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The South Eastern Circuit
Leader's Update

AGM
The Circuit AGM takes place (remotely) on 18th November at 6pm. 
Please let Aaron know if you would like to attend. There have been a record number of nominations for the Executive Committee elections and I am very grateful that so many people are volunteering their energy and enthusiasm to help the SEC.
 
Health and Safety in the Courts
Just over a week into second lockdown, we can see that the courts continue to function this time around.  But there are challenges everywhere, every day.  We are all under pressure to work and earn.  The average age of a criminal barrister is now over 50.  We are an ageing cohort with all the problems that brings – a debate for another day.  But right now we face greater health risks as a consequence.  Many of us (particularly senior juniors) have done very little good work for months and are desperate to get back to court.  We are entitled to see that the courts, the cells, the public areas are as safe as they can be.  So if you have any concerns about cleanliness, please raise them with the relevant Building Champion. If you find problems with PPE /compliance anywhere in a court building, cells or otherwise, let me know and I will make sure your complaint reaches the management who will do something about it.
 
I repeat what I said two weeks ago about the Cells.  I am told that 

  • Custody staff will now wear PPE whilst in the custody suite. This will be required at all times with a few minor exceptions (e.g. if their rest room is sufficient in size to enable adequate social distancing)
  • Custody visitors will also be required to wear a face covering (unless exempt) at all times while in the custody suite
  • Custody staff will also be mandated to wear PPE whilst in the dock within the court room, unless specifically directed otherwise by the Judge 
  • Prisoners will be encouraged but not mandated to wear a face covering (intended position but not yet confirmed awaiting final policy decision)
But it is not just about other people.  It is about your contribution. 
Some of you will have had friends who have caught Covid and suffered long term lung damage or worse.  For the sake of others, it is critical that each and every one of us do our “bit” by wearing masks and observing social distancing.  If you do not, the blunt truth is that your actions may derail a trial, or worse close a court and prevent a large number of other people from earning a living, to say nothing of the disruption to the lives of those affected by the collapse or postponement of cases.  So please, please follow all the guidance aimed at preventing the spread of Covid-19, which includes 
this from HMCTS:  “court users must wear masks in all parts of the building except courtrooms or jury rooms”. I am hearing reports from Resident Judges of barristers not abiding by this rule – please make sure you do so unless you are exempted.   
HMCTS has today confirmed the requirement to wear masks applies to robing rooms.
 
You may be aware of the disruption to trials at Maidstone where a number of positive Covid results were reported during the last week.  HMCTS and the Judiciary are taking this extremely seriously and I gather PHE was on site yesterday to inspect and review the position.
 
Everyone has been able to see the substantial increase in trial listing through October and November.  This week, for the fourth Monday in a row, more than 100 trials were listed on the SEC.  Nationwide, I am told that HMCTS achieved its goal of having more than 250 crown courts ready for trial by the end of October.  An enormous amount of work has been done to permit the justice system to function.  Please do not squander it.
 
Crown Court Listing:  Remote vs in Person
The following principles to guide individual listing decisions have been agreed by Resident Judges on the North Eastern and Western Circuits.  I have invited our Presiders to consider them with our Resident Judges.  I cannot promise anyone that these will necessarily be adopted but they make sense to me.  
  1. Trial advocates must attend trials in person; 
  1. Where a defendant is required to attend in person any hearing at which it may be necessary to take instructions in order significantly to progress the case then the instructed advocates will also be expected to attend in person (obvious examples are PTPHs, sentencing hearings, PTRs and triage hearings); 
  1. Where a defendant attends a hearing by CVP then the instructed advocates may also attend by CVP unless their physical presence together at Court is likely to facilitate the effective management or resolution of the case.  Please note that, if advocates are attending by CVP they will be expected to have obtained full instructions from their client and communicated with their opponent in advance of the hearing;
  1. Attendance by CVP should be the default position in any hearing that is administrative in nature, regardless of whether the defendant is required to attend (for example mentions, compliance hearings, directions hearings).  However, if any instructions are likely to be necessary (for instance when re-setting dates) then advocates will be expected to have obtained such instructions and communicated with their opponent in advance of the hearing; 
  1. Where the attendance of the instructed advocate is essential to the progress of the case, and that advocate is unable to attend in person as a result of another Court commitment in another Court centre, than attendance by CVP may be permitted on application, to be determined on a case by case basis.
  1. With the exception of trials (see 1. above), attendance by CVP will always be permitted for any advocate who is shielding or who, for other proper medical reason, cannot attend Court in person.
Yesterday I was called by a Resident Judge who was concerned about the number of cases he had listed for trial this week that were not effective for one reason or another.  Whatever the rights and wrongs of these cases, plainly we all need to focus on making sure all our cases are ready for trial.  And if they are not ready to make sure we have told the court before they are called in.  I know it is deeply frustrating (to put it mildly) to do hours of work for cases that might not be listed when convenient to us.  We continue to urge the Judiciary to take as much account as it can of our diaries, given the unpaid time we put in to preparing cases.  This tension is going to remain through much of next year as the backlog grows and lists stack up.
 
