As I typed the first draft of this blog, I was waiting to find out what the amendments to the Health Protection (Coronavirus) Regulations have in store for us – and feeling a little envious of those in Wales who already knew. Their amendments, coming into force at 4pm on 11 May, were published (so Westlaw tells me) at 18.44 on the same day.  I hope nobody was in breach during those 2 ¾ hours.  As of Wednesday (the amendment Regs having been laid before Parliament at 09.30) garden centres in England are back.  Some readers will be more excited about that than others.

You may have read in previous editions of BarTalk and in communications from the Chair of the Bar, that the Bar Council has a working group which is examining ways of restoring the effective functioning of the criminal justice system during the current crisis.  I chair that group, working with the Bar Council’s senior leaders, the Circuit Leaders, the Criminal Bar Association (CBA) and members of the Bar Council’s Law Reform, Legal Services and Young Barristers’ committees. 

We held our first meeting on 2 April and have met at least every week since.  Members of the group have, over the past few weeks, been providing crucial practitioner input to the Jury Trials Working Group, chaired by Mr Justice Edis.  We have had to continually adapt to a rapidly changing landscape over that time, often on matters of real importance, which has made it very difficult to communicate an up-to-date position at any point – as soon as a statement is drafted, it is overtaken by events. 

Most of you will have seen the announcements made on Monday this week by the Lord Chancellor and Lord Chief Justice in relation to the safe resumption of jury trials in England and Wales and the further information provided on Tuesday evening by the Chair of the Bar and by your Circuit Leaders.  A great deal of work has been done to enable trials to resume, and to plan for new trials to start as early as next week. We recognise and appreciate that work.  When we started out on this project, a resumption in this timeframe seemed unlikely and it is great news that we are about to take this first important step.

However, one of the frustrations we (and I am sure you) have experienced is how little we have been able to tell you about the progress that has been made as we have gone along.  Since the Edis J group’s existence became public, we have consistently urged all those involved to provide greater transparency about the good work that is being done.  At the most basic level, for effective trials to occur next week, it is obvious that the participants need to know well in advance, and we are very pleased that this has now taken place. 

We understand the huge concern within the criminal Bar as to when and how you are expected to return to work.  Members of the Bar, and all court users, have the right to be reassured that proper consideration has been given to their safety. We will continue to urge greater transparency on the part of those conducting these essential safety reviews – concerns could, we think, readily be addressed by giving more information about the measures that have been considered in restarting jury trials and we will continue to press for this.

We would also stress that we believe these developments, welcome as they are, can only be a small step towards the resumption of a fully functioning criminal justice system. Whilst the requirements of social distancing remain in place, it is inevitable that the current court estate will not be able to deal with the backlog of trials.  Members of the group are giving detailed consideration to the use of alternative buildings, including former court buildings which have been closed and other options, such as the use of office-type accommodation for fraud trials and the construction of temporary courts in other vacant buildings.  It will be necessary for all involved to think creatively about the problems we face and for the government to provide proper funding for innovative solutions such as these.

The health of the criminal Bar (in both the physical and financial senses) is, and will continue to be, at the heart of our work.  There will inevitably be teething troubles as work is resumed and any serious issues need to be communicated so that they can be resolved promptly.  We welcome input from practitioners. The views expressed directly to the group via our dedicated email address [CriminalJusticeWG@BarCouncil.org.uk] and through the Circuit Leaders and the CBA frequently inform our discussions and approach.  Keep them coming, and please, be reassured that the work is being done to get you back to work, safely, as soon as possible.

Iain MacDonald is Chair of the Bar Council’s Restarting Criminal Justice Working Group and the Bar Council’s Law Reform Committee.