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The South Eastern Circuit
Leader's Update
So much new vocabulary this year…
We have grown accustomed to the way news outlets are used by the Government to make policy and shape our behaviour.  Announcements are floated several days before policies are announced, trying to soften / prepare / nurture “public opinion”.  We are all looking nervously ahead to wonder what restrictions might be imposed over the coming weeks and what impact that will have on our health and economy, and above all how the courts will cope… 
 
Testing – A Season of Mists and Mellow Fruitfulness ahead?
Hardly.  Imagine that HMCTS manages to deliver on time and 250 trial courts are available by the end of October, do they have the staff to list and run jury trials in each of these courts?  And how are we going to keep trials on the road through this season of high temperatures, coughing and sneezing?  The vast majority of crown court trials take about three days and can no doubt lose a juror here and there.  But big cases are quite another matter and the resources put in to trying them must not be squandered.  Only today I was told about a three week kidnapping case that lost two jurors to covid testing problems and another to serious illness.  It hung by a thread as it concluded with just 9… These problems are emerging now, before the cold and flu season begins.  Witnesses should only have to give their evidence once; defendants are entitled not to have to wait even longer for their (re)trials.  HMCTS – the state – has a role to play.  And if it does not get testing right, an enormous amount of hard work will be put at risk.  The suggestions set out below are not new; others may have much better ideas.  The problem has been repeatedly drawn to the attention of  HMCTS and we hope a plan is being devised.
 
It should go without saying that someone in HMCTS needs to be responsible for the testing process in order to keep courts up and running.  One would hope that s/he should be reporting to the person who is ultimately in charge of court capacity.  Someone in each court centre needs to own their part of the process and suggest a solution.  Perhaps someone in each court has already mapped the testing centres nearby, so they know how long the journey time is?     
 
It is perhaps to fanciful too imagine that the justice system is second in line after health to enable us to have access to any fast test machines?  A
Department of Health and Social Care announcement on 3rd August claimed to have ordered 5,000 machines capable of delivering results in 90 minutes.  Did anyone in HMCTS think to put in a bid for even a dozen that might be placed at the country’s biggest courts?
 
At the very least, why not set up a system that pre-allocates a series of QR codes to the Resident Judge (or court manager) in each court centre?  The QR codes, for anyone who does not know, are the piece of magic you require to be allowed access to the drive in centres to get a test.  These QR codes could then be allocated to people with appropriate symptoms to go and get tested immediately - and ideally the codes allocated to the crown courts would be guaranteed results within the day.
 
Or have a nurse on standby with spare tests to help in each big city?  One nurse could surely cover the Old Bailey and Southwark for example, reducing the risk that some of the most important longer trials get derailed?
 
Or find out where there are local facilities that offer private tests with guaranteed quick turn arounds?  Even if these cost in the region of £100 or so, wouldn’t it be better for HMCTS to pay for such tests rather than risk a retrial?
 
Listing:
More on civil listing in the county court next week I hope.  For the moment back to crime.  Early in the dark days of lock down I watched The Wire.  In the brighter days of summer I turned to Courtserve.  Not so nourishing for the soul.  But the good news is that a July average of 25 or so jury trials listed each day (starting or part heard) has risen to over 60 at the start of this week.  Much is being changed in many courts – screens, furniture and in some cases portacabins.  Providing HMCTS delivers what it has said it will deliver by the end of October, then we will have substantially more capacity than we do today.
 
We should all applaud the fact this week that more court room have opened for trials at Basildon, Harrow, Kingston, Inner
London, Oxford, Reading and Southwark.  Lewes opens another court room in Brighton on Monday.  All steps in the right direction.  Over the coming 2-3 weeks I hope that you see far more opening as Perspex arrives in courts and retiring rooms: ‘HMCTS plans to install plexiglass screens in 28 courtrooms and 26 retiring rooms this week ... This is in addition to the 48 courtrooms and 6 retiring rooms where plexiglass screens have been installed so far across the Crown Court estate.’
 
