Sexual Misconduct; Time’s Up at the Bar

Since October of last year I have been using my Twitter feed to highlight examples of sanctions passed by the Bar Tribunals and Adjudication Service (BTAS) that are in my view, unacceptably lenient. Through doing so, it soon became clear that my views are shared by others.

For those unfamiliar with recent decisions, they include:

BSB v CT, a practising criminal barrister who sexually assaulted two separate young Barristers. One woman was assaulted 5 times and the assaults involved pulling her underwear aside and grabbing her breasts and bottom. He was suspended for just 3 months and made to pay £900 costs.

BSB v DW, a 34 year old practising criminal barrister and qualified pupil supervisor who sexually assaulted a young Barrister at a chambers Christmas party on three separate occasions. He did not know her very well. The assaults included him gripping her around the neck while making sexual comments in her ear, later smacking her bottom with such force that it caused her pain, and later grabbing her by the hips and dragging her backwards onto his lap. The last assault was stopped by a clerk who gave evidence at a contested hearing, as DW denied all three assaults, claiming to have believed she consented. Having been held a poor witness who lacked credibility, the tribunal found against him, but nevertheless allowed him to continue to practise, imposing a reprimand and a fine of £6,000 together with £3,600 costs.

BSB v DTH, an unregistered barrister and then Government Legal Department senior lawyer who ‘upskirted’ a lone female with his mobile phone camera after following her for some while. Having been convicted in the criminal courts and made the subject of police and probation supervision following his inclusion on what is colloquially known as the sex offender’s register, he was not disbarred but suspended for 6 months and made to pay £1,200 costs.

BSB v MR, an unregistered barrister, was convicted of fraud in the crown court following the making of fraudulent expenses claims. He received a 26 week custodial sentence suspended for 2 years. He was suspended for 3 years by the tribunal and made to pay £600 costs.

BSB v FE, an unregistered barrister, was convicted of s.20 GBH in the crown court and received a 24 month custodial sentence, suspended for 2 years. He had battered a hotel receptionist with a hockey stick, striking him twice in the back and once in the face with sufficient force as to break his jaw. He did not report his conviction to his regulator at the time, only disclosing it to the SRA when he later applied to become a Solicitor. The tribunal suspended him for 3 years.

Compare the above with the following cases:

BSB v MB, a barrister who failed to cooperate with the BSB by failing to reply to correspondence when he was already suspended. He was suspended for 3 years concurrent to his existing suspension.

BSB v PM, a barrister of 37 years’ Call, who forgot to renew his practising certificate and appeared twice in family proceedings without a certificate in 2019. He was suspended for 4 months and made to pay costs of £1,200.

BSB v DW, a barrister who accepted a £110,000 loan from a client and failed to advise the client to seek independent representation in a situation where there was a conflict of interest. He also misled two other clients about work done. He was disbarred and made to pay costs of £1,200.

BSB v BH, a barrister who engaged in a lengthy, heated campaign of ‘trolling’ online. She was suspended for 2 years (later reduced to 1 year for clemency, when she became terminally ill and death was imminent).

The Code of Conduct

Sexual, dishonest or violent misconduct contravenes core duties 3, 5 and Rule rC8 of the Bar Standards Handbook:

Core Duty 3 ‘You must act with honesty, and with integrity’.

Core Duty 5 ‘You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession’

rC8 ‘You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity and independence.’

Sanctions Guidance

At present the BTAS sanctions guidance for sexual misconduct reads as follows:

The starting point for minor offences of inappropriate sexual conduct in a professional context should normally be a reprimand and a medium level fine. Where a conviction results in a custodial sentence, the general starting point should be disbarment unless there are clear mitigating factors that indicate that such a sanction is not warranted.”

For dishonesty it reads:

“Dishonesty is not compatible with practise in a profession which requires exceptional levels of integrity. The general starting point should be disbarment (or revocation of licence or authorisation to practise for BSB Licensed / Authorised Bodies) unless there are clear mitigating factors that indicate that such a sanction is not warranted”

For violence it reads:

“The starting point for a conviction of minor assault should normally be a reprimand and a medium level fine, which may increase to a short suspension. Where a conviction results in a custodial sentence, the general starting point should be disbarment unless there are clear mitigating factors that indicate that such a sanction is not warranted.”

