Monday Message 11.05.20

IT IS NOT BUSINESS AS USUAL, ONLY GREEN SHOOTS – TRIALS:

Today we have seen announcements from the Lord Chief Justice and The Lord Chancellor, setting out that there will be a very considered and manged return to trials.

The announcement made by the Lord Chancellor relates to an extremely limited number of cases at two court centres beginning on the 18th May 2020. The Lord Chief Justice also noted that these would only recommence with “special arrangements to maintain the safety of all participants and the jury in line with Public Health England and Public Health Wales guidelines.“

The CBA is working hard to achieve further clarity for the profession. We will ask for a published timetable to outline our to return to work (where safe and feasible).

Initially those two court centres will be: The Bailey and Cardiff, where the measures which have been approved by PHE and PHW have been put into practice.

This process is in its infancy. For those of you who believe we are rushing back to trials, please put that out of your minds. This will be a slow and cautious start.

Be under no illusion this is not a return to trials à la pre-Covid 19.

So, we are all waiting to see how this develops in practice. Any consideration of the number of cases going through the Crown Court on an annual basis, some 107,000 makes us all comprehend what a task this is going to be. It is not easy to predict how many trials, will in due course be up and running, but rest assured we will be monitoring the position. Safety has to be the number one priority, but we also understand the constraints on all counsel and the tough road ahead.

CLARITY REQUIRED:

I have today asked that consideration must be given to providing the profession with some sort of timetable that addresses the future role out of not only trials but other types of hearings.

We need to have published:

• The identities of the initial court centres
• The protocol to be applied to cases so that they can be considered as suitable for trial
• Do custody cases take priority?
• What engagement in this process is counsel expected to participate in?
• Are arrangements going to be made in advance for counsel to attend buildings so that they know what they face?

It is only right that at some stage we are told of where other trials are to be held.

Other issues to consider include, that those in custody may not have had a chance for a recent conference. This is not always easy. Being diligent practitioners means we have to prepare  batting orders, jury bundles, it cannot be done at the drop of a hat.

As soon as we ourselves have an update, we will inform you. We really do press those in charge of this to provide us with more information We cannot operate in this vacuum. The delivery of justice must be done openly. We need communication.

OTHER HEARINGS NOT TRIALS – WHAT ABOUT THOSE?

Whilst a number of Crown Courts have remained open, the general approach has been to ensure that as many hearings are conducted as remotely as possible. We also have in mind the most recent government pronouncement from the Prime Minister on Sunday evening. In England, some very limited aspects of lockdown were varied but because of the finely balanced position that we find ourselves in, it will be subject to continual review. The bottom line is that if you can do your job at home then you must continue to do so.  We recommend that you actively engage with your local court to press the point of dealing with hearings remotely. Any in–person attendance whatever the precautions increases the risk of what can be a fatal disease.

We take the view that unless a hearing is urgent then those hearings should remain as they have previously been conducted ie remotely. If that is not the case, then we would wish to see some information provided to the profession as a single voice, with a clear message. This avoids confusion, anxiety and worry. This is a stressful time for all.

We know the Judiciary and HMCTS do not wish to compromise the position of anyone’s wellbeing.
Good communication costs nothing. As key workers we must be kept informed so that we can make informed decisions.

Of course, individual hearings may require the professional attendance of counsel, but there needs to be clear and unambiguous messaging to counsel so that everyone can understand what is going on. We need notice in advance. We may have individuals within our families who are shielded, are vulnerable and that may affect our ability to work, when if in fact a hearing was conducted remotely, counsel could still maintain ownership of the case.

Again, we are asking for clarity as to when and how that change will be communicated to us all so that there is one consistent message.

CLEANLINESS OF COURTS – THE “IT LOOKS CLEAN TO ME APPROACH IS NOT ACCEPTABLE”

I know that on Thursday of last week, there was much anxiety about Leeds Crown Court and what was going on with the listing of cases. I had the opportunity of speaking with the Senior Presiding Judge, Lady Justice Thirlwall and the Recorder of Leeds. The safety of everyone was and is of paramount consideration. The Recorder was deeply concerned about people feeling safe within the court building. There has been a highly considered plan to accommodate the flow and footfall of people in that building with social distancing allowed for.

