‘Monday’ Message 26.05.20

THE LONG BREATH BEFORE THE PLUNGE:

We are all waiting to emerge from this twilight world, so that we can begin some semblance of normality, but what will the new norm look like? We can only speculate. We look to the Coronavirus update to see what is happening with the R rate, as we all want to see a relaxation of the lockdown rules. There is not one aspect of our lives that has been touched by this appalling disease yet the business of the courts in a very amended way has managed to keep going.

If we look at the system as a whole, it takes a vast army of people to manage the criminal justice system. A basic example is that of the DCS system; whilst we have been at home and undergoing reviews of our cases, those responsible for uploading the material onto the DCS and subsequently managing that data have often been into the very buildings that we have not been attending. Much has been done remotely, but there have been people going in and out of the staffed court buildings even though they’re not open to the general public.

We know that HMCTS had swathes of staff who were not well enough to work and that was what necessitated in part the tiering of the courts, being open, staffed or closed etc but we are now emerging from that as HMCTS staff levels begin to increase.

THE MOVE TO TRIALS AND THE STATE OF THE BUILDINGS
A BIRDSEYE VIEW: 

We like the rest of the nation are beginning to test a new norm.

We have a vast array of preliminary hearings conducted both on paper and remotely, courts are beginning to develop local protocols but the real business of the criminal bar is conducted in court rooms and a crucial issue is that of trials.

The CBA has been part of the EDIS committee, a committee led by Mr Justice Edis, designed to look at the process of returning the court estate to trials. There are over many members of this, from CPS, PECS, Probation, HMCTS, PHE and PHW etc. It is a complicated jigsaw, with many constituent parts, that we take for granted, but when one is putting the whole thing back together and in very different circumstances, it does take some time.However to be candid, I was concerned that, what we might end up with was the usual, ie  lots of talk, some flow charts with well-meaning aims but not much application. The messages we have been inundated with over the last two months have revolved around taking care with social distancing, washing hands regularly, keeping surfaces clean. Hygiene being central, basic and yet critical. My recollection of the court estate was of dirty courts, broken seats, waste bins left over flowing, unkempt poorly cleaned and frankly unloved neglected buildings, just like the criminal justice system, all reflecting how low down the scale we really had fallen, the pariah of the constitutional makeup of our nation.

Because of that, I decided to visit a number of court centres to see what was going on, to see whether what we have been discussing had been implemented on the ground. Were the buildings clean, were the processes as discussed for, jurors, witnesses, exhibit bundles, counsel, 2m distance etc in place, was there adequate signage, were the protocols being adhered to and was there any sanitizer? Had this been delivered in any way and if so, was it consistent?

I have been to Newcastle, Leeds, Old Bailey, Cardiff, Bristol, Warwick and Minshull street, I plan to visit more. I have been a mystery shopper at some courts and at others I have been taken round. From the custody suite arrangements for conference, to the marking out with gaffer tape, the buildings look and feel very different. There are marshalls on stairs, ensuring people keep to a one way system. If you have not done so already, go onto the CBA twitter page and you can see the links through to the trial courts, where newscasters have been in to look at the unusual configurations of some of the court settings. Your court centre in future may operate in such a way, I suggest that when trials are operating in your court centre, you just take 5 mins to go across, to check what it is you are going to find. HMCTS are presently preparing a video clip to deal with some of the changes – Wood Green Crown Court Video.

NO KIDDING:

Let us not kid ourselves. Treasury has not given HMCTS a huge bag of gold and said go and put right all of the wrongs that have been forced upon you over the last 10 years, no one has provided a rebuild and regeneration scheme, but the men and women who have sought to implement the stringent requirements set by the Edis committee, have in my humble opinion really tried against the odds and in a very short time frame. The effort by the staff has been nothing short of impressive.