For serious violence, as in the case of FE, it is apparent that a conviction for an act of serious violence should result in disbarment unless exceptional circumstances apply. Use of a weapon is an aggravating factor in the guidance.

The recent tribunal decisions do then appear to be on the lenient side of available sanctions. Two unregistered barristers convicted of fraud and serious violence at the crown court both received custodial sentences, yet neither were disbarred. On the other hand, regulatory misconduct has been treated robustly.

The sexual misconduct sanctions guidance sits starkly in contrast to that of dishonesty or violence. In the most basic terms, sexual misconduct is treated as ‘less bad’. It is weakly drafted and out of step with acceptable behaviour in modern society; the threshold to be met before misconduct causes disbarment is far too high.

Applying the guidance, consider a barrister who has a conviction for possession of indecent images of children, a self confessed paedophile with caches of images of young children being raped at home. This sort of offence rarely results in a prison sentence in the crown court, but is to any sensible view plainly not commensurate with ongoing membership of the profession. Following the present sanctions guidance, this person would be able to continue to practise as a barrister, and would have ready access to vulnerable witnesses, including children.

Applying the criminal law in the case of CT, had the young barrister reported him to the police (and she still could), the starting point for offending on the facts of her case would see her attacker facing a starting point of a year in custody per assault, before significant aggravation (and then mitigation, before credit for his plea). The custody threshold would most certainly be passed, these were serious assaults and he would be subject to sex offender notification requirements (‘the register’). His three month suspension looks rather ridiculous by comparison, and it is unclear why the fact that she declined to report him to the police and secure a conviction means he suffers a lesser sanction.

The military

Comparing the Court Martial sentencing guidelines for sexual misconduct committed by service personnel; upon conviction by Court Martial

“Offenders should.. be dismissed… unless there are exceptional reasons for retention”.

Doctors

The Medical Practitioners Tribunal Service Sanctions Guidance for sexual misconduct states;

“Sexual misconduct seriously undermines public trust in the profession. The misconduct is particularly serious where there is an abuse of the special position of trust a doctor occupies, or where a doctor has been required to register as a sex offender. More serious action, such as erasure, is likely to be appropriate in such cases.”

Police

The College of Policing Guidance on Outcomes in Police Misconduct Proceedings states:

“Offences of dishonesty, sexual offences (including possession of child pornography) and violent crime are particularly serious and likely to terminate an officer’s career. Such offending involves such a fundamental breach of the public’s trust in police officers and inevitably brings the profession into disrepute.”

Solicitors

The Solicitors Disciplinary Tribunal treats sexual misconduct as serious misconduct. The 2016 case of SRA v Dart involved a Solicitor who engaged in an inappropriate discussion about arrangements to settle a bill of costs, and watched pornography with a vulnerable female in his office. He was struck off.

At the very least it is plainly time we fell in step with other regulated professions, if we will not regulate ourselves more robustly. There is no longer an argument to be had that we are isolated in our ivory towers, detached from the public through the existence of our professional clients.

Times have changed, particularly evidently at the publicly funded criminal bar, where thanks to cuts to Legal Aid (a complaint for another day) the presence of an instructing solicitor is now a rarity and we are routinely alone with lay-clients at every hearing and throughout their trials. Our lay-clients, witnesses, co-counsel and professional clients do not expect to have to undertake internet searches to check that we pose no danger to them before meeting us.

Furthermore, we are collectively employers of staff in chambers, have a say in the careers of our pupils, supervise them and hold positions of trust.

It is clear that the present sanctions guidance must be turned on its head and rewritten from scratch. At the moment, the lowest form of sexual misconduct in the guidance is that which occurs professionally. This is patently misguided, as the fact that misconduct occurs at work should be treated as a seriously aggravating fact.

The case of BSB v DW demonstrates that professional sexual misconduct can be factually far more serious than a sexual offence conviction attained in a criminal court. The fact that a victim decides not to make a complaint to the police that brings about a conviction, ought not to reduce the sanction imposed within the framework of the guideline.

In DW we saw three discrete sexual assaults, all involving use of force and an imbalance of power, they took place in public (in so far as a party was going on) and involved a significant age disparity. Furthermore he denied the assaults and caused his victim, to give evidence along with a clerk and other counsel. He was found to lack credibility as a witness. There could hardly be a better example of a case of professional sexual misconduct being much more serious than a single criminal conviction for a sexual offence. In his case, the tribunal was arguably too lenient even on the guidance in its present form.