Assuming we reach the promised 250 courts, we will have physical
 capacity that exceeds the dark days of 2019, when restricted sitting meant so many court rooms were shuttered, possibly by as much as 25%.  If the courts are fully used, then this is a substantial increase that should begin to help rapidly, at least for trials of 4 or fewer defendants.  All indications are that “sitting days” will not be an issue.  We all know the remaining problems and will keep pressing for greater numbers of video endpoints in prisons, more staff on the ground and in list offices.  If you want to ask HMCTS some questions yourself, you can register for this online event on 23rd September.
 
One thing I have noticed is that only two or three court centres on Circuit are regularly listing floaters/ backer trials.  I have previously suggested that backup cases be listed more frequently behind starters, provided of course space at court permits.  This would inevitably increase footfall, although perhaps not to any great extent if witnesses remain on standby at home.  The argument is that the best triage in the world is no substitute for the availability of a jury to concentrate the minds of the parties.  In similar vein I have asked that wherever possible non-trial listings should never delay the progress of a jury trial.  This was important before Covid, as I learned as a juror, but has become increasingly important while jury time is such a precious commodity.
 
I am very grateful to our Presider, LJ Edis who has been exploring these issues with our RJs.  Each court has its own approach to listing and to maximising its use of the available space.  This often involves extensive “triage” of cases so that there are a number of backups ready at short notice to be listed if cases crack.  Inevitably there will be gaps – this has always been the case – but the Judges are wholly committed to listing as many cases as they safely can, of course following the PHE guidance and advice as it applies in their courts.
 
Thanks also to HHJ Karu at
Inner London Crown Court who has published this plan for listing arrangements in the autumn.  We often fail to thank those who work so hard in the most testing of circumstances.  Every single one of us knows that the Judges and court staff work in the same crumbling, unsatisfactory buildings that we do, and that they are no happier about it than we are.  
 
Covid Operating Hours:
I visited Snaresbrook last Monday, observing the COHs court.  The court could not have done more in advance to select a trial that might stand up.  The case had been triaged to the max, including a conference at court last week to permit instructions to be taken and a defence statement to be filed.   It is clear that making this pilot work is extremely demanding on the court administration, and of course this intense application of resources would have a similar impact if it was always available for listings at more conventional times.  As far as I could tell the advocates had done everything right in advance.  Notwithstanding all this impressive effort, time was requested to show the defendant the CCTV again.  Shortly afterwards he pleaded guilty.  Was day 1 a success?  It depends on who you ask and how you measure it, and that is a debate for another day.  The court staff were painstakingly recordin
g all the relevant information so it can be evaluated in due course.  

But the fact is this man would have pleaded guilty on whatever day he was listed for trial with the reality of a jury looming.  The t
ime for prevarication had ended.  The converse will also be true.  There will be many cases where the prosecution hopes that their witnesses still have the appetite to give evidence, but when the case is listed, reality will bite and they will not attend.  Tragically, many witnesses and complainants will have been deterred by the delay endemic long before Covid made it so much worse.  Years of RUI, waiting for phone downloads and forensic evidence, complete disclosure … remember all that?  But more delay is not the answer for anyone.  And this ultimately is why I will keep asking for more backer trials to be listed.  

And before I leave Snaresbrook it has been brought to my attention that there has been some ill-founded criticism on twitter about the fact the afternoon COH shift was empty today.  I am asked to point out by the court that a serious dental problem needed emergency treatment and the court could not sit for good reason.
 
Remote vs In Person:
Long before we were threatened by this autumnal wave of rising infections, many courts have struck a sensible balance between remote and in person.  Many Judges have been accommodating and balanced in their approach to this subject.  Whenever possible most of us want to take advantage of the real benefits of technology and use it in a proportionate and sensible way for the least contentious work.  There is a broad-ish consensus amongst the professions that advocates should generally appear in person for PTPHs, trials and sentences.  Equally most of us think that pretty much everything else can be done remotely if a little effort is made.  Above all we think that in compliance hearings, where the court wants to hear from trial counsel, that it is less sensible to demand that someone else attends in person when trial counsel, part heard somewhere else in the country, could help (far more effectively) by CVP.  
 