As to the court lay out, the thought that has gone into where counsel is to sit, sometimes in the jury box with prosecuting counsel addressing the court from the witness box or where jurors are to sit, sometimes literally in the round is ingenious. Lines of site have been maintained and that has been overseen and approved. Such has been the care taken, that during pre- trial run throughs, it has been determined who is and who is not essential to be in court, so in Minshull street when the jury is being selected some parts of the legal team will be outside during that process and then return, so as to enable social distancing to take place at all times. We are going to have to be flexible but of course ensuring at all times that the process is fair to the defendant, as after all this is a trial process. At the Bailey, where one trial is dealing with six defendants, if evidence is not directly touching on a defendant, then a legal team may use a second overflow court where the proceedings from the main trial are being streamed. This is happening  in another court centre, eg Southwark, where the trial is being conducted there  but the arrangements for the public and press are being streamed to the Bailey.

JURY ARRANGEMENTS:

Arrangements for jurors, may in your court centre, be very different. At the Bailey, an area immediately in front of the doors to the court, in this case court 16 had been cordoned off, so as to limit the walk through the building before being called in court. They have separate break out court rooms to use in all trial locations. I thought I would recount to you what I saw in one court centre, Warwick Crown Court, because the precision with which this had been approached was really first class, was run with military precision and is indicative of the standard that is being applied by all court centres when it comes to managing a jury.

Upon approach to the court building there is signage on the floor and at the court entrance, indicating to members of the public where they are to go. On arrival they are taken one at a time through security in a socially distance way, trays used for property are immediately cleaned with sanitiser and the relevant questions as to illness are asked. Once they have stepped through the archway they are directed to a desk and asked, where they are going, e.g. court user or in this instance as a juror.

As a juror they are escorted through to the jury suite. This has been thoroughly cleaned with all extraneous papers, magazines removed. There is a front desk with a plastic screen for the jury manager, with signage on the floor as to where the juror is to stand so as to maintain social distancing whilst the initial checks are conducted. This includes checking ID which is done in a careful and managed way so as to avoid contamination. There is liberal sanitizer. That prospective juror is then directed to a table which is numbered, on that table is a hand sanitiser, a jury pack including the written notice, a pack of tissues, they will keep that.

The tables are 2 metres apart and there are markings on the floor and on the table as to where the chair is to line up, again so as to maintain social distancing. It is that managed. When they are called, they go through with the jury bailiff, in order and in a socially distanced way as this is marked on the floor, doors are propped open and they go into court, where they find if they will be part of a jury.

How they swear will have been determined before they arrive at the court. They may read the oath or affirm, and the words will be on a screen, to avoid the need for a card. They may have their own holy book. Each seat for the juror is marked with a number, they go and sit in their seat with a number. The route of travel is marked. That will be their seat. Those that are not chosen file off through another door. It is like clockwork. The staff are like a well oiled machine. The chosen jurors go into their breakout room which again has seats numbered with directions of travel taped out. Those seats are where the jurors will locate themselves when they are not in court. It is very clear.

I received a long and helpful email from defence counsel in the Cardiff case. The trial Judge The Honourable Mrs Justice McGowan, delivered a short homily at the start of the trial reassuring the jurors as to the steps that had taken place to safeguard them, so that they could essentially get on with their business without worry ie the listening to of the evidence. I am going to set out here in full because it is important that we all feel confident about the steps that had been taken in that court building:

Thank You, Alex Greenwood for this.

Alex view was “Certainly there has been rigorous adherence such that it feels far less fraught with chance encounters than a visit to the supermarket”

This will be happening up and down the country. This is your new norm.

Please send in your experiences of what happens on the ground.

I wish to thank HHJ Mark Lucraft QC, the Recorder of London, HHJ Potter at Minshull Street, HHJ Kearl QC at Leeds and HHJ Lockhart QC in Warwick, for the time and trouble that they took in allowing me into their buildings. Thank you to all of those who did not know I had attended. What I can say is that all of the staff I met and saw, had been working incredibly hard and were justifiably proud of the contribution that they had made to not only fighting COVID-19 but making our buildings safe.

