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The South Eastern Circuit
Leader's Update
You will all have read the Chair of the Bar’s email this afternoon and the link to the Bar Council statement that reads in part:  ‘The Bar Council resolutely supports the principles of justice and the rule of law and reaffirms our commitment to the promotion of equality, diversity and inclusion both within the profession and the community we serve. A strong Bar is one that reflects the society it serves.’.

This was said in the context of the appalling events that are playing out across the United States.  But it also caused me to reflect on how the final sentence applies in our legal world.  In recent years, the Bar has made huge progress in improving diversity across the profession.  But the pandemic threatens to reverse this, with hugely damaging long term consequences. 

Earlier this week Public Health England published a paper entitled ‘
Disparities in the risk and outcomes of COVID-19

The starkest finding in the executive summary reads thus:

An analysis of survival among confirmed COVID-19 cases and using more detailed ethnic groups, shows that after accounting for the effect of sex, age, deprivation and region, people of Bangladeshi ethnicity had around twice the risk of death than people of White British ethnicity. People of Chinese, Indian, Pakistani, Other Asian, Caribbean and Other Black ethnicity had between 10 and 50% higher risk of death when compared to White British.’

I do not know if anyone really understands why this is so, but whatever the reasons, have any of you reading who are white thought about how afraid your BAME colleagues may be?  We are all concerned about the health of our friends and loved ones, but the risks are not falling equally.  I do not have any answers, but this is an issue which belongs to all of us and we ought to be discussing.
 
The Lord Chief Justice on TV

On 22
nd May the LCJ gave evidence for an hour and a half to the Justice Select Committee.  I am not aware of any transcript, but it is well worth watching.  Lord Burnett answered a wide range of questions.  He began with the telling observation that the Judiciary has found it difficult ‘to get reliable data’ from HMCTS, which makes planning and decision making far more difficult.  He spoke plainly about the consequences of years of underfunding of the justice system and his constant efforts to persuade the politicians to properly fund the administration of justice.  He was blunt about the burgeoning backlog, with jury trials increasing at about 1000 per month while the courts were not sitting.

Rapid Review: The Impact of COVID-19 on the Civil Justice System 


It is no surprise to read in the report published today that ‘the move to remote hearings has been swifter and easier in the senior and commercial courts where resources are greater and levels of legal representation are higher and more problematic in the county court.’

Nor that, for example, ‘respondents reported that the backlog generated by the current stay in possession proceedings would pose an enormous challenge for the civil justice system. The urgency of establishing a working group to devise solutions for managing this backlog representing all stakeholders involved and including lawyers with experience of working at the housing court duty scheme, was repeatedly emphasised.’

The report exposes the lack of comparative data from HMCTS in chapter 9 – perhaps the sort of thing the Lord Chief referenced in his evidence.  It is also no surprise to discover that the wealthy and represented fared much better than the poor and unrepresented.  As with the comparable Rapid Review into family work published a few weeks ago, it is vital that we all remember these lessons each time we hear that digital might be an answer.  It may be part of the answer, but it is no substitute for face to face justice.

The CLAR review: “Accelerated Asks”

The CBA has published its response, which you will have read.  The SEC response will be finalised this weekend.  But as you know the accelerated asks deal with three discrete areas.  We need to close this first part of the CLAR review that was suspended in March so we can move onto stage 2.  The criminal Bar faces the greatest threat to its survival that any of us can remember, caused by the cessation of trials.  The HMG proposal is a small but welcome step in the right direction.  In summary our response can be made shortly:
  1. We are pleased to be paid for reading unused material, but the proposed rate is derisory.  The process for claiming something more than the standard unused fee must not be subjected to an onerous assessment scheme. 
  2. The proposal to improve payment for paper heavy cases is welcome but does not go far enough.
  3. The proposal to raise payment for cracked trials is welcome but does not go far enough.
Of course none of this amounts to very much if we cannot get enough courts reopened…

Courts Reopening

In his evidence Lord Burnett spoke of his hope that all court centres would be open by the end of June.  This will hopefully lead to significant improvements in civil justice, but it does not mean jury trials everywhere. Some of you will have been contacted by list offices and instructing solicitors across Circuit, enquiring whether your jury trial might be ready to go later in June or early July.

I have one request.  Several of you have mentioned to me about small adjustments that could be made at court that might make a trial possible. So if you have an example about chairs or tables that need removing, or glass that needs replacing, but that expenditure on these minor changes has not so far been authorised, then please send me the details.

Next week I will be visiting Inner London to look at the plans they have in place for reopening.  On Tuesday 16
th
 at 5pm I will join the Resident Judges for the Crown Courts at Isleworth and Harrow who will host an on-line event to share information on present and future operations and answer questions from court users.  If you want to attend, please contact Aaron.

But every single one of us knows that these developments, while welcome, make no significant difference to the exploding backlog, which is so deeply damaging to the interests of witnesses and defendants, to public confidence in the CJS, and to those of us whose livelihoods depend on the trials system starting again.

It may not be much comfort to you yet, but rest assured that the Bar Leadership continues to do all it can to press HMG to open alternative court spaces.  The current estate simply cannot cope.  We have made specific and detailed proposals about spaces and planning for these projects.  If you have any suggestions you want to make, email them to this address; 
ACTCHub@justice.gov.uk, please making sure that you copy me in; leader@southeastcircuit.org.uk.  I cannot go into much detail here, but I end this week feeling more positive that the MoJ understands the scale and urgency of the problem and is actually doing something to plan a way through.   

I hope you all have good weekends


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. 


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

SEC and Bar Mess Events:

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/Crime - Remote Working - Judicial Advice:
On a Thursday evening in June
The details are still to be finalised with bookings opening later this month.

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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