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The South Eastern Circuit
Leader's Update
Stocktake
4 months ago you were adjusting to the fact that the country had just been shut down.  We entered uncharted waters.  We now know from experience and press reports that no one had much of a plan.  This period has tested us all.  If anyone knows of a junkyard somewhere in southwest London that offers therapy sessions with a sledgehammer please let me know.  There is a limit to whatoccasional yoga and frequent wine can do…

Every sector of society has been competing – continues to compete – for government help.  We are no different, save that our livelihoods have been taken away and, for large numbers of us, we face 6-9 months of earning little or nothing at all.  And not much prospect of the work restarting in meaningful volume anytime soon.  The uncertainty around future work means a huge reluctance to borrow and many people are living off the tax money they had saved for 31st July this year and the VAT quarter they have postponed into next year...   
 
So my first request of government is to allow scheduled payment without penalty of any of the tax bills deferred from this year.  And how about having to pay tax on money that we actually receive?  My memory is fading but I think it was a change made by Gordon Brown that might be reversed.
 
Chambers anxiously manage cashflow, give notice on property, agree reduced salaries with staff and, very sadly, make some redundant.  We all wonder what might happen to the commercial property market, think about mergers and economies of scale, and consider how we can remain as chambers/ barristers through the winter ahead if work does not pick up?
 
We keep coming back to the vexed question of capacity and “what next?”  The answer differs  of course from jurisdiction to jurisdiction. Within civil and family the urgent and high end work is in reasonable shape – as ever those with access to resources have a much easier time.  At the lower end of the scale in the county court and small claims court, the picture is far less reassuring.  Digital is, I am afraid, increasing inequality – something that the justice system above all must guard against.  In crime, after much noise about possible legislative reform of jury trials, this issue has now disappeared, at least until the Autumn.  A message like this can never address more than a small part of the picture, so here goes with a few bits and pieces.
 
Current Crown Court Capacity in SEC
Anecdote suggests that most courts are more up to date than they have ever been with non-trial work.  The technological fixes we have all laboured with since late March, have kept some parts of the system running.  The achievement in doing this is huge and real.  But it does not enable any of us to make a living.  Unless the new technology is used, it often means we make a loss going to court.  Without jury trials, we are in deep trouble.  
 
I have looked at Courtserve now every night since 12th July.  On the South Eastern Circuit there are, by my count, 200 Crown Court rooms.  I do not know how many of these were being used (or capable of being used) regularly as trial courts before the pandemic. There are no trials underway in Aylesbury, Basildon, Kingston, Lewes and Hove.  Ipswich ran its first trial this week.  Across the rest of the region some courts are doing relatively well.  Everyone is hampered by the geography of their buildings, but Guildford and Reading have been able to list far more than other courts.  By my reckoning around 30-32 courts have been capable of hearing trials split across 26 court centres.  Some courts are slowly increasing their listing as staff and Judges gain confidence and develop new workarounds.  But many are not and so we have to ask “why?”  
 
Why is there not a trial listed in every one of these 30 odd court rooms, with a backer trial, every day of the week?  The backer trial could always be listed with the parties present, but witnesses not to attend, remaining on standby.  We all know that many, many trials would crack if listing was more ambitious and the threat of a real jury concentrated minds on both sides.  Is the problem in the list office, with staff, advocates, witnesses, other agencies, where?  What extras does, for example, Snaresbrook need to increase its trial listings from 1 out of 21 courts?  Is the issue human (staffing, advocates, witnesses etc?) or physical (assembly/ retirement rooms for jurors, Perspex screens etc?)  Who is asking these questions and to whom are they accountable?  When are any plans going to be made public?  If ever there was a court centre crying out for portacabins or weatherproof marquees to help solve the problem, Snaresbrook has the space…
 
All the smaller court centres should be striving to have two court rooms in use for trials by the end of August.  The medium and larger sized centres should be aiming higher.  This might require moving some current inhabitants elsewhere, or using space nearby.  Try working up an idea for a court you know well, and please send it to me.  With your Bar Mess Chair, we will try and help implement where we can.
 
The return of work?  - Blackstone Courts
The first Blackstone courts were announced last Sunday.  10 sites across the country.  7 serving civil and family, 2 serving crime and one which may do both.  I know some of the sites in other parts of the country come with baggage, and many of you remain sceptical – with good reason given the savaging of spend on justice over the last decade.  But I prefer to regard this as a small and welcome step in the right direction.  “The journey of a thousand miles” and all that…   
 
In particular I am relieved that one of these, Prospero House, will provide 3 covid-proof large court rooms that can run jury trials safely and help ease a small part of the pressure on the Southwark lists.  I sit on the Local Implementation Team that meets twice weekly.  The sheer complexity of setting up the backstage operations for any court – even one that does not require a dock – is often underestimated.  But the good news is that the building is being refitted now and should be open for the first trials in the week commencing 3rd August.  
You can find a letter to stakeholders here.
 
