This crisis has hit everyone and every family. In our “world”, all parts of the Bar are suffering, but some parts are weaker and more vulnerable than others to the financial shock caused by the lock down. In all areas of work we seek a route out, hoping that we can navigate through with a mixture of science and technology, and initiative and drive from all those who work in and around our courts and tribunals.
The last three weeks have seen some extraordinary innovation in the courts. On that subject can I commend to you this short Guide which will help you connect a client via Skype for Business over his or her smart phone. I am really grateful to the three members of Circuit who have put so much hard work into this and other tech issues we confront.
But as we pause, perhaps, over Easter there is a sense that we have done some of the easier things. We have shut down the system very effectively and we have shown that it is in theory possible to operate parts of a justice system remotely. This thought provoking anonymous article by a Judge in the family court is particularly interesting. But even if we take a little comfort from some remarkable technical achievements – for example reports of a successful three day trial in the Court of Protection using the outdated and rickety Skype for Business platform – the parlous condition of the court and prison estate has been laid bare for all to see. So as we move to the next phase and are all thinking of that route, considerable challenges lie ahead. More of this below.
None of us are impressed with the level of support for the self employed publicly funded Bar offered by the Government. The justice system is critical to the healthy functioning of society and we need more action. You have only to read the Chair of the Bar’s update yesterday to see what the Bar Council continues to try and do to improve our lot. Please take the time to read the Chair’s message and the links.
Many of you will be contemplating a bleak few months ahead. On an individual level you may have given notice on a flat and moved in with family, you might have sought a three month pause in mortgage payments and been briefly relieved by Government proposals in relation to VAT and income tax. But then you will have thought forward and realised that deferral does not help much when you might be forced to spend what money you had been able to put aside to pay tax in the summer, and you do not know when you will be able to start earning again.
Hopefully your Chambers Management Committees will have been poring over cash flow projections, considering which staff to furlough, how to agree and negotiate wage reductions, rent holidays, what expenditure can be cut… Please give every bit of support you can to Heads of Chambers and Treasurers engaged in this difficult and painful process. Everyone is under huge pressure and needs positive contributions and ideas.
But inevitably you will also all be thinking “How long is this going to last? When are the trials going to start again? When might we be back to normal (whatever that may look like)?”
The short answer is no one knows. The science evolves and we are doing our best to estimate and plan. The Bar Leadership is hugely grateful for all the suggestions that filter through from SBAs, Circuit Members and directly to the C19 Working Group email: cwg@BarCouncil.org.uk . This is read daily and really matters.
Above all please take ten minutes or so to complete the survey the Bar Council issued on Tuesday.
The evidence gathered from the Heads of Chambers survey last week strengthened our position in negotiations on all fronts.
We will all be hugely grateful for the BBA initiative announced yesterday, supported by the Inns of Court. Next week I will write again about the support the Circuit hopes to offer.
The BBA is only permitted to help barristers who have held a paid brief. This means first six pupils will have to look elsewhere and the Inns, like all of us, will be very concerned about our pupils and how we should support current and future candidates. Please make sure that those running pupillage in your sets have thought through the latest from the BSB. May I express the personal view that chambers all do everything possible to honour the pupillage offers already made for this Autumn.
Meanwhile one way of looking after current pupils might be to use the lock down as an opportunity to work out and teach how to run mock trials remotely using Teams or Zoom or similar? Improved technology is coming to the courts and the more training and practice you can do now, the better everyone from our pupils to ageing silks will have adapted to new advocacy techniques.
Why is the criminal Bar uniquely vulnerable?
The Covid-19 crisis has struck the criminal Bar at a time when it is has been significantly weakened by a decade of reduced public spending on the criminal justice system. No one will need reminding about the erosion of publicly funded fees over two decades. But what has been less well discussed is the damaging drop off in work over the last few years. In 2011-12 the CPS prosecuted some 894,000 cases across all courts. By 2018-19 this had dropped 45% to 494,000 cases.
Over the last few years both the CPS and the LAA have become considerably quicker to pay most fees. This was, of course, welcome, but it means that aged debt is probably at a historic low and that in consequence chambers and individuals are far more vulnerable to the cessation of trial work, which may make up 90% of the income of “pure crime” sets.
Even sets which might have had a cushion in the bank (and not many do) are confronting a precipitous drop in income from May onwards. Everything possible will have been billed and we simply cannot survive on a diet of PTPHs, occasional pleas, bail applications and sentences. We must find a way back to restarting some trials at least as soon as possible.
I repeat all this not to lecture those who already know these painful truths, but because those from whom we seek help and support, read and think about the public messages that come out of the profession.
This applies to all areas of work. I turn to jury trials below, but first those of you looking at civil and tribunal lists across the country will know that this affects you too.
In civil courts everywhere, reports reach us of decimated lists. One problem, it seems, is that the parties are being given the option of adjournment. It is not “rocket science” to see that in a civil case there is always likely to be one party who would be delighted for a case to disappear off into the long grass. Add to this the huge reduction in HMCTS staffing levels and Courts trying to cope with paper court files and the problems are not easy to overcome. But if we can change the presumption that adjournment is a default option and the parties can prepare the relevant e-materials for the Judges, maybe we can begin to turn the tide. Please keep sending in evidence and practical suggestions.
Tribunals throw up similar problems and evidence is emerging about IT horror stories. Again, please keep writing in and describing what is happening in your area of work so that we can apply pressure at the highest levels.
Jury Trial and the Common Video Platform (“CVP”)
CVP is something that will come to the fore in the days to come. It may help considerably. The hope is that remote trials will start in some Magistrates Courts by the end of this month. There is no technical reason why it could not be used in the Crown Court (and in other courts/ tribunals) but the practicalities present considerable challenges. I am delighted that testing what might be possible has already begun with some Crown Court Judges. The Bar will continue to do everything it can to support such initiatives.
The Bar Council, CBA and Circuits are testing models and ideas for the way in which we might restart some jury trials. We would like to hear your ideas.
A personal view, informed by a very interesting period I spent doing jury service at Kingston Crown Court a couple of years ago, is that you need the Judge and jury to be in one building together, albeit the jury could be in a separate court room to achieve appropriate physical distancing. Of course the courts must be deep cleaned, but this could start now. I am sure that witnesses could give evidence remotely, as could defendants, although some might wish to opt to attend in person. Advocates could do the job remotely, but I suspect most would prefer if possible to be present.
If appropriate (antibody) testing becomes available I see no reason why it should not form part of jury selection. If some of us have already had C19, then perhaps we can begin to work sooner rather than later and help keep chambers and colleagues afloat while the whole system begins to recover.
What do you think? All ideas welcome to firstname.lastname@example.org.
The Liverpool Way?
Can I ask that you read about this Guidance note that has been produced by Liverpool Crown Court? I would welcome views on whether you would like this to inform listing practices across the SEC. There are all kinds of medium and longer term changes many of us would like to see that require legislative changes and it is hard to see much prospect of that in the next few weeks. But in the interim, can anyone improve on the Liverpool approach? All ideas welcome.
Whether you find comfort in puzzles, bread baking, house-party, Easter eggs, (re)watching The Wire or simply tidying something, I wish you and your family and friends good health and some respite over the weekend.
Mark Fenhalls QC
Leader of the South Eastern Circuit