid our system of prejudice and damaging stereotypes. We must stand together as a profession and do our utmost to ensure that any form of discriminatory behaviour, whether based on conscious or unconscious bias, does not pass unchallenged.

Finally, the death of Croydon Police Sergeant Matt Ratana is a tragic reminder of the dangers faced by police officers on a daily basis in the discharge of their duty. Our thoughts are with his family and colleagues at this incredibly difficult time.

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