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The South Eastern Circuit
Leader's Update
What is the Government’s Recovery Plan for “Justice”?
Your guess is as good as mine.  Perhaps we will learn soon.  
 
Let us assume for a moment that the Government has the will to restore the justice budget to where it was a decade or so ago.  A big assumption I know given the nation’s finances. What would we ask?  I am not ranking what follows in order of importance.  It is all critical.
 
First look across all sectors of the civil justice system and determine whether it is failing in areas other than high end commercial work and the most urgent of family law cases.  Are the anecdotes about the disappearance/ cessation of meaningful work in the tribunals and county court true?  What has happened to the fast track trials that are the life blood of large parts of the Bar?  Employment, housing, benefits, smaller claims are not matters to be disregarded.  Access to all kinds of justice is critical to millions of people and the fairness of our society.   Is the problem a lack of court staff, failing to invest in technology, a crumbling and inadequate estate, tribunal and court fees, antiquated procedure?
 
Above all we need to base policy proposals on data and objective information rather than prejudice or preconception.  
 
8 days ago on 11th June, 
HMCTS published data that goes some way to set out the problems of the backlog.  

As long ago as 2nd April the Bar Council had first asked HMCTS for this material.  We have been demanding it repeatedly since.  Analysis and proper understanding of the true position is critical before commitments are made to setting policy in any particular direction.
 
One civil practitioner who started looking at the data last weekend sent me the graph below, relating to one aspect of the data, saying:

I’ve only done civil because that’s what I do. The total number of COVID-related adjournments adds up to 23,732. That’s one heck of a backlog.  My questions are: (1) why has the number of cases received dropped so dramatically; and (2) if that is genuine fall in demand, why is HMCTS unable to meet it?

Fair questions you may think




In crime the problem is more visible.  We can all see what is not happening in Magistrates and Crown Courts.  But the same point about understanding the data is vital before any policy path is set.
 
The LCJ identified the problem right at the outset of
his evidence to the Justice Select Committee on 22nd May, when Lord Burnett said (in the context of crime and jury trials):  
 
That is an indication of one of the data problems that we have. What I have been trying to find out—we have not got there quite yet, I am afraid—is to identify with much more clarity how many trials we have, how many are trials with defendants awaiting trial in custody, and how many are defendants awaiting trial on bail.’
 
Crown Court centres everywhere are opening up.  Some have teething problems.  But we can hope that most will have  at least one trial court up and running by early July.  You have read here for many weeks now the repeated refrain that the current estate cannot cope with the backlog.
 
But until HMCTS has an objective understanding of the numbers – the ‘data problems’ referred to by the LCJ - including the lengths and shape of the outstanding trials, and the number of multi-handed cases, determining policy is not sensible.
 
Consultants within the NHS tell an interesting story about the Nightingale Hospital in the Excel centre.  It was a brilliant piece of engineering thrown up in record time, but ended up being redundant because it was designed for a need that never in fact arose.  Worse still it could not help with the need that did arise.  I would be the first to forgive the decision-makers for all kinds of reasons, but the wider point is, I suggest, important.  Identify the precise need before you spend, or consider changing the law.  And work out whether your proposed solutions in fact help at all, before you spend, or consider changing the law.  
 
Whither Jury Trials?
The “Additional Courts and Tribunals Capacity” project is driving on.  For example, on Thursday morning I attended a venue in south London with a team from HMCTS and Southwark Crown Court to explore possible court rooms.  I have no idea whether this particular project will work, but I do not doubt the drive and effort now being put in to find alternative venues.  Once we have found suitable venues – and it is not easy even for Crown Court trials where defendants are on bail – then we shall see if the government is prepared to fund the restarting of criminal justice in a meaningful way.  The steering group on which the professions are represented meets again on Wednesday next, so I will report on progress next week.  
 
Of course by then the Government may have altered (or at least signalled a reduction in) the social distancing rules.  If 1m becomes permissible, then all those tape measures come out again and all our Resident Judges are back on their hands and knees seeing what is possible in their courts.  This is precisely the sort of contingency planning that I know some are already doing.
 
A weekly message like this is no place to formulate policy or set out the views of the Bar on possible reform.  Every one of you will have your own views on what matters about our justice system.  But I would like to make one thing clear.  The Bar Leadership has not been consulted on any of the policy proposals being floated.  We are not engaged in discussions about what might be acceptable or not.  If someone ever asks us, we will tell you.