On the subject of backlogs, even with the improved listing, I understand that the backlog continues to grow - each week the “R number” in the Crown Court reveals more cases are still coming in than are being dealt with.  Add in six months of very little work between March and September and this problem is going to endure.  It all just illustrates the vital point that Crown Court capacity must be expanded in 2021.
 
The Annual Bar Conference “Forward thinking: Bar of the Future”
The Conference takes place online over four days, beginning with afternoon and evening sessions from Wednesday 18th to Friday 20th November and culminating in a full day programmed on Saturday 21st November.  The Bar Council team has put together a terrific programme; and for those who reminisce about Woolworths, you can pick and mix the sessions that pique your interest.  Please take a look and sign up.  For more details and to book your place, 
click here.
 
Justice Select Committee and Evidence from LCJ on 10th November

Watch for yourself here:  Two questions and replies worth noting:
 
Chair: Are arrangements there for staff/judges etc to be tested regularly?
LCJ: Not routinely or regularly. Currently if someone needs to be tested they are tested. Has spoken to LC about the possibility to enhance testing and to make it quicker. The concern is to avoid any interruption in case. The difficulty is to arise in long cases where it needs to be stopped half way to enable isolation
 
Chair: Is any work being done to ensure trial participants will receive priority access to the vaccines?
LCJ: The news of viable vaccine is very recent and I haven’t had any discussion with anybody about preferential access. Criminal trials shall definitely be considered
 
Civil Recovery Plan 
Last Monday HMCTS published COVID-19: Overview of HMCTS Recovery for Civil and Family Courts and Tribunals.  You can find it 
here. Please let me know if you think it reflects reality and what more could and should be being done to improve listing in county courts and tribunals in particular.  
 
Crown Court Digital Case System
I am very grateful to HHJ Martin Edmunds QC who has alerted me to various development in the DCS.  To pick out a few highlights…  the “big news” is that from 16th November 2020, disclosure is going onto the DCS in new cases created on DCS.  There will be two new sections.  They work just like current sections, so no additional training is needed:  
 
“Unused Material- Disclosed – Notices and Schedules” 
This will be the place to find the non-sensitive schedule(s), disclosure notices and Disclosure Management Documents (but not Sensitive unused schedules).  This will be accessible to judges and parties.

“Unused Material – Disclosed” 
This will be the place to find the underlying disclosed material together with a second copy of the non-sensitive schedule (for convenience).  In multi-defendant cases there will be separate sections for separate defendants.  This section will ONLY be accessible to the parties and NOT the judge.  This is necessary for data protection reasons, and because, under the CPIA, it is not the job of the Judge to review that material. If a party wants to show an item to the Judge, they will have to download it and upload it to an appropriate section such as “Trial documents” or provide it in some other way.  Where information to be disclosed is highly sensitive the prosecutor may choose to make the disclosure in another way.

I gather that work is at an advanced stage to put confiscation proceedings on the system.  Over the years many have asked whether agencies other than the CPS can use the system.  For non-CPS prosecutions, I am told that “proof of concept” work is being done with the SFO.  Similar work is planned with the Insolvency Agency and Environment Agency.  Likely next in line will be HSE and Local Authorities.  The key thing is that a prosecutor will have to be accepted as an “approved user” before they can use the DCS.  

If there is a DCS glitch please report it.  If you encounter a problem – or the DCS does not appear to be working as you expect – please report it to 
crimeitsupport@justice.gov.uk identifying the specific case and the problem.  The team really will look into it and you can expect them to report back to you.
 
WiFi at Court
PCU WiFi is changing and will no longer be available in HMCTS buildings from 15th January 2021. They are upgrading the authentication service which will provide:
  • Secure form of authentication
  • No need for password renewal (currently every 90 days)
  • No need to re-authenticate when moving between sites
  • Further alignment to best practice.

All PCU WiFi users will need to register for a GovWiFi account before 15th January 2021. Simply text 'Go' to 07537417417 to get connected. This is a one-time registration. You will then be able to connect wherever GovWiFi is available. Further information on how to connect and manage your installation is available at the GovWiFi website.
 
