The South Eastern Circuit
Leader's Update
News below about CLAR, EOHs, s28 and Crown Court Capacity generally… 
You may already have read the Bar Council and CBA messages sent this morning.  Some of you will be angry that it has taken so long to reach this stage, others will be relieved that the process has started again. The CLAR process began back in 2018 and has been bedevilled by politics and delay. Timing aside no one thinks this is enough money – and the
Lord Chancellor acknowledges the position in his statement here.  Please read it yourself.  
One quotation of importance is this:

I have decided that the next phase of the Review should involve an independently-led review that will be ambitious and far reaching in scope, assessing the criminal legal aid system in its entirety, and will aim to improve transparency, efficiency, sustainability and outcomes in the legal aid market. It will consider working practices and market incentives and how these can drive efficient and effective case progression and deliver value for money for the taxpayer. Planning is in progress and I plan to launch it as soon as possible after Parliament returns.’
Some of you will immediately assume that an ‘independently-led review’ is a euphemism for the very long grass. We are assured this is not the case. I would hope the ‘planning in progress’ means that the civil service has gathered the findings of all the other reviews held in the last decade or more and that it will have clear timelines – say 3 to 6 months (?) - to complete its work, so that Treasury can be in a position to approve better funding for the CJS early next year.  
The Crime Recovery Plan?
For the third week running, nothing has been published, again. More cut and paste from last week’s update:  ‘Perhaps next week we will learn what the plans are, county by county, court centre by court centre ... meanwhile the waiting breeds uncertainty, and more anxiety and stress.’  Witnesses and complainants are forced to wait; defendants languish in custody and the public is ill-served.
Harrow & Isleworth Meeting on Wednesday
But thankfully we have two detailed recovery plans that have been published by Isleworth and Harrow.  You will see that September sees a substantial increase in the trial courts that are available in these two centres. Not nearly enough, but more steps in the right direction.  I very much hope that all RJs will see fit to publish similar documents setting out their plans.

Access the Isleworth plan here.

Access the Harrow plan here
We also heard from our Lead Presider, the recently appointed Lord Justice Edis at the Isleworth/ Harrow “skype-in”.  In summary he told the meeting that are 75 or so court rooms across E&W capable of holding jury trials.  This number should increase to around 100 by the end of August and to about 250 by end of November. This increase is a consequence of 1m+ developments - largely plexiglass and furniture changes. Obviously, old listed courts are more problematic.  No one seems to know how many trial courts were sitting in 2019.  250 courts may provide something  not far off the amount of work that the Courts were doing with all the sitting day restrictions. (In case any of you were wondering I understand that there are in fact 488 crown court rooms across the estate but no one seems to know how many of these were actually used for jury trials pre-covid.) However one views these numbers, it does mean a ‘broader stream of work as autumn wears on’.  It is hoped that it will be accepted publicly before too long that restrictions on Judges sitting days are a thing of the past for the foreseeable future.  
Such public clarity and candour is both welcome and hugely helpful. The hundred or so barristers and solicitors on the call were obviously relieved to hear all this said.    
Reading Crown Court and EOHs
Reading Crown Court will now also be testing "EOHs". I have been in discussion with the Resident, HHJ Norton about how this will work. Many of you will know that Reading was one of the first courts to start trials back in May. A combination of fortunate courtroom geography and an immense amount of hard work by the Judges and court staff mean that 3 out of the 6 Reading courts have been holding trials for some weeks now. I am delighted to be tell you that on or about 7th September further adaptions mean a fourth trial court will open.  This fourth court will run Reading's version of the EOH scheme from 21st September. They are likely to keep close to the Liverpool model. The three remaining courts will continue to operate on standard court hours.
In Reading, the EOHs scheme will be limited to short (3 day or less) cases. I gather that initially at least the focus will be on old bail cases that have been in and out of warned lists for several years. Wherever possible the afternoon shift will be used for cases where the witnesses are all police officers (bladed article, possession with intent, dangerous driving etc). It is intended that cases will be allocated to either mornings or afternoons and not move between the two “shifts” at short notice. It is hoped that lists will be published well in advance – not the day before - to assist all court users. Such steps should minimise inconvenience to all, and improve the ability of advocates to plan. Combined with using only one of four courts in this way, the potential harm to advocates who cannot work in morning or afternoon is mitigated.
EOH will be expensive and resource intensive for HMCTS to run – the fourth court will require 2 Judges, double staffing and a lot of work in the list office.  But for my part I see it as essential part of our rebuilding process to try this experiment in the hope that it will shift out of the system a large numbers of these smaller cases, freeing up the rest of the estate for the more serious work which can be heard in conventional court hours.  
We all know that fair and objective evaluation of the success of the experiment is crucial.  The sort of concerns the Bar regularly expresses are shared by Judges, court staff, outside agencies, witnesses, indeed everyone who works in the system. 

We remain in discussion with HMCTS as to how this evaluation will take place in all the courts across the country where one variation or another is being tried.      
Secondments. Many of you have raised concerns with me about the low rates of remuneration (pegged at level 2 and reduced from 2017). Last week I met senior management of the CPS and expressed these concerns. The CPS lawyers are under immense pressure as work floods in and recruitment of full time staff does not keep apace.  In probably every meeting I have had with the CPS since the start of April I have stressed the ability, flexibility and willingness of the Bar to help and asked for more charging advices to be briefed out.
Advocate Panels. A new online application portal for the CPS Advocate Panels will go live on Wednesday 26th August.
Please look here for details.
S28 – pre-recorded cross examination 
The Commencement Order was signed on Wednesday afternoon. I have not seen it but the likely (but I stress yet to be confirmed) courts are: Basildon, Canterbury, CCC, Chelmsford, Croydon, Guildford, Harrow, Inner London, Isleworth, Lewes, Maidstone, Snaresbrook, Southwark, Wood Green, and Woolwich. A number of these courts are setting up LITs; others are just participating in the London wide LIT. 
The FAQs published today in your second CBA update confirms the good news that s28 may be used on backlog cases already in the system. These old trials may well be the cases where it should be used first.  Instructions ought to be in place, disclosure complete, preparations advanced, witnesses will have waited for months or years already…  Look at your caseload and see if you think you can use it. Both sides will need to agree and there will need to be Judicial approval which is likely to be contingent on the right digital support being in place.    
HMCTS S28 Videos. These were made for Court staff and need updating, but you may find them useful / interesting. Please bear in mind that the new Commencement Order only permits use of s28 for vulnerable/ under 18 witnesses, not intimidated witnesses.
Making a recording
• Live streaming
Playing back a recording 
Viewing a pre-recorded cross-examination 

I hope the chaos and fallout of exam season is abating for most of you. And that you all have good weekends.

Mark Fenhalls QC
Leader of the South Eastern Circuit

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
Website: Email: or
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. 

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 

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.


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:

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.

register your interest to attend here.

Section 28:
An Evening in September
Further details will be announced shortly

Diversifying your Practice:
An Evening in September
Further details will be announced shortly

SEC/CPS Form Filling Virtual Lecture:
This Course will now take place in October 2020.
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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