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The South Eastern Circuit
Leader's Update
Mid-summer has been and gone.  The heat is driving everyone a little crazy and we are all impatient to understand what the changing of HMG guidance from 2m to 1m+ actually means as far as the courts are concerned.  It is sometimes tricky to know where we stand, halfway between the opening pubs and hairdressers, and the firmly shut gyms and outdoor swimming pools…  and all the time we watch and read stories about a second resurgence of the virus and wonder what might happen here next.
 
It has been an extraordinarily stressful time as chambers burn through cash, contemplate redundancies for staff and consider giving notice on premises, individuals wait for the Bounce Back Loan that might never come, and we all twiddle thumbs waiting for meaningful work to return.  Please look around you and check up on friends and colleagues.
 
All Courts: In person or remote?
 
The choice is not binary.  Through the last three months we have learned a huge amount.  There is a widespread desire to harness the best of remote work, but not to become slaves to the machine.  We all see the potential in saving time and money 
 
There are some common threads emerging, whether one has been using a sophisticated and bespoke platform in an international arbitration, or have been struggling with a collapsing phone or skype link in a lower court.
 
The “rapid reviews” that have been done in family and civil work reveal what all practitioners in all jurisdictions understand and experience.  Digital works very well for those with the resources and skills to use the most advanced platforms and technology.  It is no good for the unrepresented litigant who is struggling to understand what is happening.  Those who speak from experience about contested hearings in county courts were very unimpressed with HMCTS’ ability to cope with technology.  There are real concerns about the poor quality of “remote justice” for all but the simplest of contested county court hearings.  The CVP link to a prison is fantastic if it works, and the operator in “HMP Slade” knows what he is doing.  It is less than useless when a lawyer is offered the next available appointment in late September.  
 
As the country and Courts are opening up we are all learning how to do things a little differently.  And different courts have their own approaches which does not make our lives any easier.  This is a topic of real concern with many of you and is right at the forefront of discussions with the Judiciary.  We all understand the importance of appearance in person for key hearings - we are a face to face profession of advocates after all - but we also want the option to appear remotely if e.g. health considerations apply, or the hearing is administrative in nature.  We are also acutely aware of the age-old problems associated with lists without time markings.  What was just tolerable in a pre-Covid era, should not be at a time when we are all struggling so hard to manage footfall.  More detail, I hope, next week.   
 
Court Capacity – what reforms are looming?
 
The short answer is, we do not know.  We are not being consulted on possible legislative reforms and do not know what may be coming.  
 
But I hope many of you will have seen the letter from Circuit Leaders in The Times today and the article about new court centres.  We are adamantly opposed to the proposal that a Judge + 2 is an acceptable way to try Crown Court cases.  For those who do not subscribe to The Times this is what we said:
 
The solution to a backlog of criminal trials, which has built up over decades of underfunding is not to slash and burn the criminal justice system.  The solution is proper funding.  There is no need to replace jury trials, which are the only part of the criminal justice system which is representative of the population and is fair to BAME defendants. We only prosecute about 3% of crimes in this country, so we should at least do that properly. The decade of brutal cuts to the Police, Crown Prosecution Service, Courts, the Prison estate, Probation Service and legal aid lawyers has brought the system to its knees, but it can be fixed. That fix in the short-term requires “Nightingale” courts: we have identified empty buildings for the Court Service and now they need to open them up for trials so that victims, witnesses and defendants do not have to wait for even longer than they did before this crisis hit us.
 
Can I recommend that you
listen to Richard Wright QC, Leader of the North Eastern Circuit being interviewed on this and other topics this afternoon on Talk Radio, he starts about 2:27pm.  You go to the link that is timed 14:00-14:30 and scroll forward past the piece on dog fouling.