The starting point for a tribunal when imposing sanctions against a barrister who has committed violent, dishonest or sexual misconduct should always be disbarment. Only the strongest and most persuasive mitigating features must be present for a tribunal to be able to step back from disbarment.

Ours is a respectable profession and the public expect us to take the greatest care both in our personal and professional lives to uphold and adhere to the law. We should hold ourselves to the highest professional standards. The fact that we lag behind other professions is disappointing to this member of the bar.

What message is it sending out to pupils, fellow barristers, solicitor colleagues and the public if we allow those who abuse, steal from and attack others to stay in practice? There is no greater deterrent to a pupil barrister sexually assaulted at a chambers Christmas party than to know that if he or she reports her attacker, he or she will still have to face him in court. Theirs becomes the fear that the next time instructions are received, they may be co-defending with their attacker. They will have to cross paths in the court corridor, or robe near them in the robing room.

When the most they can expect from the tribunal is a fine or a short suspension, victims are deterred, and by deterring future victims, we enable future misconduct.

One further reform is needed. One cannot fail to notice when perusing recent decisions that some of the worst offenders have been unregistered barristers. It is in my humble opinion, time for the BSB to stop regulating these people and for them to cease being called barristers, as their misconduct sullies the name of the wider Bar and confuses the public, who understandably assume they are practising and therefore at risk of inadvertently instructing these individuals.

As well as bolstering public trust in the profession, we must strive to protect people who work for and with us from sexual misconduct. We must not shy away from ensuring sanctions act as a deterrence. At present, we are letting barristers who engage in professional sexual misconduct away with a slap on the wrist.

The BTAS and BSB recently issued a joint statement;

“The Bar Tribunals Adjudication Service and the Bar Standards Board are aware of current concern from the public and the profession at the level of sanctions imposed in cases of sexual misconduct. The sanctions imposed fall within the current Sanctions Guidance. This Guidance covers the whole range of professional misconduct and has been under review since last year. Proposals from the review will be published and subject to consultation with a view to having updated Guidance in place in the summer.”

Until the sanctions guidance is rewritten, no further sanctions should be imposed. The public trust in the profession wanes with every published decision. It is vital that the BTAS and BSB expedite publication of the revised guidance and consult with the profession before revising it.

Continuing the current pattern of leniency only adds fodder to arguments made by those calling for independent professional regulation. It is vital that BTAS and the BSB break this chain and self-regulate more robustly if the Bar intends to continue to do so in future. No one understands the complexities of modern practice at the Bar better than those within it, and we should be more than capable of getting this right.

In Memoriam

The Roll of Honour for those who worked in the Justice System and lost their lives to Covid-19.

Jon Jacob, a property Solicitor and partner with London firm Bower Cotton Hamilton, died in March aged 69. He was ‘just a lovely man, brilliant fun and incredibly erudite.’


Barrister Mohammed Shabir Sarwar passed away in hospital on Saturday, March 28th. He was 55 and had four children. He was a much-loved grandfather.

“Throughout his life, our father was committed to fighting hard for his community. He used his voice to stand up for the vulnerable and always found time to help those who were most in need.”


Sir John Laws, 74, retired senior judge and uncle of the Downing Street adviser Dominic Cummings passed away in March 2020.

“He was one of the greatest lawyers of his generation,”

Dinah Rose QC, one of the country’s leading barristers, said Laws was “one of the greatest advocates I’ve ever seen, and a man of enormous charm and erudition”.


A Greater Manchester Police staff worker died after diagnosis in March.

The woman, who had worked in Greater Manchester Police’s intelligence bureau for many years, died, the region’s deputy mayor for policing, Beverley Hughes, said.

It is believed to have been the first coronavirus-related death within GMP.


Sgt Ian Woodward, Dorset Police Officer passed away in March aged just 56. He was thought to have died from Covid-19 but tested negative post mortem. He went into self-isolation following Coronavirus guidance from the NHS.

“Ian was a consummate professional and very popular officer. He knew his work inside out and was always there for his colleagues, providing advice and support when needed. He had a fantastic sense of humour and will be sorely missed.”


Two members of Prison staff at HMP Pentonville have died. Bovil Peter and Patrick Beckford were both in their 60s and were respected members of staff at the prison.

