Leader - Bulletin 22nd July 2020
Dear Fellow Circuiteers,
Whilst I am sure that we all remain frustrated at the slow pace of the ‘recovery’, it is also right that we should acknowledge some of the positive steps forward that the Circuit has taken in the last week.
On Sunday the Lord Chancellor announced that the North Eastern Circuit would benefit from two of the first ten ‘Nightingale Courts’. These are the product of a collaborative and proactive approach between the Circuit and the Judiciary.
The facility in Middlesbrough Town Hall will see the use of an existing Courtroom in that building for Civil and potentially family cases. This will have a benefit for Criminal Cases in that more space in the Combined Court Centre will be available once trials resume.
Similarly the use of Cloth Hall Court for BPC and Civil cases is a very positive step forwards. Not only will this free up considerable resources in the Combined Court but will also demonstrate that going forwards the real benefits in BPC cases having a permanent home outside the Combined Court Centre in order to grow that work on Circuit.
Other bids for space were made by the Circuit in the first round but have not yet been approved. We will be looking carefully at a second tranche of proposals for additional buildings and if any of you have suggestions then please do feel free to send them to me.
This week has also seen a record number of jury trials across the Circuit. Trials are now regularly running in Leeds, Bradford, Durham, York, Hull, Grimsby, and Sheffield.
Most of those Court centres are listing backing trials in addition to the listed trial and that is paying dividends as cases resolve and trial slots are not wasted. It is also consistent with the Circuit wide TRP protocol.
I am aware that in some Courts the backing trials are not listed on the same day as the fixed trial and are converted to mentions if the listed case stands up. I know that this places Counsel at a considerable disadvantage because you have to plan on the basis that the trial will start, prepare the case, and make arrangements to attend at the trial - often at significant cost to yourself arranging childcare - only to find that a miserly mention fee is payable rather than the TNP fee that should be paid. This practice also reduces the prospect of cases resolving and risks wasting slots when the fixed case collapses – as has happened frequently.
I have also had reports of cases being brought forward to fill trial slots with minimal notice and no regard to the availability of counsel, sometimes only a day after a later trial date has been confirmed by the Court. This is again inconsistent with the principles of case ownership and places you in a very difficult position, particularly given that childcare is not easy to come by at the moment for many of you. It does not seem unreasonable to ask that listing office respect the difficulties faced by Counsel wherever possible and do not to force cases into the list at short notice unless of course the parties consent.
One of the issues concerning all of us at the moment is the prospect of Extended Operating Hours being imposed upon the Courts in all jurisdictions as HMCTS seeks to ‘sweat’ the Court Estate.
The notion that we need to introduce such measures is a mystery to many of you who will have looked at the Court lists and seen that there is not a drop of perspiration in sight! Many Courtrooms are standing empty on a daily basis and it is quite clear that we are not maximising the current estate. We of course appreciate that there are particular difficulties behind the scenes in terms of listing more jury trials because of the limited space for jury assembly, but HMCTS must work at pace to overcome these difficulties by utilising other areas – in or outside the Court building – to enable more trials to be listed.
These particular problems do not apply in other jurisdictions and we ought to be encouraging the use of the current estate – and fee paid Judges - before concluding that extended hours are required to get through the work.
It is also difficult to accept that extended hours are required unless or until we are able to measure capacity properly with the current Court estate. The modelling of HMCTS in this regard is inadequate we need access to the data before any sensible assessment can be made. That is difficult when they continue to refuse to share data with us, particularly in the Civil jurisdiction. Anyone would think that they didn’t want to acknowledge the scale of the problem.
I should add that of course we have no idea what ‘extended hours’ actually means. If it meant that non trial work would be conducted between 9 and 1 Monday to Friday – or even that trials would run between those times, there may be some of you who would not object to those hours. Unless or until we see both evidence of the need for extended hours (and I don’t mean it’s cheaper than the alternatives of opening more courts and paying fee paid judges to sit in them) and some concrete proposals of how they might operate we cannot sensibly engage with this as a concept. You need only be assured that the Bar Council, SBA’s and the Circuit Leaders will not stand by if proposals are ultimately made that would be discriminatory and would undermine the ability of many of you to remain at the Bar.
I should finally observe that we hear all of the time from HMCTS that the Judges are in support of extended hours. I don’t believe that for a moment – certainly no more than I believe that the prison van can arrive before 8 a.m.!
This is a short update before I take a couple of days out to go and see my Mum for the first time since Christmas. I will be working remotely and any issues that arise please continue to send them to me. I try and answer every email – even if I cannot always give the answer that you wanted!
I will be in touch with a more substantial update next week.
In the meantime best wishes to you all