The experience learned in setting up these new courts will help inform the next stage.  Finding buildings that work for juries is really not easy.  So we will need to add on capacity to existing court centres.
 
Section 28
The final / confirmed list of SEC courts that will be in the next wave permitted to use these powers will not be official until Ministerial signature in mid-August.  But it is hoped that this will include 15 new court centres across the London and the South East.  I have been permitted to share the list below informally ‘for practical reasons to assist in the planning of these hearings… with the understanding that the official comms will be released by HMCTS once the Commencement Order is signed by the Minister’.  

Those practical reasons include making sure you have full instructions, disclosure is complete, the witnesses are available, and you are ready to go.  The likely (but I stress yet to be legally confirmed) list is:  

Basildon, Canterbury, CCC, Chelmsford, Croydon, Guildford, Harrow, Inner London, Isleworth, Lewes, Maidstone, Snaresbrook, Southwark, Wood Green, and Woolwich.  

Many of these courts have very little jury trial capacity at present, but have plenty of court rooms that are currently not being used; and I know there are many under-employed Judges who know how difficult your lives are and are keen to assist.  So if you have a fixture with qualifying witnesses that is supposedly due to start in September or October, why not consider whether it would be appropriate to use these powers?  Talk to your client, and your opponent, plan ground rules hearings and ask the courts.  It might mean the trial starts, witnesses can give their evidence and get on with their lives.  And you can be paid, in circumstances where the case might otherwise float off into the ether for a very long time to come.
 
Trouble in Magistrates Courts
Many of you will know pupils or junior tenants who have been caught up in the “bucket lists” held at Highbury Corner, Thames and Croydon Magistrates this week.  Layers of irony in that name.  Something went badly wrong;  no one (including HMCTS) wanted all these people to travel across London or to show up at court simply to have their cases adjourned.  HMCTS’ apology to the President of the LSEW began:  ‘The first thing to say is that we are very sorry this has happened – it shouldn’t have, and we’re urgently working to learn from it and make sure it doesn’t happen again.’  But it may be asymptom of how archaic and impossibly overstretched the administration of the courts has become after a decade of remorseless cuts.  We all know how impossible it is to get a timely response out of list offices in all courts.  We do not blame the hard-pressed individuals who are left.  But as we work remotely and manage our cases by email as required, we create greater burdens on HMCTS resources.  And there simply do not seem to be enough staff to adapt to the increased and different demands of this digital era.   
 
Extended? Staggered? New? Different? Operating Hours
No more news yet on any MoJ proposals in any jurisdiction.  What we are told is that the officials are talking about staggered or shifts in court buildings and not asking individuals to work even longer hours/ days.  Ministers and HMCTS have committed to provide us with modelling and such evidence as they have; this should enable us to assess whether or not any of the proposals would actually achieve anything at all.  Next week HMCTS will hold meetings with Bar Council, Circuits and SBAs at which they say they will tell us more. 

Can I recommend this survey/ report on 
EOH which has been published today by the North Eastern Circuit.  If anyone disagrees with the conclusions do let me know.
 
Other
On 15th July, I participated in an HMCTS hosted 
webinar about the use of remote hearings to maintain justice during the coronavirus outbreak.  On our Circuit in September the following Courts will be “early adopters” of the “Common Platform”: Croydon Magistrates’ and Croydon Crown Courts, and Guilford /Staines Magistrates’ and Guildford Crown Court.  More of this on a future occasion.
 
The Bar Council has published an excellent, if depressing and unsurprising, 
report into the state of the Justice System.
The research found that overall funding for the justice system has declined by 29% in real terms per person since 2010.
 

Amanda’s message earlier this week contains the SPJ’s reply to our listing requests and is well worth reading.
 
Masks?  I am sure many of you saw the CBA message last night passing on the HMCTS announcement about masks:  ‘I’m writing to inform you that from Monday 27 July 2020 we are asking all court and tribunal users to wear a face covering in the public areas of our buildings in England. This move is part of our comprehensive work to minimise COVID-related risks throughout our buildings, and is based on the latest advice from Public Heath England.
 
I was told yesterday about a 4½ year old whose father was explaining to her earlier this week that masks were about to become compulsory in shops.  She asked why and he said that it was because it would help stop the spread of the virus.  She paused and then asked, “then why didn’t we do it at the beginning?” Out of the mouths of babes…
 
In the past, August has usually involved some kind of break.  I am not going to try and predict what will happen this year, but please do not be surprised if updates from next week onwards are a little shorter and more focused.
 