POA national chairman Mark Fairhurst said: “My thoughts and prayers are with everybody involved with these tragic deaths – two at the same prison is very concerning.”

He described Peter as “an experienced member of staff” who was working at operational support grade at the prison, and “he died earlier this week due to Covid-19 symptoms”.

Fairhurst added of Peter’s death: “I just want to highlight the fact that this [Covid-19] puts us all at risk.

“We are on the front line doing a commendable job on behalf of society and he will be sadly missed by all his colleagues. We wish the best for his family and friends.”


Barrister John Collins of Park Square Chambers, Leeds, winner of a 2016 National Bar Pro Bono Award & still actively in practice passed away a few days ago. “He taught how humility, integrity, loyalty & friendship could survive in today’s modern world.”

“There will be others, far more eloquent than me, who will pay tribute to John, his fantastic personal attributes and his professional life and achievements.  I would just like to record that he was the nicest, most gentle, most kind human being you are ever likely to meet.”

“John was called to the Bar in 1956 (and that is not a misprint). He was head of chambers of Woodhouse Square, and then joint-head of Zenith for many decades.  During that time, indeed in all the time I knew him,  I never heard him complain, or say a bad word about anybody.”

John Collins


Umar Afzal, accredited interpreter working in the Justice System and for the Home Office, much loved brother of @nazirafzal, passed away at home on the 8th April 2020 aged 71.


Barrister Ricky Raymond Singh, father of eight from Ealing, Director of the Ealing based West London Equality Centre, died two days before his 72nd birthday. “He worked tirelessly for the poor and disadvantaged right up until the end.”

Mr Singh’s wife Sophia D’Oliveira-Singh, 47, said: “He was the most amazing, wonderful and loving husband and father to all his children, and he has done so much for the people of the community to help them, and give them advice and support.”

Ricky Raymond Singh

On the same day that Umar Afzal passed away, Birmingham National Probation Service suffered the loss of a member of staff. She had just had a baby.

“A family lost a sister, daughter, wife and brand new mum. She was smart, kind, vivacious and both a rock and a light to the folk she worked with. Everything looks a bit different today.”


Dual-qualified Solicitor & Barrister Monir Jaman Shaikh of PGA Solicitors, London, died on Tuesday 7th April 2020 in hospital having been admitted for 24hrs. He was 62. Hailing from Kumail village of Rampal in Bagerhat, Monir is survived by his wife and daughter.


First-Tier Tribunal Judge Jeremy Callow of Taylor House lost his battle with Coronavirus on 8 April 2020 aged 70.

“His passing is a real loss for the immigration & human rights world. His decency, fair-mindedness & humanity will be remembered & missed.”

He was a Zimbabwean, moving here in 2005. He had enjoyed an interesting career, appearing in cases involving espionage and torture.

When the seizure of the white farms commenced in 2000, Jeremy was at the
very heart of the group of lawyers who made themselves available to
represent the farmers.

He represented many from the Karoi area as well as other districts of Zimbabwe. He was fearless in seeking to uphold the law and obtained a number of judgments in favour of the farmers supporting their rights to their farms. The Government totally ignored most of those orders. This caused Jeremy great distress, but he kept going as long as he could. He
did everything possible to help the farmers who had been dispossessed of
their farms, going far beyond legal representation to give counselling
whenever necessary. He made many trips to the farming areas and appeared often in the Magistrates Courts to seek orders to protect the farmers. He became such a thorn in the side of the Government that he received at least one death threat. But this did not put him off from assisting farmers with their legal rights.

In 2004 he and his family made the decision that they had to leave Zimbabwe.

Jeremy told the press: "I love Zimbabwe, love the people, but can't take it any more". The family left Zimbabwe in 2005.

Jeremy and the family moved to Bournemouth, England, where he worked as a clerk in the Magistrates Court. In 2007 they moved to London when Jeremy was appointed as a fee-paid judge of the Asylum and Immigration Tribunal, a position he held at the time of his death.

In England, Jeremy kept in touch with his friends from Zimbabwe and
organised a number of functions for visiting lawyers from Zimbabwe. He never lost his love of the country and thoroughly enjoyed a visit there with Fiona in 2018.