 

Before anyone considers tampering with the requirement that we have 12 jurors at the start of every trial, I would want answers to a large number of questions.  Not the least of those would be, where is the evidence that you will do any more trials with, say, 9 than you can do with 12?  Many Crown Court Judges say that 9 would make no difference at all with the current rules at 2 metres.  And if we are about to have a reduction to 1 metre as all Government “signals” suggest, surely we should work that through before any more drastic solution is contemplated?  Above all, how can it be right to take away the right to a jury trial from someone who elected some time ago?  
 
I would like to direct you to the work of Professor Cheryl Thomas QC who conducted some research on juries for the MoJ.  The first report “Are Juries Fair” was published in 2010.  In 2014 she published an update:  Ethnicity and the fairness of jury trials in England and Wales 2006-2014 Crim. L.R. 2017, 11, 860-876.  

This was her conclusion in 2014.
 
This new analysis of Crown Court jury trials shows that over the eight-year period 2006-2014 there was no change in the key findings of the 2010 study Are Juries Fair? when the specific issue of defendant ethnicity was considered. This updated and expanded analysis of all charges against all defendants in the Crown Court from 1 October 2006–31 August 2014 found that White and BAME defendants were still charged most often with different types of offences, and that BAME defendants consistently pleaded not guilty more often than White defendants in relation to almost all types of offences. Over this eight-year period it also remained the case that jury conviction rates showed only very small differences based on defendant ethnicity, and that for offences that make up over three-quarters of all jury verdicts, jury conviction rates were either essentially the same for White and BAME defendants or White defendants were convicted more often than BAME defendants. 

This reinforces and helps to confirm one of the most important conclusions of the 2010 study: that unlike all other stages in the criminal justice process in England and Wales, the one stage where members of BAME groups appear not to be treated disproportionately is when a jury, made up of members of the public, reaches a verdict by deliberation.
’ 

I have added the emphasis.  We are rightly proud of our jury system and how it protects the rights of all citizens.  
 
This crisis can be fixed using a number of tools.  I have written about many of these in earlier messages and the professions will play their parts.  Among other things, we should actually have an open and honest conversation about that most opaque of concepts, the currency known as the “sitting day” and how its notional costs are measured.  
 
This is a vexed subject that may be of little relevance this year because we have lost four months - it is difficult to conceive of how we could ever reach the provisional total that was still being negotiated back in March.  But we must not forget that the decision to reduce sitting days was a “political” one (per the then SPJ, Lady Justice Macur, September 2019).  If we can find enough court rooms and Judges (or Recorders), a return to 2018-2019 numbers might clear a 5,000 case backlog in 12 months and a return to 2015-2016 sitting days could clear the entire backlog in about 6 months.  On that note if anyone can persuade the BBC to devote its “More or Less” programme to some work on the CJS, I would be delighted.
 
The one thing we do not need to do to address the backlog is erode the right to jury trial.   

Finally
As the courts slowly reopen we are discovering that different courts all have slightly different approaches as to who is required to appear in person and when.  This does not make our lives any easier.  Some of you will be nervous.  Heads of Chambers, Bar Mess Chairs and I will all help where we can.  
 
CVP.  We will have to hand back the SEC training room soon.  HMCTS says CVP is coming to various jurisdictions.  Please can you all make sure your chambers has appointed a technical rep who can conduct a training session if you wish.  
 
Thank you to Amanda Pinto QC and Katherine Duncan who joined SEC members last night on a zoom call to answer your questions.  Both have been working night and day for three months now to further your interests and we owe them a great debt for the efforts that they and the Bar Council team have put in.
 
One topic that we touched on last night was the generic responses now being received from some MPs to whom you have written.   If you want to understand why the Government “help” offered so far to the Bar is of very limited effect, the best possible
starting point is this Bar Council paper.
 
Tonight was meant to be the occasion of the CBA/ SEC summer party.  It is of course a great pity that we are not able to gather together for a mid-summer celebration.  It does mean however I can say a thank you to Aaron who works so hard for both organisations and looks after us so well.  He has put in an extraordinary “shift” over the last three months and I know I speak for everyone in saying how grateful we are.
 

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

SEC and Bar Mess Events:

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

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:
Thursday 16th July
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.

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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