This was not a year that some of us expected to survive.
In April of this year, the Bar Council was reporting that nearly two thirds of self-employed barristers had seen a reduction in work as a result of the coronavirus pandemic and subsequent closure of courts. At the criminal bar, as many as 88% of respondents expected they would not be practising within a year.
I am, I remind myself constantly, one of the lucky ones. In the early phases of the pandemic, when trials and other lengthy commitments began disappearing from my diary, I still had work that I could fall back on in the shape of document reviews and Inquiry work which could be done remotely.
But even with that, and the relief provided by the Income Support Scheme for self-employed people, I have still felt the keen anxiety of wondering how my practice will be warped, and my earnings potentially affected, by the necessary actions taken to curb the spread of this disease.
Of course, there is also the risk from the other direction. If barristers and other legal professionals are, rightly in my view, to be treated as key workers, then the business of entering court and needing to navigate its usual affairs in safety-compliant conditions had to be considered.
Many of us will have found that some aspects of this new regime, such as conducting non-critical pieces of court work via video-link, are not entirely unwelcome, especially for mentions or other hearings where some advocates may have found, in the old days, they spent more time and money reaching court than they would gain from doing their jobs while there.
I for one would not mind at all if some of this, at least, continued after the pandemic, with courts exercising their discretion appropriately on whether in-person attendance is critical to progressing the case. But there are broader concerns about the dysfunction now boiling to the surface of our criminal justice system which demand more urgent attention.
By now it is trite to observe that this pandemic has exposed a number of fault-lines in our existing civic and societal infrastructure. In some cases, especially in our court and prison estates, they have been ripped wide open. Complaints that advocates have been raising for years about inadequately resourced services, under-staffed facilities, persistent leaks and (sometimes literally) crumbling court structures have only become more acute as we have become more thinly spread during the pandemic.
I have written before about the risks posed to prison inmates and staff in a pandemic situation. As time has gone on this has manifested in an increasing number of Judges adding “consciousness of the situation with the coronavirus in the prison estate” to one of the standard reasons many advocates will now hear at the outcome of a successful bail application, or when a suspended sentence order is imposed.
More often, however, the complaints from advocates, judges and defendants alike seems to come from the way that necessary safety measures have caused a system already plagued by delays to simply grind to a halt. Delays in progressing matters to trial were inevitable when jury trials were first paused in England and Wales, and then began to go ahead under strictly limited, coronavirus-compliant conditions, but this does not mean we can be complacent about the threat they pose to public confidence in the justice system.
I have participated in a grand total of one trial this year, under these new conditions, in Peterborough Crown Court. It was a relatively straightforward case involving only a single civilian witness and defendant, but even that required formidable levels of planning and forethought from the judge and court staff to make sure that the jury were distancing appropriately, and that bringing them to and from the courtroom (with documents prepared and disinfected ahead of time) did not cause unacceptable delays to the process.
I am bound to say that, in the circumstances, everyone involved conducted themselves admirably, and I express my thanks to the court and its staff for how they handled the situation. But it would surprise me to learn that, under such challenging circumstances, there were no significant slippages or other system failures.
Colleagues of mine have reported being staggered to find otherwise quite routine trials pushed back to as late as 2022, wondering how they will explain this to their clients or to other parties. When we have known for a long time that “justice too long delayed is justice denied”, we are all now haunted by the spectre of witnesses and evidence critical to a trial simply dropping their support or disappearing, or defendants enduring agonising waits for their hearing.
How we deal with this growing backlog is still another debate. I have certainly been in situations where judges have addressed the prosecution frankly on whether or not, faced with relatively minor offences and the likely delays they might face in a post-pandemic justice system, it would not be more in the public interest to simply let the case go. I can foresee a near-future of serious discussion about a period of reduced sentences, or even amnesty for certain offenders, as we ask probing questions about what our system is for.
It is often observed that members of the Bar are the worst advocates in their own cause. But it is my sincere hope, after a year that has pushed many of us to points where we thought we might break down completely, that the cries going up from those in the criminal justice system, for an estate that is fit for purpose, are magnified even more going into 2021. Even if a vaccine works as effectively as we all hope it will, there are challenges ahead for all of us that existed before this pandemic, and will need to be faced courageously after it is done.
To my friends and fellows across the Bar – stay safe and stay well. I’ll see you next year.
Tim Kiely manages a general criminal practice at Red Lion Chambers. He is also currently instructed on the Undercover Policing Inquiry.