“There’s just no simple answer as things are at the moment.” Barristers admit to being hindered in their work as the courts are finding ways to adapt to life with Covid.
By: Daniel Mardle
Tags: Barrister, Criminal Justice, Legal System

“There’s just no simple answer as things are at the moment.” Barristers admit to being hindered in their work as the courts are finding ways to adapt to life with Covid. Daniel Mardle Nov 13, 2020·9 min read

For Andrew Thomas QC, the head of Lincoln House Chambers, Covid-19 has been the most devastating thing to happen to the criminal justice system in modern history, “pretty much ever” he claims.

“It’s had more of an impact than the Second World War, or the First World War, had on the criminal justice system.

“We have never before ground to a complete halt in the way that we did for the first seven weeks of lockdown.”

Barristers have found themselves in an uncomfortable situation since the outbreak of Covid-19. After enduring a decade of austerity that has seen cuts to every corner and side of the legal system making their work quite difficult, the closure of courts during lockdown, and the knock-on delay in trials while the pandemic continues (and any barrister will tell you that lack of court time to proceed with a case is a continuous obstacle in their line of work) has had the shocking effect of placing the livelihood of many in jeopardy.

A recent Bar Council survey reported that 31% of criminal barristers will not be in practice in chambers within three months, 87% will not last six months and 88% will not last a year.

Barristers can sometimes earn less than the minimum wage, which isn’t a happy thought for those just starting out carrying a significant student debt. With courts closed or struggling, their source of income is in jeopardy.

So why is the fate of barristers livelihoods so important?

In a standard Crown Court trial it will be the solicitors job to prepare the client for court, while the barrister is instructed by the solicitor to provide specialist advice and then represent the case in court.

As the anonymous legal expert and author of the book The Secret Barrister: Stories of the Law and How It’s Broken puts it, the relationship between a solicitor and a barrister is like that of a general practitioner and a surgeon; the former will diagnose the problem so the latter can proceed in the best way they see fit in order to apply the appropriate ‘treatment,’ as it were, by questioning or cross-examining those called in to court and presenting evidence to the jury, before making their argument that will lead the jury to making that vital decision at the end.

The majority of barristers are self-employed, and more than often feel obliged to take the first case that lands on their desk and it will be the Crown Prosecution Service, a publicly funded prosecutorial office, who will instruct a barrister to prosecute those accused of an offence.

According to Mr Thomas the limited work taking place in the crown court by mid-July was only a small percentage of what they would normally be undertaking and looks set to stay that way for the foreseeable future.

Mr Thomas was also concerned with the impact on those on remand awaiting trial as the current situation has hindered many people’s ability to prepare for trial, with face to face contact in prisons prohibited during lockdown and other forms of communication such as video-link severely limited.

“It is devastating.

“In terms of the legal professions it’s a real threat going forwards” a sombre Mr Thomas said.

“For barristers chambers the impact is very variable. The impact for individual barristers varies. Some people’s income is not affected at all. Some people are at the moment receiving only a fraction of their normal income.”

Mr Thomas was also fearful that with a large number of his solicitor colleagues who had been furloughed might consider taking redundancy if it was offered.

Mr Thomas explained that normally 15 to 18 trials a week would be taking place across the two crown courts in Manchester and one in Bolton. But there were none for the first two and a half months of lockdown and both Minshull Street and Crown Square courts were currently only able to hold one at a time, as opposed to normally eight in a week.

“It will take years for us to catch up on that backlog” Mr Thomas said, admitting how hard it is to find a way around the current problem when a trial relies on a large number of people in rooms together for a any length of time.

“It’s going to take us a long time to recover.”

A delay in the first few weeks of lockdown as everyone in the profession was stunned and could only wonder what would happen next was great cause for anxiety; for professionals, defendants and witnesses alike.

“There were cases that were ongoing that had to be abandoned altogether,” Mr Thomas added, “and for a number of weeks there was a lot of uncertainty and it became apparent that there was no contingency plan designed to deal with this situation.”

“But as time has gone on what’s become apparent is that there was no possible solution other than what’s now been put in place to allow us to do the limited number of trials that we are.”

Mr Thomas thinks extended hours are likely to be introduced, and that the proposed ‘Nightingale’ courts by the government will happen.

The government has since announced its intention to open 10 of them across the country starting in July, yet only three of those were for practising criminal trials. Eight more were announced in September.

But Mr Thomas believes setting them up will be easier said than done and they’ll only be able to deal with a limited number of cases that way, and setting up court in a new building will require a large number of staff that the court doesn’t have.

In 2018 it was reported that 6,500 courthouse jobs were due to be cut by 2022 in a plan to deliver savings to the justice system while in 2019 it was revealed the number of agency workers in Britain’s courts had risen by two thirds over three years to offset the loss of permanent staff.

Some barristers aren’t sure just how feasible the solutions proposed in keeping the courts running really are and yet, truth be told, it looks incredibly hard to find even just a simple solution, let alone a magic one that can resolve all the problems the criminal justice system is facing in these difficult times.

