Monday Message 13.07.20

IT WILL BE THE PROFESSION THAT DECIDES WHAT IT WILL DO

Much is being said at the moment about change in our working hours. As a profession we have rejected flexible operating hours previously.

We want to be clear, the excuse that has become Covid-19 does not mean that the bar will simply roll over and cooperate with the aspirations of HMCTS.

For those of you who attended the Q and A on 9th July 2020, you know that HMCTS has an aspiration to maximise disposals, reduce delays for victims, witnesses and defendants and increase the flow of work to the Crown Court. To do that they need to maximise available capacity. We know social distancing requirements have reduced the number and capacity of court rooms.  The issue that raised its ugly head was that of an alteration to hours

YOU ARE AND WILL BE THE MASTERS OF YOUR DESTINY:

We have long borne the brunt of ill judged, ill -considered and cheaply delivered schemes.

Those of you who think that things are being done in secret are wrong. You will decide, if there is indeed anything to decide whether you will do it.

I made it plain at the end of the Q and A session on 9th July 2020, and those who attended heard me say it, that the profession would be the arbiters on this point.

The CBA is sitting at the table on many committees that are seeking to ensure that all options are considered so as to maximise the sitting of the court estate, including the one led by HHJ Menary QC which is looking at working hours.

Some will say, why are we at the meetings at all? We have to be. At a time when the criminal justice system has been turned on its head, things are being pushed through and we cannot be sidestepped or surprised. We need to be there so that you can be told what is being considered. We have to be there, to hear what is being said. We are duty bound to be part of those discussions.

Let us be absolutely clear. Nothing has been decided on any issue surrounding the toxic topic of our hours. There have only been 2 meetings thus far with over 40 attendees at each, because there are many parties across the court estate, the prison estate, victims and witness support, probation, CPS, MOJ, police, HMCTS, PECS, Law society, CL’s and ourselves, from the Justice system.

TRANSPARENCY:

Attached here, are two models that are being looked at in respect of the crown court. They are both out with our normal court day.

Each model runs a morning session and an afternoon session. Ie running two trials concurrently from every available Crown Court room suitable for jury trials by operating two lists. The gap in lunch allows the cleaners in, if the same court is going to be used.

• OPTION A – morning session 9:00 – 13:00 Afternoon session (different trial) 14:00 – 18:00

• OPTION B – morning session 09:30 -13:00 Afternoon session (different trial)13:30 – 16:30/17:00

THESE ARE ONLY MODELS NOT PROPOSALS:

On Wednesday 15th July there will be a “desk top exercise”, at Liverpool Crown Court. This is an initiative of the local court and consequently we have asked to have a representative present. Louise Oakley will be attending to understand what exactly is being planned.

The overarching aim is to see to see if it is possible to achieve the attendance of any of the relevant parties at their appointed times.

These options apply to Monday to Friday only.

Weekends are not contemplated and are off the table.

This may all fail. It was a disaster before and may never be a reality, but we asked specifically that this information be shared as there is much talk on social media not based on fact. We were clear from the beginning on this topic, that you would be kept informed as to what is going on.

SET OUT BELOW ARE SOME VERY IMPORTANT OBSERVATIONS AROUND THIS TOPIC

THE BURDEN OF COUNSEL:

It is rather disappointing but a very large group of individuals who are involved in this have no idea what counsel have to do to get a trial up and running in normal circumstances.

Presently a barrister’s working day during trial is 10 am – 4:30 pm. This is a considerable alteration to the long -established work and practice of a criminal barrister. This takes no account of the amount of preparatory work done both as general case preparation and also that which needs to be addressed during the trial. If defending, it includes conferences with the client before and after court; if prosecuting, meeting with witnesses and debriefing officers and CPS at the close of play.

Add in the following:

• An extra early start to work. We are aware some already travel over 2 hours to court and no overnight accommodation allowance means that it has to be travel on the day
• Additional clerking costs, relating to their hours and extra costs if the day is lengthened
• extra childcare costs to cover irregular hours.
• We already spend over 2 hours a day drafting admissions and schedules that are being sought by the Judiciary so that a Covid 19 trial can be run safely
• Additional extra written work to address Covid 19 in the preparatory stages of trial, as ghosted in without remuneration.