For what it is worth, they were in my view justifiably proud of what they had achieved and in fact when I saw the dedication which had been applied by members of staff who had made additional signage to ensure the safety of others, I recognised not only their dedication but also the determination with which they were seeking to ensure that when the public use these buildings that they feel safe.

Of course, this is the initial roll out of a new improved cleaner crown court. We now need to maintain that as the norm and not the exception. Rest assured that we are seeking to ensure that is done. This must not become a one hit wonder. I did not receive my nickname, “shoe police” for nothing!

VEXED ISSUE – AIR FLOW:

An area of concern that arose because it did not appear to have been addressed in the risk assessments was that of adequate ventilation within the buildings. I am grateful for the emails on this and indeed we had already raised it. We have all experienced buildings which are either too hot or too cold. The airflow management within these buildings given the need for social distancing, was an issue which needed to be grappled with and I am grateful to the CBA team who put together a paper which was forwarded to HMCTS to raise concerns.

The net result of this was a further two meetings at which PHE and PHW attended together with engineers from HMCTS. As far as PHE and PHW are concerned this issue was factored in and when I spoke with one of the trial court judges he mentioned it to me. You may not know it, but I do now, that air flow is distinct from air conditioning.  Test me on filters, ducting and ball bearings!

I do not propose to rehearse each and every issue but what I do is attach a letter I received from Susan Acland-Hood that addresses those concerns. The CBA had a very productive meeting with Susan and her team on a number of issues and this was one of them. HMCTS assembled a team to answer questions and were very keen to ensure that we knew that they took this issue seriously.

The risk assessments for the courts which you will be able to access, address the airflow management system and therefore the managed risk is one that enables the courts to function. In addition, you will have seen last week’s press announcement from the judicial office which also addressed this point.

GOV.UK:

This web page is not always our first port of call in the morning, but it is on this site that you will find the updates for the COVID-19 and the approach to the management of buildings. The assessment tools for managers and how safety at a building is to be approached is there.

The risk assessment presently being updated, will be there along with a series of Q and A’s which will address the issue of airflow. I have had that confirmed from HMCTS.

There are a number of documents on that webpage.

The updated risk assessment will be there on Wednesday 28th May 2020 together with Q and A’s.  By way of example:

Please take the time to read these documents.

Each of the trials buildings and the wider estate are the subject of a number of checklists. You will be able to ask for the risk assessment and to see how it has been applied at the building you are in and if you need you can ask them to email a copy to you.

We will keep you updated as to the future managed roll out of other court centres.

COUNSELS ROBING ROOMS
SINNERS!

An area that needs to be grappled with is that of the state of the robing rooms. Some like Warwick, have nothing in and others are like, well you know what they are like and I confess now, I am a sinner. In the age where contact surfaces must be kept clean, they will have to be cleared out. May I ask local chambers to liaise with their local centres to address this please. Thank you.

WOULD I GO INTO COURT?

If someone were to ask me would I go into court and conduct a hearing. The answer would be yes.

This leads me to the CBA policy on support for practitioners. There will be those of you who because of medical reasons associated either with yourself or with people close to you who will not be able to attend court so easily. We will support you if you have difficulties. However there will need to be active case management with your local court to ensure that they know if there are difficulties.

I link my note of what I saw at the courts I visited.

RUMOUR:

There are a number of rumours going round that I would like to address, such as the need to extend sitting hours into the evening, and or weekends to clear the backlog of cases. To be clear this has not in any way been discussed or canvassed with the CBA. We would not support sitting into the evenings and/or weekends due to the disproportionate impact it would have on those with caring responsibilities. Any such extension of the ordinary hours of business would require greater consultation of the membership and we are confident that HMCTS and the judiciary would seek to consult rather than enforce.