I know why some courts dislike remote hearings.  They think that some advocates have not sorted their broadband or microphone settings, which sometimes need to be reset every time the operating system is updated.  They think that hearings can take longer.  Some Judges think that such links are trickier for their staff to set up. But this approach flies in the face of the many, many cou
rts where these hearings operate extremely well.  And as we are all enjoined to keep working, while reducing social contact and unnecessary travel and footfall, is it not sensible to move as much as possible to CVP, even if it requires a little more flexibility, thought and planning in some list offices? 
 
And who amongst us wants to be that substitute who wastes an evening reading papers, travels for hours to court, losing money, all for the pleasure of being told that trial counsel should be there…?  Of course trial counsel had made arrangements to attend via CVP, from another court where he was part heard.  But no Judge was prepared to consider the request and the list office answered emails with a generic “no, we don’t do that here”. Perhaps the turbulence we face in the weeks ahead may change some minds.
 
Finally:
Please do
register with Aaron to attend the SEC zoom Q&A on s28 roll out on Tuesday next week.  HHJ Peter Lodder QC and HHJ Sally Cahill QC have kindly agreed to speak and answer questions.  They both bring an enormous amount of experience to the table and I am very grateful to them both for agreeing to join us.  The session will address the practical challenges of how this will work across our Circuit.
 
As ever, I wish you all a good weekend.

 
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. 


Bar Council Elections 2021:
Elections for nominations to the 
Bar Council 2021 can be accessed here.  
Closing date - 21st September.


Nominations for the 2020 Bar Pro Bono Awards are 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.

Call for Volunteers - Inner Temple Online Advocacy Weekend 2020:
The Inner Temple traditionally runs three residential weekends a year for its student members, each weekend focusing on a certain niche area of the law. These weekends typically take place either at Cumberland Lodge in Windsor or at Highgate House in Northamptonshire and are popular Qualifying Sessions amongst the student body.

Given the current situation, the weekend scheduled for 27th -29th November 2020 will be held online, rather than at Cumberland Lodge, but will otherwise be going ahead with all its usual advocacy sessions and lectures. The weekend is being led by Master Alistair McCreath and Abimbola Johnson (25 Bedford Row) and is entitled Modern Slavery and the Modern Slavery Act.

Inner Temple are keen to invite group leaders for this event who are, ideally, Inner Temple members with experience in this area of law (although this is not essential). We are particularly interested in hearing from volunteers from BAME backgrounds. The traditional role of a Group Leader is to help the students to prepare for the advocacy exercise they are set to perform before a judge on the Sunday, to lead preparation sessions on the Saturday and to assist students generally throughout the weekend. In an online format, you would be split into groups from the Friday night (around 6.30pm) and put back into these groups at various points throughout the weekend, to allow you to get to know your group well.

If you would be willing to act as a group leader, do let Inner Temple know at your earliest convenience (using email addressjarmfield@innertemple.org.uk)

BSB Guidance to Pupils:
Impact of Covid-19 on pupillage (September 2020)

Access the document here.

ICCA Governors - Chair and Vice Chair Recruitment:
The Inns of Court College of Advocacy (ICCA) is seeking to appoint the ICCA Chair of Governors and Vice Chair (SBA’S). Closing date is Friday 30th October 2020.

Full details and to apply.

Wellbeing:

Parental Talk with Noel Janis-Norton:
Recorded on 22nd July 2020

A copy of the this recording can be accessed here
SEC and Bar Mess Events:
 
Calmer Parenting & Teaching:
'Teach your child to read with my fun and proven method'
September online course
A SEC discount has been applied to this course


Full details and to book


SEC/S28 - Q&A - Virtual Lecture:
Guest Speakers: HHJ Sally Cahill QC and HHJ Peter Lodder QC
Tuesday 22nd September  
18.00 - 19.30

The access link will be issued on the day of the session. 


Please register your interest to attend here.
 
SEC/Recorder Exam Guidance - Virtual Lecture:
Postponed to 2021
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.

Diversifying your Practice:
Postponed to 2021
 
SEC/CPS Form Filling Virtual Lecture:
Postponed to 2021
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.
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