News & Insights
The pandemic has brought about considerable changes in how hearings in criminal courts are conducted and what is expected of barristers. Nigel Lambert KC looks at the changing landscape of “virtual justice” and barristers’ working practices.
In January 2021, facing another lockdown, the Lord Chief Justice made it clear that “facilitating remote attendance” of all or some of those involved in hearings should be the default position in all jurisdictions.
Now, only months on, as more and more of us are vaccinated against Covid and our everyday restrictions are lifted, he has called for an increase in in-person attendance in the criminal courts. He sees it as “possible and desirable” where it is safe and in the interests of justice. Along with confirmation of the opening of seven additional Nightingale Crown Courts, he noted that “technology has many advantages, but, in some circumstances, it can have the effect of slowing down work”. He assured us that remote and hybrid hearings will still play their part “in managing footfall in courtrooms and public areas”, but at the same time he saw it as important to “maximise the throughput of work” and stated that the “interests of justice are wider than the circumstances of the individual case and include the efficient despatch of business in the interest of dealing with cases in all jurisdictions expeditiously”.
That latest announcement prompted a number of responses. Christine Agnew KC, the Leader of the South Eastern Circuit wrote to all Resident Judges urging continued flexibility. “Most” confirmed that their position had not changed. Bail applications, mentions and applications to fix will continue to be held remotely and, for other hearings, requests to appear by CVP will be considered fairly. James Mulholland KC, Chair of the Criminal Bar Association, recalled the Lord Chief Justice’s keynote speech to HM Judges on 28th July 2020 when he said about the greater use of technology: “there is no going back to February 2020… the idea that lawyers will be required to travel for an hour or two, wait around and then deploy arguments for half an hour before travelling back has now gone.” We can only hope so.
The pandemic has exacerbated, rather than created, a huge backlog of cases waiting to be tried. With the necessary restrictions in place, trials are slower and take longer. Cases are already listed well into 2023. Even short one or two-hander jury trials are taking longer than pre-Covid. Witness boxes have to be sanitised after each witness has given evidence. The air has to be re-refreshed. Conference facilities are very limited. Two court rooms are often required for every trial. The necessity to finish cases on time, whilst keeping all 12 jurors, has often meant sitting longer and later hours. I have recently experienced a judge not rising for lunch until past 1:45pm because the jury were promised an afternoon off during legal arguments. Counsel were given an hour for lunch but then had to sit until long after 5pm.
The Criminal Bar Association has sent a survey to its members, commissioned as part of its review of the problems facing users of the court system, particularly in the Crown Court. It is not focussed on Covid-based problems but one area does cover delay and listing changes brought about by Covid.
Significantly it comes hard on the heels of their four-week consultation process following the publication of their draft Wellbeing Protocol. They are not unrelated.
The pressure on the courts is huge. The pressure on advocates can be even greater. We all want to see our cases listed and tried but care must be taken to list cases sensibly and fairly. The wish of the Lord Chief Justice to “maximise the throughput of work” must not cloud the vision of those listing and trying cases. He expected that “remote and hybrid hearings would still play their part in managing footfall” because the number of outstanding cases has been significantly reduced by focusing on remote preliminary, procedural and sentencing hearings.
For that reason, remote hearings must continue to play their critical part. The more that preliminary issues can be resolved before the trial date, the smoother and speedier the passage of trials will be. Wherever possible, there should be the same trial advocate throughout and listing officers and the judiciary must aim to accommodate advocates and also, where appropriate, video link the Defendant from prison – with sufficient time built in for conferences before and after.
Further prosecution witness statements are being frequently served just before trial. As a priority, Defendants in custody must be guaranteed to be able to see their legal team via a secure video link at least once in the important week before trial.
Where Defendants are on bail, there seems to be no reason why they should not appear in a live link court from solicitors’ offices or from counsel’s chambers.
Clearly there will be times when Defendants in custody must attend court, particularly for trial and more often than not for sentence. Presently, once at court, it is no use expecting to see the Defendant in the cells for any significant time. More sophisticated facilities have to be introduced in all and not just some courts. Visiting the custody area after having to fight for a slot and go through lengthy security procedures is still the norm. Defence teams must be allowed to see their custody clients before and after court via secure video and telephone links.
Plainly things are moving forward to relieve pressure on the courts. But what about pressure on advocates? A balance must be struck. Health and wellbeing are important too and cannot be ignored when told that the “interests of justice are wider than the circumstances of the individual case and include the efficient despatch of business in the interest of dealing with cases in all jurisdictions expeditiously”.
Huge pressures are placed upon us and our time as advocates. But still there remains the view that we are some sort of automaton and the show must go on – no matter what.
Why is this particularly important now? Although we are encouraged to consider our wellbeing – and help and advice are offered – the vast majority of us still struggle on – perhaps too embarrassed or too proud to seek help.
As we move forward, much greater demands will be placed upon us all, as advocates, to appear before judges and see clients remotely, before and after court and sometimes during lunch adjournments. We will also be expected to see our other clients in custody remotely during those same times.
We may be working on many more than one case at a time. We will get bombarded via CJSM with amended and repaginated exhibits, witness statements and opening notes – sometimes received very late on the eve of trial – throwing preparation notes into disarray. No matter what – the court expects you to be ready to start on time and sit late to crack the backlog.
However, much as the courts want us to press on, you must ensure that you have time for yourself. The CBA draft Wellbeing Protocol is hugely helpful. It will offer us a particularly useful set of practical guidelines and some of them listed, in short below, can only add strength to any objection we might otherwise never have dared to raise with the court.
Of course, there will always be matters that are so urgent and serious that they will require immediate action and a response. Nonetheless, the draft Protocol forms a set of helpful stress-reducing ground rules.
Virtual hearings are here to stay although more technological solutions are still needed. The court system and advocates can only benefit from them. We will be expected to undertake them frequently. During lockdown, they have saved the criminal justice system from collapse. They will continue to do so. If properly managed, they should also go a long way to improving our wellbeing.
Richard Susskind, the technology adviser to the Lord Chief Justice, has warned that in technological terms, video hearings are “Stone Age stuff” and the ad hoc Covid system will be superseded shortly by asynchronous procedures, telepresence, virtual reality, blockchain and artificial intelligence. Be warned!
We are keen to “maximise throughput” and want to see many more productive remote preliminary hearings leading to effective trials. Whilst there are Covid restrictions, and even after they are lifted, let us encourage courts to receive more evidence remotely. At the same time, the courts must understand that our work is not limited to the courtroom. If listed cases are to run smoothly, we cannot be expected to sit longer hours in court, prepare cases very late into the night, conduct virtual hearings with other courts in other cases and always be ready to start at 10am or 2pm with the jury. There has to be flexibility; better time markings. The judiciary and the list officers must be more understanding of our reasonable professional commitments and our welfare as, together, we tackle the backlog of cases “expeditiously”.
Nigel Lambert KC has been recognised as “A leader in his field” and is ranked as a leading KC in “Chambers UK Bar 2021”. He is a Criminal Defence specialist with a particular emphasis upon very serious crime including large scale commercial fraud, money laundering, terrorism, murder, manslaughter and gangland killings. Nigel is the former Head of Chambers. He has sat as a Recorder in the Crown Court since 1999. He is a former committee member of Bar Council, Criminal Bar Association and South Eastern Circuit Gray’s Inn and is a Gray’s Inn Trained Advocacy Teacher.
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