Monday Message 12.10.20

Chair’s Update:
James Mulholland QC

Last week criminal lawyers were the subject of criticism by the Prime Minister in which he asserted that it was they who had caused the system to have become ‘hamstrung’. It appears that he is one of the few who continues to fail to appreciate the causes of the crisis in the criminal justice system. It is necessary to repeat the message. A decade of cuts to the rates set for legal aid and lack of investment means that it is the government which has strung itself up with a backlog of cases at their highest point for 5 years, charging rates at an all-time low of 7%, less than half the rate 5 years ago, whilst police reported crime levels are at all-time highs. Meanwhile, restrictions on court sitting days, imposed for cost saving reasons, ensured that all involved in a trial in 2019 had to wait an average 30% longer than ten years ago for it to conclude.  During the same period, the government sold off 41% of the criminal court estate for profit.

Barristers and solicitors have been leaving criminal work behind for several years and such comments will only increase the speed of their departure. This will leave even fewer lawyers to prosecute and defend to deal with a cataclysmic backlog of despair or to help the government in its overarching duty to protect the public from harm. Such comments undermine all victims waiting in anguish, for years for their trial to be heard and they attack the most vulnerable in our society who rely on a lawyer to be their voice and to argue their case.

The latest state of delay with regard to “outstanding cases” was published on Thursday with the Crown Court backlog at the end of August 2020 reaching 47,245 and heading towards 50,000 bearing in mind the number of cases concluded was less than the number of new cases coming into the Crown Court in June, July and August and the gap between them appears to be widening.

Even if the Government fails to pay attention to data from the MOJ, perhaps the Prime Minister would listen to two different judicial voices who have spoken out recently about the crisis. Earlier this autumn, HHJ Peter Ross talked to the Oxford Mail before his final sitting day. He told the paper:

“the justice system he was leaving behind was facing a ‘tremendous backlog’ which could not be blamed solely on Covid 19. He called the closures of some magistrates’ courts in recent years ‘madness.’ He said the MOJ had been hit hard by budget cuts and that ‘there isn’t sufficient value placed upon our system of justice.’ He added: “I would like the public to wake up to the situation and start tackling their politicians about it.” 

On Friday, the Lord Chief Justice gave an important speech to the Legal Wales conference. He repeated that the backlogs, particularly those in the last two financial years, could have been avoided and confirmed that such limitations will not be an issue in this financial year in any jurisdiction. He continued:

“[a] well-functioning justice system in all its aspects is vital to the well-being of the nation and society as a whole. It underpins business and commerce and is a driver of foreign investment in the United Kingdom. It needs to be properly resourced. In determining funding for the future, the starting point must be a realistic projection of anticipated work, including to recover the consequences of Covid together with an understanding of accumulated neglect, for example, of the estate. It must take account of the impact of our new relationship with the European Union and the need to ensure that our justice system keeps pace with developments occurring elsewhere in the world”.

The Prime Minister would do well to pay heed to both these messages.

We need an additional 54 nightingale court rooms exclusively for criminal trials to tackle a Crown Court case backlog that has grown out of control.  To have only six of these courts is disrespectful to all within the justice system including victims of crime and their families and the thousands of defendants held in custody, well beyond the original time limits, waiting for a trial where many will be found not guilty.

Last Friday, Birmingham Crown Court noted on its daily list update that 15 trials, all due to commence in the week of Monday 12th October, had lost their allotted trial slots and new dates had been set either eight or nine months away in June and July 2021. The notice read: “ORIGINALLY LISTED W/C 12.10.20- TRIALS RE-FIXED BY JUDICIAL ORDER ON 8.10.20 (SEE DCS SECTION X)” and below each trial the following “TRIAL VACATED- RE-FIXED” with dates ranging from 7th June 2021 to 21st July 2021. It is likely that the dates for trial in these cases were set many months before in relation to allegations even longer ago. To add even more delay will undoubtedly cause further trauma to complainants and defendants alike.

A review of listings at all available Crown Court rooms across England and Wales for Friday and today provides further evidence of what is happening. In this two day period, ten applications to extend custody time limits are listed including for youths.

If the government was truly serious about upholding law and order it would provide the monies required now to repair the disorder wrought by its own underfunding.

EoH Pilot Scheme:

Whilst the Liverpool pilot ended several weeks ago, those in other courts remain ongoing. A meeting is currently planned with HMCTS to discuss the position later this week. In the interim, it is essential that everyone who is instructed in a case in one of these courtrooms continues to complete the CBA Questionnaire.

Disclosure:

A Revised Edition of the Attorney General’s Disclosure Guidelines has now been published. It will come into force at the end of the year.

Bursaries:

The CBA Bursary is now live. Major Bursaries of up to £5,000 will be awarded to successful applicants.  The award competition is open to members of the CBA under 7 years’ call. The fund is designed to assist practising barristers from financially disadvantaged backgrounds. Please complete the application form and return it, together with a reference from the applicant’s Head of Chambers, to the CBA Administrator by Monday 7th December 2020.

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