‘Monday’ Message 16.06.20

CPS FEES:

Things never happen until after the usual time that the Monday message should go out but I purposely delayed today’s message because I knew we had a meeting with the CPS yesterday at 4:30pm and I am pleased to be able to report that we have made progress and it is progress that is going to mean that we can claim for fees in respect of S28 cases and have a fresh reinvigorated approach to cases that are treated as “cracks”

S28 hearings
Dealing with S28, what this means in a nutshell, is that you will be able to claim for your S28 daily trial hearing fee as soon as you have completed it rather than having to wait until the substantive trial had concluded. This was not previously part of the package of cases where that was possible. So, dependent upon whether it is a Cat D or J case you can claim either £480 or £520 per day that the case is listed for a section 28 hearing. In addition, you are able to claim the £500 upfront COVID-19 payment, which if you were to keep hold of the brief in a one day case would take it up to just short of the trial fee in Cat D cases.

Do not forget that the £500 is recoverable from you if you do not keep the brief. The choice is yours but the most important thing here is that you can claim for work done. This is particularly important as we are pushing together with HMCTS to drive up the number of S28 hearings across the board. For once it is as if there was some joined up thinking!

CRACKED TRIALS:

The advent of COVID-19 has meant that the trigger point under the guidance for cases which are subsequently treated as a cracked trial has just fallen by the wayside. Current practice is different in each court simply by necessity and this has led to arraignment not taking place and cases going off for trial or not guilty pleas being entered with no fixed trial date. Whatever the situation be, it has not made things easy for people to follow why it is that a trial should be treated as cracked. We have been in discussion with the CPS and it is fair to say that they have maintained an open mind about many of the issues which we have raised with them and cracked trial complication is one of them.

Again, in a nutshell if there is a comprehensive note on the HRS form setting out the circumstances of the case and the CPS will begin to look at a range of factors which when considered will mean that a case will be paid as cracked. We have been looking at the guidance and it will be published later this week or early next week but we are confident after having been in those discussions that the CPS is very much alive the problem is that the bar is facing and is doing all within its power to assist. The guidance will set out very clearly what information should be recorded on the HRS. The important thing for you as a practitioner will be to ensure that on your HRS form there is sufficient detail to enable that payment to be triggered.

The approach to this area of claim is one that can be complicated and so the CPS together with we are going to review exactly how this is going in six weeks. Quite simply this is because there is a will to ensure that genuine payments should be made.

Both of the above will go live in terms of receiving claims from next week. Keep an eye out for the guidance.

There maybe those amongst you who think that the above is of little consequence but if I may just take a moment to say that this has taken some effort and thought so that various MOG documents have not had to be altered. A large cohort of people have worked very hard to ensure that there has been a change. We are very grateful to the CPS team led by Chris Sharp, who have sought to be helpful at every turn.

I just touched on an increase in the number of section 28 hearings. That is very much something that we are hoping to progress and again we would like to thank Helen Measures, HMCTS who is leading that working party.

THE BACKLOG:

Are we sitting comfortably, then I will begin…

The latest stats place the case backlog on 24th May 2020 as 40,526. Receipts into the Crown Court are down, and we know that there have been no trials through April and into May. Anyone who thinks that the news that trials are recommencing is something from which they can take comfort, needs to think again.

The Crown Courts are almost in aspic and that is not for the want of trying but the reality is that all of this is just scratching the surface.

At this juncture we need solutions, but I am putting a warning shot across the bows of those who think that they can just pick up the Criminal bar and its practitioners and drop them when it suits. We are not to be trifled with or treated with any less respect than any other key worker profession and yet that is exactly how we do feel; disregarded, largely ignored and undervalued. Thus far the criminal bar has had very little from the government by way of support. Anything we have managed to do by speeding up payment of fees due, is not new money in to support us. The savings of daily refresher fees must be enormous and yet nothing for us.
Some may say well we are where we are, but just remind yourself of the following

Between 2010 and 2019,

• 162 magistrates’ courts have closed, out of 323,
• 90 county courts have closed, out of 240,
• 18 dedicated tribunal buildings have closed, out of 83,
• 17 family courts have closed, out of 185,
• 8 crown courts have closed, out of 92.

And don’t get me started on sitting days. Thus, it must have come as a complete surprise when the analysis especially with COVID-19, demonstrated a court estate that is on its knees and stretched to capacity and now has an increasing backlog.

ABSENCE OF POLITICAL WILL TO INVEST:

The solution as ever is invest.

Why is there no political will to do this?

Are we really serious when we say that the solution to what is financial obduracy is to get rid of juries? To just throw the bath water out with the baby. What point of principle are we addressing by doing that?

