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Four Weeks In, Three Weeks More, and Then?
All of us are asking the same questions as we contemplate and worry about the coming weeks:  What is the HMG plan for restarting trials?  When?  Which trials first?  Where?  How?  Will the courts be clean and safe? How much might be done, if anything, “remotely”?  What is happening and where?  What is the exit strategy?
 
We want to believe that there are “grown-ups” out there who know better than we do… and maybe the science will triumph and light our way.  And so each day, we try to adjust and plan our way through this uncertainty.  

None of us have a better answer than anyone else, but the debate is important.  Every opinion matters and from out of the discussion a consensus may emerge about the least bad way forward.  So please keep sending in your ideas to 
leader@southeastcircuit.org.uk and/or the C19 Working Group, cwg@BarCouncil.org.uk.
 
So what can we do on a practical level in our lives?  We can think about what we demand from Government to try and help; we can try and make the ageing technology work in the few cases that continue; we can keep making plans and trying to cope with the rickety broken world we face.  I am particularly grateful to those who are tentatively planning how they might conduct a jury trial in their local courts, while adhering to the social distancing rules.  I know several Residents across the country are doing the same.   

But the most immediate thing I would ask you to consider, is the national appeal launched by the BBA and the Inns of Court.

BBA appeal.
Alongside fellow Circuit Leaders, I urge you to 
support the national appeal made by The Barristers’ Benevolent Association and all four Inns of Court.

If you are in the fortunate position of being able to make a contribution, however small, we would urge you to give whatever you can to the BBA/ Inns of Court appeal and take advantage of the GiftAid provisions.

We are only too well aware that the BBA is only permitted to support barristers who have received a paid brief.  The Inns have also announced the setting up of hardship funds, designed primarily to assist pupils and other junior barristers who are not eligible for either the Government assistance for the self-employed or for help from the BBA.  

If you know of people who need help, please point them in the right direction.

What next? What do we want from the Government?
Dealing with Government and bringing about change can feel like rolling the proverbial rock up the hill, even in the best of times.  

While we are naturally grateful for what has been done, there is so much more that needs to be tackled urgently.  The attempts to keep open parts of the justice system are noble, but if we limp on as we are, the blunt truth is that many of us will go bust.  Some very soon, others during the summer and in the autumn.  On 23rd March the Government decision took away our ability to earn a living.  

The well-intentioned measures either announced or implemented so far are not enough.  This is a message that we take to Government in one way, shape or form every day. 

Please take time to read messages like the one 
published by the Bar Council yesterday.

‘In April one seldom feels cheerful…’
Trial listings in the civil courts have collapsed.  There is little or no prospect of a return to jury trials until at least the summer.  But there are some welcome shards of light in the gloom.

The Inns of Court have produced a helpful 
guide to remote advocacy.  It may stimulate some useful debate within chambers as you plan some mock trials for your pupils.  Having struggled through a couple of Skype for Business hearings, I think that probably the least bad way to cope is to treat it like a court of appeal hearing – put everything in writing in advance and hope your written advocacy proves so powerful that you get away without being asked any questions.

Perhaps this will change when we are eventually allowed, or able to use, better technology in the courts.  Wouldn’t it be lovely if we were permitted to use platforms that did not require us to use semaphore?  Happily, there are new technological fixes just around the corner, such as the Cloud Video Platform (CVP) that may transform some of the remote working…  

For example, HMCTS announced this morning that the CVP will start to be used in some civil and family hearings. On the Government website you can find 
guidance that describes how it can be used.  Reports emerging from those Magistrates Courts where it has been tested suggest that lawyers sitting at home can easily connect to their clients on remand in prison.  But as ever there is a catch and the success of this element of the project will depend on the availability and capacity of facilities at different prisons around the country.

It is deeply frustrating not to be able to tell you when this sort of initiative will be rolled out further.  It is not for want of asking the question.  Of course we all want to be able to offer routes through and I am as impatient as any of you for more answers.

SEC Event next Thursday
I am delighted to announce a zoom event at 5pm on Thursday 23rd
 with the Resident Judges from Harrow, Isleworth and Woolwich who will be joining us to answer questions about the good and the bad of remote hearings, and all the practical challenges faced by the Courts and their staff.  Please book a space with Aaron.

Listing (& the LAA updated guidance on payment for administrative hearings in Crime)
Last week, the LAA updated their financial guidance as requested by the Bar at 
https://www.gov.uk/guidance/financial-relief-for-legal-aid-practitioners.  

We have asked our Presiders and Resident Judges to make sure that cases appear on a court list described as, for example a “video/ phone / administrative paper hearing” to make the process of claiming as simple as possible. Similar issues apply to CPS work - their auditors require a listing on a court list to enable payment.

Staffing, Resolution and the Backlogs
With HMCTS staff numbers down as much as 70%, running courts is obviously not easy and many courts can only run 1/3 (at best) of their court rooms with the available staff.  This has had huge knock on effects in both civil and criminal work.  It makes the job of our remaining (not yet furloughed) clerks far harder as they try and get answers from list officers.

The backlogs are getting worse and we have a real “lack of capacity” issue ahead.  Whatever else we do, we need to find ways to lessen the burden on Judges and staff so we can speed up hearings and hear more cases.  In civil work, we need to find a way to reduce adjournments and get more cases listed and resolved.  

Almost every day I hear from Judges in the criminal courts that the advocates could do more to make sure the court staff have the right contact details the day before and that they would be helped by more in writing in advance.  However challenging this might be, it is in our interests as it will help smooth through cases and get more dealt with.

And of course in crime there is an inevitable difference between new cases, where solicitors will find it very hard to obtain instructions between police station and PTPH, and cases which have been long in the lists.  The former category are the ones where CPS is desperate to avoid putting resources into case preparation if there might be a guilty plea.  The latter are where we could perhaps list all trials for a FCMH on their due date, so minds are concentrated and there can be a judicially approved “crack” if at all possible.  Floaters could all be allocated to a Judge in advance for pre-reading and given a fixed slot for the same purposes… this might help some cases get done and make the CJS wheels turn just a fraction less slowly. We have to do everything we can to clear this backlog for when the courts do reopen properly, whenever that may be.

Finally
Many of you will know someone who has been seriously ill or has died during this epidemic.  All of you will be worrying about family and friends, and struggling with the economic consequences.  

Whether you are walking on grey pavements, or anywhere else this weekend, keep looking out for each other and I hope you remain well.

 
Best wishes,

Mark

Mark Fenhalls QC
Leader of the South Eastern Circuit

Leader@southeastcircuit.org.uk
07711675229
Copyright © 2020 The South Eastern Circuit, All rights reserved.

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