MAGISTRATES COURT AND JUNIOR PRACTITIONERS:

As a result of the safety survey we received a number of significant and on- going complaints at the magistrates. This was on a national level and needs addressing not only now, but in the future, so as to ensure that this does not become systemic. We submitted a comprehensive list to HMCTS relaying the concerns.  As I alluded to above, we had a meeting with Susan Acland Hood. Our concerns had been taken by Paul Harris, HMCTS Director, Courts and Tribunals Operations who had reviewed the same and taken them on to the Delivery Director for each region. The nature of the complaints was not lost on HMCTS and every effort will be made to begin addressing them. PECS were also made aware of the problems in the cells and Sarah Gebbie, Deputy Director Central Operations will engage with PECS to address the issues.

In addition, we had a meeting on Friday 22nd May at 6pm with Emma Arbuthnot, Chief Magistrate. Clearly the anxieties and worries of the junior profession were not lost on her and indeed the way forward so as to avoid repetition was key to our discussion. In an effort to address this, the circuits will be conducting reviews of the magistrates courts on a circuit basis, to be over seen by the Presiding Judges. We will write to the Presiding Judges of each circuit to ensure that the circuit reps for the CBA are able to attend at the meetings to be held so that we can ascertain what is happening at a national level. Again, many thanks to all of you who took the time to fill in the surveys.

The results are set out here.

CLAR IS BACK ON THE MENU:

It probably feels like a lifetime ago now, but we were just at the point where the consultation period was about to end, when we were all hit with this health crisis, Covid 19. For understandable reasons all personnel at MOJ were moved from the CLAR team and deployed into other areas as we were having to address the many concerns, problems and challenges, which we as a nation we are facing. We are not out of the woods, yet but CLAR is back on the menu.

SUBMIT YOUR RESPONSE TO THE CONSULTATION BY TUESDAY 2ND JUNE 4PM:

Can I encourage those who have not done so already to ensure that your drafted documents in response to the government proposals are concluded as soon as possible. We are in the middle of discussions with MOJ as to the practical way forward because understandably much has changed but no one has forgotten and I want to make this absolutely clear, those three accelerated asks. What we are ascertaining at the moment is the timetable for conclusion of this part of CLAR and then moving into the second period of the review. We certainly do not want to leave it open for very much longer. We want to ensure that we have crystallised this aspect of the review. Thank you to those of you who have emailed in asking what has been going on. Quite a lot actually and so now CLAR can be considered!

FEES AND HARDSHIP PAYMENTS:

Hardship: Discussions continue with the MOJ, LAA and CPS on the administration of the Hardship scheme and recoupment. We understand that there are significant difficulties with the scheme and many chambers understandably have adopted policies of not to claim payments under the schemes as a consequence. We have raised these issues repeatedly and throughout, along with the Bar Council and CLs along with other issues such as payment for s.28 hearings, wasted preparation proposals, payments in circumstances where it has not been possible to achieve arraignment initially, trials which have stopped as a result of COVID-19 and will at some point recommence and we will update you in due course.

We are aware that some hearings are being listed administratively with no hearing. Where these remain on list and counsel can contribute, e.g. completion of the PTPH form, counsel will be paid.  Can we remind you to ensure that there is a record of your involvement (emails/widely shared comment etc) to ensure payment.

Discussions also continue with the Government with regard to financial relief. See the most recent correspondence with the Lord Chancellor.  We have made it clear that the trickle of jury trials does nothing to alleviate the acute financial position 99.9% of the criminal bar (not involved in such trials) find themselves in or the existential crisis. Similarly, the current financial provisions simply do not provide any level of effective relief for individual barristers and chambers.

Hardship payments do not work, loans where monies lost can never be made up are not only unattractive but simply kick the can of potential bankruptcy down the road. We feel like we are banging our heads against the wall but a treasury sector led package is required.

RESUME:

So it’s been a busy week and no doubt this week will be equally as intense. Many thanks to the Bar Council and thank you also to the circuit leaders who have readily engaged with the CBA on a number of topics because ultimately we all want to go back to court and we want to go back to court safely.

FILM OF THE WEEK:

Malcolm X –

It is 200 minutes long which is just about the amount of time you will need to read this message !!!!!

Stay safe!

Best wishes,

Caroline Goodwin QC
Chair