We need to consider other solutions, but the answer is not simply to get rid of juries and substitute either a single judge or a panel of judges. We need buildings in which we can conduct our trials, socially distanced, at whatever the government says is medically or economically expedient. We need more sitting days and at maximum capacity. Stop the tinkering and just for once do the right thing.

ADDITIONAL COURT CAPACITY:

There is a group now looking at additional court capacity, it comprises of HMCTS, Circuit Leaders, Bar Council and CBA; over 40 members.  So, it is a serious issue, but it needs serious support.  We have to consider additional buildings carefully, where they are located, are they close to a Crown Court that is already open there are many factors but do not get rid of juries.

Credit where credit is due and fair play to “Justice” the organisation who have been involved in mock trials, where a series of mock trials have been conducted. Firstly, the jury was entirely remote, sitting in their own home (never going to be a runner) through to the trial which was conducted on Friday 12th of June, which involved twelve jurors participating from a hall local to them and within walking distances of their homes observing social distancing and a ‘defendant’ appearing from HMP Leeds.

The feedback from that particular trial and the way it was operated has anecdotally been positive. Is there a way in which that can be adapted? Should the defendant always be in the room? Is it suitable for trial either way? All of this needs careful thought. We are not advocating anything, but what we are supportive of is the thinking outside of the box with the central safeguards of ensuring trial by jury, delivered in a fair way so that justice not only can be seen to be done but is done.

But whatever we do, we cannot get rid of juries.

So, what is the warning shot?

Flexible operating hours
Be very careful about this please. This as a concept has previously been balloted upon and rejected and rejected for very good reason in the criminal courts. Weekend hours on top of a longer working day. Just when are we supposed to prepare our cases? It is highly discriminatory and divisive.

FOH was by way of reminder, abandoned as part of the settlement following action by the Criminal Bar and this is none other than a back – door effort to bring it back in. It is pretty low really to suggest that the backlog which we know is a pre COVID-19 issue and practically has nothing to do with COVID-19 is in fact due to COVID-19. What we are facing is a culmination of mismanagement and years of starving the system of investment. We are not blind. Do not seek to justify FOH by saying COVID-19 has caused it. COVID-19 makes the problem created by others more of a challenge and the answer as always is invest.

We know that in Manchester and Brentford there has been a pilot on flexible hours carried out in respect of civil and family. That pilot concluded at the end of May and yet we’ve not been able to see, despite asking for it, any interim report never mind the full report. I will be candid with you, being fobbed off with ridiculous answers as to why the report it is either not ready or is not capable of being shared, will not wash. Every blog post I have seen on the above pilots has reported very much in the negative. It will be interesting to see precisely what the final report says. It does seem a little surprising that such a report is not available even in a shortened form. This would be a seriously retrograde step. I am saying no more at this juncture, other than you have been warned. Do not treat the bar as if it does not exist and is a disposable commodity. People say you don’t know what you’ve got until it’s gone. The truth is, you knew what you had, you just never thought you’d lose it. Do not take us for granted.

MAGISTRATES:

Can practitioners please ask for the risk assessments etc and let us know if you have problems. Further, can we also ask you inform us if you have any difficulties getting hold of the admin staff at HMCTS to organise video / telephone hearings for first appearances / case management stuff etc in advance of listing. We are told that they check every email and clear them every day……not so sure that is the case so the more examples we have the better.

SOUTHWARK CROWN COURT – INNER LONDON:

Southwark is scheduled to re-open on 23rd June.  Trials (single) will start on 6th July.

On Wednesday 17th June 2020 at 4.30 a Skype Users meeting will be held to update Counsel, Solicitors and other agencies on the steps taken to prepare the court, plans for re-starting trials, and what is expected from users, with a Q&A. Mr Justice Edis may be online.

Anyone wishing to attend should send their email address to [email protected]

Our thanks go to the Resident, HHJ Taylor who is keen that practitioners understand what has been done.

It is refreshing to note the efforts of the judiciary to engage with us in this time and our thanks also go to HHJ Karu of Inner London Crown Court who with the staff allowed, James Mulholland QC, Mark Fenhalls QC and myself to look at the proposed trial court rooms. We hope that the sign off for the building comes sooner rather than later. Again, a lot of hard work

CLAR:

Just a brief update. The deadline is now the 17th June 2020 and we are looking forward to addressing Clar 2.

CPS REVIEW:

We also have the CPS review coming up and as and when and how that progresses we will keep you updated

So, keep going. We have meeting after meeting, and we are doing all we can to ensure we are here not only next week but for many months to come, if not years.

Please keep your ideas coming in. We do not ignore them.

FILM OF THE WEEK:

The THIN RED LINE

Stay safe,  onwards and upwards