All of the above are extra costs and burdens carried by us.

Further, we have no confidence that the doors of the courts will be open so that we can meet our clients an hour before each trial day, let alone that they will be there on time.

DIVERSITY/ DISCRIMINATION:

The Extended Hours approach contemplated by HMCTS ignores a community of practitioners who simply cannot manage travel arrangements, leaving at unsociable hours and who cannot afford childcare. Women at the bar have had to fight long and hard to gain a foot hold when it comes to a serious criminal practice and here there is a real danger that they will be forced backwards due to the listing measures that this clearly represents.

Which leads to the following very clear statement of intent:

If YOU WANT US YOU WILL HAVE TO PAY FOR US AND ONLY IF IT IS GOOD ENOUGH WILL WE BALLOT THE PROFESSION ON THIS

Funding: It is right that we, like the solicitors are speaking with MOJ and soon to addressed, the CPS on this issue. MOJ has the ability to finance this particularly given the paucity of trials in the recent months. The savings have been considerable. It will be a fundamental requirement that the fees for such work are significantly enhanced and beyond. We cannot emphasise this enough. If they don’t want to fund this in a significant way, we will not come back to you. We are not bluffing. We will not support extended hours coming through the backdoor.

There needs to be significant investment, across the board, not pennies, not promises, but  significant funding now, if we are even to begin to consider anything like this.

Remember in all of this, without us, without the bar, nothing can be achieved. There can be as many government aspirations as you want, but if we say NO, then that is an end of it.

We are aware of our duty, our duty to our clients, our duty as a citizen to get the criminal justice system back on its feet, to help do that and we have been helping since the off. We know we have a role to play, but there has to be regard for us and of course we have been complying with our duty for years.

I repeat the choice will ultimately be yours, but meanwhile we will inform you next week as to how the “desktop” exercise went.

MAGISTRATES COURT:

There are meetings ongoing in respect of Magistrates Court and their working day and undoubtedly this is influenced all the more by our fellow profession of solicitors. In some instances, the solicitors have agreed to Saturday working which of course we do not.

A number of issues were raised on Friday which in our view required a greater input from solicitors, so we suggested that there needed to be additional consultees, not least of which included the CSLA, chaired by Bill Waddington, but also Kerry Hudson of London Criminal Courts Solicitors Association. Both sides of the profession need to be there.

Q and A:

We hope that you found the meeting with HMCTS useful and productive. Whilst we did not always hear what we wanted to it was an excellent opportunity to ask questions and Susan Acland-Hood has said she will return. So, a thank you to both her and her team:

• Kevin Sadler, Operations Director and Deputy CEO
• Andrew Baigent, Finance Director
• Marie-Claire, Strategy & Change Director
• Helen Measures, Deputy Director of Crime
• Tom Ring, Deputy Director of Legal Operations

Thank you and see you next time.

 SITTING PROTOCOLS:

We are ensuring that the Senior Presiding Judge is aware of the difficulties we are encountering on the ground and we will get back to you as soon as we have news.

AND YET MORE:

In plain terms, this is not the only thing being looked at.

We have an urgent need for instance to get multi-handed trials going. That is a challenge. If you look at the time it took to get a one defendant trial going it is not simple.

We have to ensure that the jury box, configured from a time when social distancing did not matter, is adapted. I told you of the plan in Leeds for perspex dividers. Some fine tuning has been required and as you will know every court across the country is different. There is not a one stop shop and producing bespoke screens is not simple plus the sign off from PHE.

We have the senior judiciary, in the guise of Mrs. Justice McGowan attending at buildings across the country to check the progress and we are driving in the Edis group meetings to have a timetable, a good old fashioned schedule of works, so that we have an idea as to what courts are going to be able to be used. This is not done overnight.

SURVEY:

During the course of this week we will be surveying the profession on jury numbers.

I will leave you with the Film of the Week as suggested by our very own Aaron Dolan,
Shirley Valentine. Not sure to whom he was referring!!

So read about the options above please and get ready for the jury survey

Stay safe,  onwards and upward