With barely a blink and not much sleep, the halfway point of my year as Chair of the Bar has passed. The last fortnight has been eventful, if frustrating:
Attending court in person: We have been inundated with examples of judges insisting on in-person appearances for short hearings. ‘Return the brief if you don’t want to come’ is the mantra of the week. It is at odds with Government guidance, and the Bar Council will not stand by whilst members of the Bar are put at risk. We have pressed the judiciary and made our own sensible suggestions. We continue to try and get the right balance in court.
The backlog in justice: We support the need to clear the backlog. We support innovative ways of increasing capacity. We have proactively suggested many recovery measures to Ministers, officials and the judiciary. The MoJ must first assess the capacity likely to be achieved by maximising court buildings, adding court buildings, more staff and increasing robust technology for effective remote hearings. It must encourage sensible listing practices, in collaboration with the judiciary.
The ‘Recovery Plan’: In a Written Ministerial Statement to Parliament yesterday the Lord Chancellor outlined the Government’s proposals to get the justice system operating fully. HMCTS set out the plans in more detail. The data and modelling are crucial: what was the Lord Chancellor relying on when he told the Justice Select Committee last week that reducing the number of jurors would reap 5-10% extra capacity? What figures does he rely on this week? Without seeing the modelling (which we have repeatedly requested), we cannot support proposals that will significantly impact all court users, including barristers.
Extended operating hours: The Lord Chancellor must not extend court hours when there is no accurate data evidencing the output of that step; particularly when the MoJ’s independent evaluation of the Flexible Operating Hours pilot has not been produced (due months ago, now promised for the autumn). No court would come to a conclusion without reliable evidence and nor should the Government. We do not accept weekend sittings equals ‘creative listing’.
Jury trials: The MoJ is actively considering tampering with the right to jury trial. We are vociferously against it. It’s worth remembering that the Government never suggested addressing the extortionate backlog it had created pre-Covid by doing away with or reducing juries. We have been told there is no reliable data and we have been shown no modelling to demonstrate a need for constitutional change. Though they now seem to be backtracking on some ideas (e.g. scrapping juries in some Crown Court trials), others, such as reducing juries to seven, still seem to lurk. With Circuit Leaders and the CBA we have suggested many ways the Government could reduce the backlogs without undermining the credibility of our justice system, whilst complying with social distancing. We hope they listen.
June survey of Heads of Chambers: I mention some grim headlines:
- Despite chambers making sizable savings and full use of the furlough scheme, the Bar is under existential threat: 75% of chambers have had their court work reduced by over half since the pandemic, because hearings were suspended, adjourned or courts refused to hear cases remotely.
- 53% of chambers have already suspended or are reviewing taking on pupils for 2020/21.
Judicial meetings: This week I have had meetings with the Lord Chief Justice, the President of the QBD, the Chancellor, the SPJ, the DSPJ and Coulson LJ. We have been urging them to give national guidance on (i) listing cases with due regard to Covid-19 related issues faced by advocates; (ii) criminal listings; and (iii) improving listing in the county court (where numerous unnecessary adjournments have usurped substantive, remote hearings). I hope the judiciary will take forward all these positive suggestions from the Bar urgently.
Autism research survey: The Autism Research Centre, University of Cambridge are looking for barristers who have defended an autistic individual, to complete an anonymous survey on how autism is viewed within the criminal justice system. It closes on 11 July.
#LegalPride: Pride celebrations (from afar) are now fully underway. I hope you have seen my short video message urging everyone to get involved in celebrating LGBT+ in the justice system and more broadly. This year it has to be virtual but, next year, I hope we will be back on the streets, having a party whilst promoting diversity and inclusion at every turn!
QASA through the back door? We responded to the LSB’s Call for Evidence on ongoing professional competence. Is this QASA through the back door? There is no objective evidence that standards drop as barristers become more senior; nor is there evidence of widespread lay client dissatisfaction with our services. On the contrary, there is evidence that the Bar takes professional competence extremely seriously and voluntarily invests a huge amount of time in ongoing professional development. Further regulatory hurdles are unnecessary and will simply add cost for our clients. Read our full response here.
“Space workers” vs. barristers: I have written to the Home Secretary and the Lord Chancellor again, asking them to exempt barristers returning from working overseas from the requirement to self-isolate for two weeks. Which counts more: astronauts or access to justice? Who joins Formula 1 mechanics? You guess.
Whole Bar survey: Thank you to every barrister who has already completed our latest survey on how Covid-19 is affecting you. If you haven’t done it yet, please do it now! It is vital. It closes at 23:00 tomorrow (Friday 3 July). You can access the self-employed barristers’ survey here and the employed barristers’ survey here.
With best wishes to you all,
Amanda Pinto QC
Chair of the Bar