Monday Message 06.07.20

ORDO AB CHAO:

We want and need some order out of the chaos that we are presently facing.

LISTING REMOTE:

We have different protocols for different courts, we have differing attitudes to whether hearings are remote or not.

I am not even going to draw to your attention, the Governments own guidance on “Going to work/safer spaces” who should be going exactly and in what circumstances. Let us be clear the criminal bar wants to go to work, to play its part, to be part of the courts recovery plan but it is the inconsistency, the lack of clarity and the ignoring of sensible requests not to attend that are beginning to cause resentment.

We have been asking for a clear understanding and we need it more than ever now. We have provided suggestions and been in discussion, but we need action so as to provide a clear way forward.

The criminal bar has been left with no help financially from government, trials are not coming on in numbers sufficient to address the financial problems we are having and to rub salt into the wound, we are being told to go to court when quite frankly it is not necessary. There are hearings which lend themselves very well to “remote” and there are those that require, undoubtedly the attendance of counsel. We know the difference. We always put both the client and the interest of justice first, that is our duty, but a sensible request during a period like that which we are still experiencing ought not to be ignored or treated in a high – handed manner.

The CBA office has been inundated with emails where counsel have been told last minute that they will be expected to attend at court or reasonable requests which satisfy the “interests of justice” test have been waved aside or those with medical problems have not received the proper regard that they deserve.

We all know we have to begin to go back to work but remote can play a positive part and if counsel has to attend then communication is vital and not just the night before.

Clarity is needed urgently.

LISTING: POOR PRACTICE:

This week the following was brought to my attention: A trial which had had to be adjourned because of COVID-19 was brought in for a custody time limit extension application. During the course of that hearing it was indicated that the case may in fact be listed as soon as possible which was very encouraging. All parties confirmed that they were trial ready. Counsels clerk  tried to ascertain when it was likely the case would come in. The list office was informed that counsel had other matters to deal with before the 6th of July, but they could be cancelled if necessary. No response was received from the listing office. On Wednesday, the 1st of July at 13:30 the defence were notified that the matter had been listed for trial the following day. Defence counsel was now sitting as a first tier tribunal judge and had a list of telephone hearings, which could not now be returned to another judge. Thus defence counsel who was on public duty and who had been instructed since February and had had lengthy conferences with the defendant as well as attending several hearings now found themselves in the position of having to return a case which was a serious matter with complex instructions. The application to adjourn was made immediately and rejected. Counsel will receive nothing.

Not exactly helpful or sympathetic. May I remind everyone that listing is so very important, plays a central role and yet pays no heed to counsel or counsel’s clerk. If the future is to be positive, there needs to be engagement and counsel’s availability needs to be treated as a priority.

This is so very important because collectively we all have such a lot to do in the coming months to help to get the criminal court back up and running.

Some of you will have read the HMCTS Recovery Plan published 1st July: The ambition is great and bluntly it needs our assistance.  A disenfranchised bar will not engage.
There were some phrases which have not gone unnoticed…

“judges will also be looking to list creatively and to stagger and extend sitting times, with the potential to start hearings at different times of day and to sit at weekends” 

What does this mean?

EXTENDED HOURS DISCUSSION – YOU WILL BE CONSULTED:

There was an extended hours meeting on Friday.

Absolutely nothing was set in stone, no decisions were taken, and we will come back to you, if there is any alteration in our ordinary working day, you will be consulted, as this is far too important. This will not be something done behind closed doors.

Our priority is to deliver an increase within the ordinary working day, but our survey was clear, , no to working outside normal hours in the week and no to weekends.  There are many factors that make this an enormous challenge for HMCTS, the Prison service, those who support probation, those who support victims, HMCTS staff, Solicitors, CPS staff. So, you can imagine that this is not easy in any event and certainly is not going to be made any easier by expecting a bar to cooperate when it has thus far received very little and is treated as if it is just an irrelevance. There are huge issues surrounding the day to day practicalities of being at the criminal bar. We are “key” and that means we are part of the plan.

‘Creative’ listing needs our help and we will give it, if there is a reciprocity as regards our needs.

Jury trials are an essential feature of our justice system and so we need more buildings from which to conduct trials and I did warn in December 2019 the folly of closing buildings such as Blackfriars. What a mistake that was then, sold off to the highest bidder under the pretext of reinvesting monies into improving the delivery of court services to users. The irony is this building was the sort of building we needed and need now. It was fit for purpose. Shame those who held the purse strings did not see that.

So, nothing decided, and you will be consulted.

DON’T FORGET:

Q and A on Thursday 9th July at 4pm with Susan Acland Hood, Head of HMCTS.

Send your questions and book your place.

MULTI- HANDED TRIALS GROUP:

And issue that we are all facing is that surrounding the multi trials and the lack of listing at the moment. The group met for the first time on Thursday and a number of items were actioned but essential piece of information here is that this is not a highlighted topic and is being looked into. As soon as we can report further, we will.

TESTING OF SCREENS FOR JURIES:

There is in Leeds this coming week, the testing of Perspex shields which will be deployed between members of the jury and if necessary, in certain areas of the court. This is all part of the drive to ensure that we can maximise existing court space that we have. As a solution it has to be tested and of course it will have to be given the all clear from PHE. Let’s hope that it works and as soon as we have any news on that we will report back

COURT OF APPEAL:

I was invited to a virtual tour of the court. I was able to view remotely a number of hearings in a long list before Lord Justice Fulford Vice-President of the Court of Appeal (Criminal Division)

He was present in court and the two “wingers” appeared by remote. In the first two hearings, all parties appeared remotely save and except Lord Justice Fulford who in order to satisfy the rules has to appear in court. There were the usual glitches that we have all become used to, with the link not operating and the prisoner being taken back to his cell at the wrong moment but other than the extra length of time that such a hearing necessarily takes because it is being conducted remotely it was business as usual. I felt a little sorry for counsel who was appearing in person as he was sat waiting in the court from about 10am but due to the said glitches wasn’t actually reached until 2 pm! The appeal court has kept up with a deal of work and it is hoped that this will continue. Certainly, the building looked clean and was thoroughly engaged with signage.

The appeals office is extremely cognisant of the difficulties that are being faced by counsel at the moment and I was told in terms that if counsel was going to have to travel a large distance then they could discuss with the office the possibility of appearing by remote. It was a refreshing and progressive attitude and one to be welcomed and supported during these very difficult times. I would like to thank all of the staff who made the virtual visit so effective and thoroughly worthwhile.

MOCK TRIAL – INNER LONDON:

Jurors are required for mock trial taking place at Inner London Crown Court tomorrow, Tuesday 7th July.  If you would be interested in attending this in-person mock trial at Inner, please let us know here.

SAVING ACCESS THE JUSTICE:

The Shadow Justice Minister; Karl Turner MP has drafted this report.

FURTHER Q&A:.

I have been invited to a Q&A arranged by the Junior Junior Group for Tuesday 7th July at 17.00.  Mark Fenhalls QC; SEC Leader and Katherine Duncan; Leader of the YBC will also be panel members. Please contact the group should you wish to join.

FILM OF THE WEEK:

IT’S A MAD, MAD, MAD, MAD WORLD  A 1963 American comedy, with Phil Silvers. Yes, its old and you probably have never heard of it but you have to admit it’s a great title, some may comment that its quite apt!

Stay safe,  onwards and upwards