Finally
I wish you all a very good weekend.


Yours,

Mark Fenhalls QC
Leader of the South Eastern Circuit

leader@southeastcircuit.org.uk
Announcements:

Law Care - Life in the Law research:

Law Care have launched a ground breaking research study, ‘Life in the Law’ lifeinthelaw.org.uk and have asked  the membership for assistance.  

Law Care want to encourage as many people working in the legal profession, those in training, legally qualified and support staff, to take part, as the results of this study will pave the way for determining what we can do as a profession to improve the support available to people working in the legal profession by enhancing our understanding of the issues that affect mental health and wellbeing. The data will help us all drive long lasting cultural change in legal workplaces to benefit both the present and future generation of lawyers and staff. Law Care expect the results to also form the basis of an academic paper.
 
Your support in helping to promote the study would be really appreciated. 
 
To give you an overview of the study, please see the following links, a FAQ document will be uploaded and circulated once prepared.  


Updated Snaresbrook Crown Court S28 Protocol:
Accessed here

 

PCU WIFI in HMCTS Buildings:
PCU WiFi is changing and will no longer be available in HMCTS buildings from 15th January 2021. HMCTS are upgrading the authentication service which will provide:
  • Secure form of authentication
  • No need for password renewal (currently every 90 days)
  • No need to re-authenticate when moving between sites
  • Further alignment to best practice.

All PCU WiFi users will need to register for a GovWiFi account before 15th January 2021.

Simply text ‘Go’ to 07537417417 to get connected.

This is a one-time registration. You will then be able to connect wherever GovWiFi is available.

Further information on how to connect and manage your installation is available at the GovWiFi website.
 

Digital forensic material - an academic study:
A collaborative research group led by Birkbeck’s 
Institute for Criminal Policy Research (ICPR) is launching an important new project to better understand the challenges and opportunities associated with ‘digital forensics’. The project will look in particular at evidence derived from posts on social media platforms and communications on messaging applications, and at how such evidence is used in the investigation and prosecution of offline, interpersonal offences.

The study is funded by the Dawes Trust, and has a number of elements including case studies of investigations, as well as an online survey of CPS staff, police investigators and law enforcement, and criminal lawyers.

You can find more information about the research here.

Members are invited to participate in this short survey looking at how social media material is used in the investigation, prosecution, and defence of criminal cases. It will take no more than 5-10 minutes, and the results will feed into our research project on the use of forensic digital information in the Criminal Justice System. This original and critically important research project is being conducted by Birkbeck University, Perpetuity Research, and University College London. It is completely independent from all CJS organisations and your responses will be recorded anonymously. The results of the survey will be made publicly available​, and we hope it will help make the policing and prosecution of cases with significant social media elements fairer and more effective. Interested?
Please access the survey here should you wish to participate.

Wellbeing:

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

A copy of the this recording can be accessed here

'Resiliance'
Tuesday 1st December 
17.0
0 - 18.30
Guest Speak
er: W S Mitchell MA PHd Dip Clin Psych FBPS MRSM, Consultant Clinical Psychologist
The session introduces resilience as a set of skills making up a balancing system to keep us around the optimal zone in the energy and effectiveness curve;  focused on personal resilience: maintaining the physiology of energy; creating some balance inside the existing areas of flexibility, working effectively so as not to get overwhelmed, identifying levers of control for focused working and maintaining positive challenge based mind-sets about work.

Full details and to book

SEC and Bar Mess Events:

EDI Forum - 'The Equalities Act 10 Years On':
Monday 16th November
18.00 - 20.00
Keynote Speaker: Karon Monaghan QC 
The event will be followed by a Q&A session and it will be possible to ask anonymous questions to better foster open discussion.

Further details and to book your ticket 


Christmas Concert:
'Celebrate Christmas with two access to justice charities at the annual Advocate and LawWorks Christmas Carol Concert' 
Tuesday 15th December 2020
18.30 - 19.30 

Full details and to book


Our 2021 SEC Education Programme is currently being prepared with further details published shortly which will include (please do not ask to book just yet):
 
SEC/Diversifying your Practice:
2021
 
SEC/Silk Applications (part one):
2021
 
SEC/Silk Interviews (part two):
2021
 
SEC/CPS Form Filling:
2021
 
SEC/Recorder Exam Guidance:
2021
 
Dame Ann Ebsworth Memorial Lecture:
Spring 2021
 
SEC/ Pupils: 
Autumn 2021

RASSO Refresher:
Autumn 2021


Judicial Q&A's (3 separate sessions):
2021
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