Last night I was joined by almost 200 members of the Circuit in a Zoom seminar with three of our Resident Judges.  I am enormously grateful to HHJs Rosa Dean, Chris Kinch QC and Martin Edmunds QC for giving up their time to speak and to answer questions over almost two hours.

It was a genuine pleasure to see so many faces in such a large virtual mess.  Everyone who attended has said they found it useful and a pleasure and we will look to replicate the exercise both in crime, but also in civil and family.  

The Executive met yesterday and will now meet every two weeks for the foreseeable future on Thursday afternoons.  But do not wait that long to raise anything that is on your mind.  My email inbox and everything I hear in every meeting makes it starkly obvious what pressure you are all under; none of us are under any illusions about the personal and collective fears that haunt our days and nights.  Talking to someone may help and the very least I may be able to reassure you that the Bar Council, Circuit and SBAs are doing everything we can to make your concerns heard and to win the arguments.

I am not going to replicate or rewrite the work being done by the Bar Council.  I urge you to read the update emails and to follow the links.  Amanda Pinto QC and her team have been relentless in pressing your case in every possible way, to assist Chambers and individuals.  I would however like to give you
one example of the critical evidence based work they are doing.  This sort of work is critical and has a real impact on government thinking.

Technology and the Cloud Video Platform and Increasing Court work loads 
The CVP is a very welcome and much needed improvement on current systems and HMCTS is to be applauded for the remarkable job it has done in the last four weeks.  I had my first experience in a “virtual training room” last Monday morning and it is an impressive product, infinitely better than SfB.  I have been discussing a training program for the SEC over the last day or two and I hope we will be able to start this next week so that we are ready as the technology is rolled out.

There is no good reason why the CVP could not be widely deployed across all jurisdictions during the current crisis.  The first fully remote trial in the Magistrates Court was concluded on Tuesday.  It was used successfully for several sentences in Leeds Crown Court on Wednesday.  I understand a 4 week trial in the Family Division began yesterday, with expert witnesses to give evidence remotely.  A colleague in chambers was able to have a conference with HMP Durham from home yesterday.

Please read this letter from two of our Presiders, Mr Justice Edis and Mrs Justice Whipple today on CVP and related matters.  I am very hopeful that HMCTS will be able to publish much fuller details of the roll out next week.  You may hear it from the Bar Council or CBA, rather than from me, but that does not matter.  What matters is that we help drive forward the use of this technology as quickly as possible.

But while I tell you this because in theory it will help enormously, we have to bear in mind that capacity is going to be difficult for a while.  Another colleague reported this morning that his solicitor's attempts to get a video con at HMP Pentonville all week have resulted in an appointment for 9
th June…  the PTPH is on Monday.  We need far more silver bullets.

When will trials recommence? 
The court service has a problem.  Those staff who are at work are perhaps 1/3rd of a service that has been cut to the bone in recent years.  I know we are enormously grateful to those dedicated ushers, clerks and court managers who have been soldiering on in court rooms in difficult times.  The shortage of staff adds another level of complexity to the capacity challenge we face in the Courts.

We are a profession that wants to work.  We do not want handouts or more debt.  We want to earn money and pursue our vocation.

At the moment county court trials have all but stopped all over the country.  It seems to me that the problems of paper files and staffing can and should be overcome and that there is no good reason why they cannot begin again.  I do not believe that one party should effectively have a veto over proceedings moving forward and we need to find a way to limit adjournments even in these difficult times.

We all welcome the announcement of the Judicial group looking at restarting trials.  Many of you have asked who is representing the profession?  The answer is the Chair of the Bar and the CBA and the rest of us are feeding ideas in through them.  Amanda and Caroline will be letting you all know what they can about the objectives and remit of this group when they can.

Our discussion last night inevitably touched on this topic.  As you would expect from 200 barristers, there were a lot of differing opinions.  The discussion matters enormously as none of us have a complete answer or a monopoly on wisdom.

Such consensus as I detect so far can perhaps be summarised like this:
  1. No one wants radical departures from our trusted and valued system if it can be helped.  We all want the jury together, but safely spaced;  most want to be in the same space if possible.  
  2. We want the court rooms where we return to work to be clean and properly equipped with what PHE recommends.  Many of us would be happy to have the sort of temperature checks that seem to have been an important component of controlling the spread of the virus.
  3. Different courts have different physical spaces and transport links.  What might work in Preston or Chelmsford might not in Inner London – we can all see that one size does not fit all.
  4. We must urgently work out what can be safely done in the current court estate to run a trial as closely as possible to the pre-Covid model as possible.  The right cases might benefit from a much wider use of s28 powers.
  5. But we can see that we might be living in this world for months, if not years, before a vaccine is available.
  6. So if the current court estate can sustain no more than a trickle of trials, then we all want to look further afield to options involving other buildings and spaces.
  7. And we are prepared to think carefully about the use of technology for some parts of the trial.  CVP might help an elderly defendant willing to participate from home?  It might be deployed in a multi-handed case, particularly if the defendants would choose that rather than wait months for a trial?
This debate will continue.  Put your thoughts in writing and I look forward to hearing from you.

To those of you who have either lost someone, or know someone gravely ill, we all send you our best wishes and support.  

Best wishes,


Mark Fenhalls QC
Leader of the South Eastern Circuit
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