Many other practical problems will have occurred to you about the consequences of trying any offences in the Crown Court by Judge + 2.
  1. It will not clear the backlog unless applied retrospectively. How can you allow a defendant to elect trial by jury and then subsequently deny him that choice? Defendants presently before the Crown Court will suddenly find that they are not getting the form of trial they chose. 
  2. Who will make the decisions on admissibility of evidence or other legal issues.  What does this do to our rules of evidence?  Will the Magistrates be in court when argument is heard? Will the magistrates be expected to have read all the papers in advance?  Will the judge?  
  3. If the verdict is accompanied by detailed stated reasons, as will have to be the case, presumably the regime of appeal which applies to the Magistrates Court will also have to apply to this court?  So do you have a right of appeal for both parties?  By way of Case stated or judicial review, to which jurisdiction the CACD of the Divisional Court?
  4. The retirement of the court may not be as long as the retirement of a jury, but for however long it is until the decision is reached and the written reasons provided, that court will not be able to sit.
If you have not watched it already, I encourage you to watch the Lord Chancellor giving evidence on 23rd June to the Select Committee.

Form your own view.  We are told the work in modelling (measuring?) capacity is still ongoing.  We have
naturally asked to understand what assumptions are being used.  Back to that old chestnut about what does “1m+” actually mean…? For example, if there is enough space in a court room for a jury of 12, but that there are pinch points back stage, then the plus might mean that people wear masks (or gloves) to walk from a waiting area to a court, where they can either wear the mask, or take it off as circumstances/ guidance requires.  For my part, I think that until this work is significantly more advanced, then it is neither rational nor possible to say what other measures might be needed to improve capacity.

Other Measures?

Extended Hours.  We do not know what may end up being proposed.  We fully understand the discriminatory effect and have been making such representations throughout.  This is particularly acute when one considers the limited/ part time schooling that is available to many working parents.  And the reality is that women bear most of this burden.  The retention of working mothers at the Bar is not a feminist issue.  It is a problem that belongs to all of us and one we should all be looking to address.  

Extension of S28 -  Pre-recorded cross examination in the Crown Court for vulnerable witnesses.  HMCTS hopes that it will be able to roll out s28 technology and powers to many more courts across the country in a number of waves starting in early September.  More concrete plans will hopefully emerge soon.  We have of course stressed the importance of lead time so that defence teams can make sure all proper disclosure is complete and instructions obtained, particularly from those who are in prison and for whom access to the outside world is so restricted by the lack of video end points…

Finally

I wish you all a very good weekend.  


Yours,
 
Mark Fenhalls QC
Leader of the South Eastern Circuit

leader@southeastcircuit.org.uk
Announcements:

The Barristers' Benevolent Association:
The four Inns, together with the Barristers’ Benevolent Association, have launched a Covid-19 fund to give emergency financial assistance where it is urgently needed at the Bar. This fund will help those members of the Bar who are unable to support themselves and their families during these difficult times.

Their aim is to make emergency grants to barristers who are suffering financial hardship as a result of C19 impeding their ability to work as a barrister, as fairly, swiftly and simply as possible.

For details visit their website and complete the short Covid19 application form and email it to 
covid19@the-bba.com
 
Website: 
the-bba.com Email: covid19@the-bba.com
nicky@the-bba.com or annette@the-bba.com
Telephone: 07887 841302 and 07375 557326
 
The BBA exist to support, help and comfort those members of the Bar in England and Wales and their families and dependents who are in need, distress or difficulties. 


2020 Law Reform Essay Competition:
The essay competition is open to those in pupillage, having an offer of pupillage, undertaking the academic or vocational component of training for the Bar or actively seeking pupillage having completed the BPTC within the last five years.  It is aimed at fostering interest in law reform among aspiring barristers.  Entrants are invited to submit a 3,000 word essay making the case for a reform to English, Welsh or European law. The competition is generously sponsored by the Bar Council Scholarship Trust and offers prizes for winners, runners up and highly commended awards.
 
Please see the
website page here which gives more details including a YouTube video, previous winning essays, a blog from the 2019 prize-winner and the application form.  We have also posted on Twitter about the essay competition and it is included in the most recent edition of ‘BarTalk’.
 