With a lot of courts temporarily closed during lockdown and the Bar Council having to furlough 20% of its staffand reduce its budget in April to prepare for a fall in income over the next year, it’s become a worrying time for some in the profession.

Trials were placed on hold, leaving barristers in a position to only conduct simpler tasks from their homes such as bail hearings and conferencing with clients, some of whom are in prison or on remand, and can only be reached via video-link as prison visits were curtailed when lockdown commenced and, at the time of writing, show no sign of being resumed in the immediate future.

But while communicating with clients by video-link may sound like a reasonable alternative, the necessary facilities in prisons have to be in place yet are very limited, and with so many people waiting in line one could be in for a long wait to speak to someone inside.

Alistair Webster QC, also from Lincoln House Chambers and 33 Chancery Lane, revealed that he wouldn’t be able to speak to his client in HMP Preston for another two months as there are so few booths available.

“It’s the classic thing of underinvestment” Mr Webster said.

According to Mr Webster the lockdown hasn’t prevented barristers from being able to provide advisory work to the majority of clients but it will be a long time before service returns to normal.

He cited the fact that hearings for those already in custody are taking less precedence over those for people who aren’t.

Furthermore, for safety measures courts are currently restricted to dealing with cases only involving one defendant. Mr Webster said a case he is working on involving 11 defendants recently had its trial date fixed for May 2021, but he doesn’t think it’ll be possible to manage under normal circumstances if social distancing measures are still in place by then and said it might be necessary to split such cases up and prosecute in tranches, which will only add to the queue of cases.

“There’s just no simple answer as things are at the moment,” Mr Webster says.

Mr Webster stated that he doesn’t have a problem with the idea of judge-only trials, an idea suggested by Geoffrey Robertson QC to dispense with a jury and substitute with a judge and two magistrates that’s been met with controversy, provided it’s the defendants choice to have one, but stressed it would be unacceptable to try enforcing them.

On the idea of extended opening hours during the evening and weekend Mr Webster was less than enthusiastic, believing the government suggested it without appropriate consultation and that it posed more difficulties, even calling it discriminatory for those with children and reliant on childcare if courts are starting as early as 8am and running till 7pm or at weekends.

“It’s going to cause significant adverse problems to the profession and the public and it probably isn’t the answer to the issues that we face” Mr Webster said.

Under normal circumstances courts operate from 10:30am, but it isn’t possible to transport defendants in custody there any sooner as that would rely on the prison service, who work by the same hours, also operating earlier than usual.

Furthermore, asking jurors, witnesses and judges, who are likely to have similar commitments, to arrive at court as early as 8:00am and leave 12 hours later is seen by many in the profession as more than a lot to ask for.

Huw Edwards, a barrister from Exchange Chambers in Manchester, was equally sceptical about the idea.

When he isn’t working locally, his work often requires him to travel to Preston, Leeds and Sheffield as well so he was resistant to the thought of extended hours when he says barristers work long enough hours as it is, including weekends, to prepare cases.

“If you start having six or seven day working weeks…. there’s simply not the time to prepare the cases which is at least half of the work” Mr Edwards said.

Yet the suggestion posited by the Lord Chief Justice, Lord Burnett, to reduce the number of jurors from twelve to seven, as was done in World War 2, was a more welcome one.

Mr Thomas said he wouldn’t be against it, while Mr Webster felt the same though not without some caveats.

“The difficulty is that we all know what the government’s like and if they see they can save costs by trying to make that permanent they’ll seek to do so.”

He added “It’s very much a second-best thing but to try and help out in the current circumstances I can see that it could be acceptable.”

As to whether or not it would accelerate the speed in which cases are dealt with both Mr Thomas and Mr Webster were divided. Mr Thomas didn’t believe it would, though said it would require more courts to be sitting at any one time, while Mr Webster thought it might, and may not require quite as much staff as usual to manage such situations.

The two barristers were further divided on whether or not there might be a pressure on the courts to try and meet targets even under the current circumstances.

Mr Thomas didn’t believe there was. Only a pressure to resume work as soon as possible which he said everyone wanted to do.

“Absolutely everyone in the system is committed to doing what they can to get trials operating again,” he explained. “It’s bad for our clients, it’s bad for the public, it’s bad for individual lawyers who can’t work at the moment.”

Mr Webster, on the other hand, thinks there could be pressure on those administering the courts to push as much work through as possible. In particular, he felt the Crown Prosecution Services might be thinking about whether or not to accept pleas for lesser offences in the hope of getting more cases through the courts and reducing delays for defendants and victims as well as taking in to account the reduced availability of prison space, which would mean releasing more people on bail.

But as well as stating that the judiciary’s independence means they can’t be subject to targets, he emphasised that the running of the courts has to be driven by providing the means to achieve the desired results, meaning appropriate funding.

While Mr Thomas believed the pandemic could likely have a negative effect on the outcome of many cases, he admitted there was no way to be certain, which only leaves a question mark hanging over in the meantime.

“It is going to adversely affect a lot of cases. A lot of cases that are under investigation at the moment are being faced with delays and with uncertainty about how [or] when, if ever, the trial might take place and I think that’s going to affect some of the decisions that are taken about future cases.”