That issue then prompted a long call with Susan Acland-Hood as to what has been achieved within Crown Court buildings generally during this period. From my own experience with those members of HMCTS on the Edis group, the attention to detail has been considerable.

For my part when on the call I made it plain that we needed to know exactly how these buildings were being signed off. To be clear, I will not be encouraging anyone into buildings where standards are not met, we know that in the magistrate’s court, despite the best efforts of everyone there have been problems. These we accept can be teething problems but what we need to know, is that no stone has been left unturned. That is why I need you to fill in the safety questionnaire. To be fair to Susan Acland–Hood, she very much had the point and she informed me of a very thorough approach. There has clearly been a process followed as to the cleaning of the buildings and how they are managed. Because this is such an important matter, we are having additional meetings this week, with Susan and her team so that this process can be better understood. We need to understand very clearly what has gone on and why the buildings are in fact safe and clean. Again, in order to help she will be forwarding to me the protocols that have been utilised.  We will update you as soon as we can on those and the meetings. Again, good communication costs nothing. It removes the need for anxiety, stress and concern.

OTHER MATTERS.
FEES:

We continue to engage with MOJ in respect of claims for special preparation and wasted prep.

Section 28 hearings: Under AGFS a s.28 hearing qualifies as day one of trial regardless of post hearing outcome (e.g. guilty plea or PONE).  The position is different with CPS fees where a trial fee is only triggered once a jury is sworn.

We have a meeting with Cps this week, which will address how we are to be remunerated for section 28 hearings and we look forward to speaking with Chris Sharp about this on Wednesday.

PTPH: There are a number of PTPHs in which owing to the current circumstances, a defendant has been unable to enter a plea.  The LAA have confirmed their position – a written indication of a Not Guilty plea is sufficient to trigger a cracked trial payment in circumstances where a guilty plea is subsequently entered; however if no plea is taken at all or indicated then the case would not meet the criteria for a cracked trial. This is to our mind unsatisfactory and we are in continuing discussions on this point and also determination of the relevant third.

MEETINGS.
EDIS COMMITTEE:

There is an additional and very welcome further meeting of the EDIS committee on 12th May to consider the lengthy document that the CBA prepared as a protocol for the courts.

PARLIAMENT:

Last week I had an excellent meeting with David Lammy MP, Shadow Lord Chancellor and Shadow Secretary of State for Justice together with Karl Turner MP. They certainly understood the present difficulties which we face, together with the problems of taking matters forward.  On behalf of the CBA I can certainly say it was a meeting which was well worth it, and we are hoping to engage in a wider dialogue with them. It is important to remember that the CBA is there to protect not only the values of the criminal justice system as an entity, but also to ensure that as a profession we represent a broad and diverse profession representative of the country we live in.

Likewise, I am due this week to speak with Alex Chalk MP. Perhaps he can throw some light on why there is a total lack of understanding as to the difference between the publicly funded bar and the private bar?

In addition, I am looking forward to speaking with Sir Robert Neil MP, Chair of the Justice Select Committee. He has been a champion of access to justice for many years. He too understands the problems we face.

But the real challenge for us is connecting with those individuals who would not ordinarily feel that the Criminal bar is a topic worth talking about. There needs to be a cross party approach to educating those, particularly in Treasury as to why we are good value and provide a first-class service. If we don’t have support, the basic infrastructure of the Bar will fail.

Please take the opportunity to sign off the Bar Council Letter to your MP.

SURVEY:

Thank you to all of you who took the time to fill in the survey it has produced some very interesting results which are being collated and which will be fed into our future discussions. We will post the results. Without doubt, Covid 19 appears to have had a negative impact on junior women at the bar. We must reverse this.

FILM OF THE WEEK:

Sometimes it’s a difficult choice and sometimes it is not. It has to be something funny this week, it’s not old but it creates a laugh “The Heat”. Melissa McCarthy is brilliant. I wonder if that’s how all police officers behave?

Stay safe and onwards and upwards