If you would like any further information, please 
contact Eleanore Hughes.


Vacancy:
The Bar Council is looking to nominate a barrister representative for the Incorporated Council of Law Reporting (ICLR) in a 4 year post:
Full Details and to apply


Vacancy:
The BSB are recruiting 11 Subject Specialist External Examiners and 5 Subject Lead External Examiners from September 2020 to ensure that the common assessment criteria for the vocational component of Bar training specified in our Curriculum and Assessment Strategy are met.  To express an interest in one or more of these roles please send a CV and brief covering letter stating how you think you meet the requirements by 1st July 2020.  
Full details and the apply


CPS Advocate Panel – NEW online application process / TEAMS training sessions:
From September 2020 all applications for the General Crime Panel (incl. RASSO) and Specialist Panels – new joiners and upgrades – will be completed and submitted using a new online application process.
 
The new process has been designed based on feedback from a range of current and prospective Panel members.  The new platform, which will be available in August, is intuitive to use and will provide applicants with a vastly improved experience.  
 
To support its launch, the Advocate Panel team are running a series of virtual training sessions in July 2020, via Microsoft Teams, for those wishing to join the Panel or upgrade their level in September or re-apply as part of the 2020 refresh.  Each session will provide an opportunity for potential applicants to:

  • Learn how to complete and submit an application using the new online process
     
  • Hear from CPS Assessors about how to complete a good quality application 

The sessions will last approximately an hour and be held on the following dates:
 
Wednesday 8th July – 4:30pm
Monday 20th July – 4:30pm
Thursday 23rd July – 4:30pm
 
If you are interested in attending one of these sessions, please contact 
Advocate.Panels@cps.gov.uk as soon as possible to book your place. 
 
For any other queries, please contact the 
Advocate Panel mailbox where the team will be happy to assist.

SEC and Bar Mess Events:

Bar, BAME and COVID-19:
Tuesday 30th June
17.30 - 19.00

Further details and to book


LGBT+ Visibility in the Legal Profession:
You!Me!Us!We!   
Tuesday 14th July 
18:00 – 20:00
Online Live Event

Further details and to book


ICCA Bar Course:
Junior members of the Bar and 2nd Six pupils
16.30 each day until the Courts reopen

Pupils can book into a session here

SEC/CPS Form Filling Virtual Lecture:
This Course will now take place in October 2020.
17.00 - 18.30
An intensive session designed to explore all issues surrounding CPS grading applications.  A panel of speakers will discuss how to tailor your experience to the CPS grading criteria, and to project your skills appropriately.  There will also be an exploration of common mistakes made in the application process, and how to best avoid these.

Further details will be announced shortly. Please register your interest to attend here.

Wellbeing Event:
Calmer, Easier, Happier, Parenting
Guest Speaker: Noël Janis-Norton 
Wednesday 22nd July 
17.30 - 19.00
Virtual Seminar
Further details and to book your place


SEC/Silk Application Guidance - Virtual Lecture:
Thursday 30th July
17.00 - 18.30
This session draws together the exercise of those who have successfully attained the rank of Queen’s Counsel in recent application rounds and long standing Queen’s Counsel to provide a breadth of experience and advice.  The session will take a holistic approach and will explore the steps to be taken before any application is made, the pitfalls and mistakes that should be avoided, case and reference selection issues.

Further details will be announced shortly. Please
register your interest to attend here.

SEC/Recorder Exam Guidance - 
Virtual Lecture:
Thursday 3rd September
17.00 - 18.30
A session focused on exploring how to approach the recorder application process.  This seminar draws on the expertise of sitting Recorders and Circuit Judges to explore prepare to make an application, how to navigate the application form and its pitfalls, and how to approach the final exam.  This session is expected to be very popular; please reserve your place as soon as possible.

Further details will be announced shortly. Please
register your interest to attend here.

Diversifying your Practice:
An Evening in September
Further details will be announced shortly
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