Finally
Today marks a farewell.  Lady Justice Rafferty retires from the Court of Appeal all too soon.  Many of us would have wished to join Anne and participate in a proper valedictory in the RCJ to mark her exceptional career.  As a pupil I had the privilege of watching her defend in a tricky murder case at the Old Bailey; later as a junior I watched her preside over a multi-handed manslaughter; more recently I have come to know Anne through her tireless work for The Kalisher Trust.  Throughout her career she has given selflessly of her time and provided great service to the professions both at the Bar and on the Bench - she was of course the first Chairwoman of the Criminal Bar Association.  I very much hope she will be able to join us at some kind of Circuit event later in the year.  But until we are able to reassemble and raise a glass of wine in celebration, for the moment I can just say thank you and wish her, Brian and the family well as she leaves our stage that she has graced in such exemplary fashion.


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 Council of the Inns of Court (COIC) seeks to recruit a talented Bar Course Designer/Tutor with experience of Civil Litigation and ADR for a 12-month maternity cover contract commencing on 1st October 2020 or as soon as possible thereafter.
 
The successful candidate will take a leading role in the design and development of the Inns of Court College of Advocacy’s (ICCA) two-stage Bar Course before moving on to take on a role as a Bar Course Tutor in March 2021.
 
Reporting to the Bar Course Leader, the new Designer/Tutor will join a core team responsible for the development of Bar Course lesson and assessment content using the latest blended learning techniques.
 
For more information and a
full job description please follow this link


Vacancy:
CPS Lawyer Secondments opportunities for Advocate Panel members at level 1 and 2 - click the relevant position for further details and to apply.


Nominations for the 2020 Bar Pro Bono Awards are now OPEN!
Do you have a friend or colleague who goes above and beyond for every pro bono client? A mentor who goes the extra mile? A clerk who always manages to find time in everyone’s diaries for pro bono work? 

Give them the recognition they deserve by nominating them for a Bar Pro Bono Award at weareadvocate.org.uk/nominate 

The deadline for nominations is Sunday 27th September 2020 and most of the awards will be presented at an online awards ceremony during Pro Bono Week in November. 


ICCA's Guidance - Expert Evidence:
The ICCA are delighted to announce the publication of the third edition of the ICCA's Guidance on the preparation, admission and examination of
expert evidence which can be found here.
 
The importance of expert evidence and the crucial role of advocates in promoting its reliability through high standards of case preparation has long been recognised. This guidance is intended to be generic, practical and relevant to advocates working in any court or tribunal in England and Wales. It is an introduction to, and/or a handy refresher of, the principles that underlie the use of expert evidence.

Access further information

Anchorage House Medway County Court - Pubic Consultation:
The consultation also sets out why it will be necessary to adopt temporary listing arrangements for the work currently heard at Medway County and Family court pending the completion of enabling works at Maidstone. We have outlined the reasons for our approach and why these temporary arrangements will be necessary. Work will be heard by telephone or video where possible, and the remaining work would be distributed between Medway Magistrates’ Court, Maidstone Combined Court (without enabling works), and county courts in Canterbury, Dartford and Thanet (Margate).
 
The consultation will run for four weeks and will close on 11th August 2020. Consultation
documents are available here. Please feel free to, cascade this information to your colleagues and interested parties at a national and regional level, as appropriate. Alternatively, if you would like to discuss this further, please do contact the project team at estatesconsultation@justice.gov.uk.


Young Citizens Bar Mock Trial Steering Group:
'message from the programme administrator'
Since we last spoke, a lot has changed. We hope you and those close to you are doing well during these times. At Young Citizens we have been thinking about preserving and adapting our programmes given the uncertainty that surrounds us. In light of this, we have made the following changes to this year's programme. 

  • Changes to the application timeline. (The key dates are below, but the full timetable is on our website.)
          Regional heats held - late January/early February 2021
          National Final - March 2021
  • Wider use of remote mentoring for schools. In recent years we have encouraged barrister mentors to be open to the option of providing remote mentoring assistance, rather than visiting schools in person. In light of the current situation, it will probably come of little surprise that for 2020/21 we’re moving to a predominantly remote model.  We understand that school visits may not be possible in the next academic year but still want to continue providing support to the schools who want to participate during what we know will be a challenging time for teachers.
We understand that uncertainty due to COVID-19 is not limited to schools, and that you may not be able to commit to helping out yet due to the workload and time commitments resulting from disruptions caused to the legal system, but we are doing our best to plan ahead for next year’s heats, and as such we would be very grateful for any indication you could give at this point as to the likelihood you’ll be available to mentor in the next cycle.
 
Once again the commitment would be for 2 (remote) mentoring sessions, however with the school preparation period running from September to January (with the first heats planned for 16th Jan), there’s more time than usual to fit these into your schedule. We will be providing updated guidance and support for a new model of remote mentoring to you and schools in due course.
The key questions for us right now are:
  • Are you likely to be able to mentor between the months of September to January?
  • Could you do so remotely?

Please do fill in this survey at your convenience if you’re up for taking part, and if you could pass this message along to your colleagues in the profession we’d be doubly grateful.

SEC and Bar Mess Events:

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.

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.

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.

Please
register your interest to attend here.

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