Without exception those who knew Jeremy have paid tribute to him, praising his many personal characteristics and especially his willingness to help others. He has been praised, rightly so, as a devoted family man. A former senior judge in Zimbabwe said of Jeremy that he was "always intelligent,
decent, discerning, fair to both sides - a lawyer who valued the Rule of Law".

He leaves his widow Fiona, three daughters, Ashleigh, Julia and Celeste, and two grandchildren.


The criminal law family mourns the loss of Steve Knight from Folkestone. Steve was working as a police station lawyer in Kent when he fell ill. “He had a lovely cell-side manner & will be much missed” Steve died on the 14th April 2020, his 70th birthday, leaving behind his wife Jenny.

Knight ‘would always go to the police station, no matter what time of the day it was, very dapper and well presented. He really did look the part,’ Graham said. He played golf regularly and worked until the very end.

Solicitor Andrew Gurney used Knight as a police station representative for 15 years. He said Knight was a ‘lovely, kind man… who always went the extra mile for clients. More importantly, he was a family man and his family meant the world to him. It’s a tragic loss’.


It is with sadness that I add the name of Liverpool Crown Court Security Officer Diane Barney. She was adored by all who frequented Liverpool Crown Court, and will be fondly remembered. Thoughts with her family and friends at this time.


Dr Sam Williams, Police Custody Dr for West Midlands Police is reported by officers to have passed away in early April. There has been no official word from @WMPolice but many officers remember him fondly.

“He was well liked by suspects & the police. He will be missed.”


Matthew Seligman, Specialist Caseworker at Campbell Taylor, unreg. Barrister (1994 Call, formerly @39EssexChambers) & bass player died on Friday aged 64. Matthew specialised in mental health, community care & unlawful detention.

Seligman also worked with Morrissey, Sinead O’Connor and The Thompson Twins.


DC John Coker of the British Transport Police died aged 53. He fell ill with coronavirus on 22nd March and died on 17th April.

“he was much loved and respected… charismatic, kind, thoughtful and took everything in his stride”

He leaves a wife and three children.


Mary Day, usher at Luton County/Family Court died in hospital following a lengthy admission.

Mary was well known to all. Energetic, competent, above all kind, she raised huge amounts of money for charities. The face & heart of Luton, staff & Judiciary are heartbroken at her passing.


Rachael Yates, prison officer at HMP Usk in Monmouthshire died on Tuesday 21st April 2020 aged 33. She was a popular prison officer and was well known in Usk.

“Rachael was a much loved daughter, friend and was loved by anyone who came into contact with her.”

“Many of you will remember Rachael and her cheery nature working along-side Jane behind the counter at the old Post Office in Bridge St (often in Victorian costume).

Our thoughts are very much with her family at this very sad time. Many of you will have known Rachael but please respect her family’s privacy at this difficult time for them.”

Friends set up a fund-raising page in her memory.


Her Honour Elizabeth Steel passed away aged 84. It is believed that she died of Covid19 which exacerbated vascular dementia but no test was carried out. She had been unwell for the past 3 years. Her children created a fundraising page in her memory.


His Honour Alan Simmons, late of South Eastern Circuit, formerly of Devereux Chambers died on 7th April aged 83. His family suspect he caught coronavirus while visiting his wife, Mia, in hospital. He is survived by his wife, two children and two grandchildren.


A prison officer at HMYOI Polmont died in April 2020. He was a “well-known, much respected member of staff”. “His loss is one that is deeply felt by very many colleagues across the estate.“


Retired Magistrate Peter Waterfield of Wisbech died aged 71. Peter was the director of TES Europe & a governor at Peckford School. “For him, nothing was too much trouble, if it would help the children, then he made it happen” TES makes PPE in his memory.


Two cleaners at the MoJ main building have lost their lives. One, Emmanuel from Guinea Bissau, died April 23, 2020 at 10:30pm. He worked the day he died; the MoJ refused to pay sick pay & provided no PPE. His union lambasted the MoJ’s treatment of him.


Popular HMP Dovegate Prison Officer Earl ‘Sam’ Fuller died on April 29th aged 60 Born in Jamaica, he emigrated to Britain at 14. CSgt Fuller served with Worcestershire & Sherwood Foresters Regt for more than 20 yrs and was the British Army’s first black Drum Major.

His family have now spoken of their shock at his death because of his fitness levels and strength.

Jay said: “Everyone is just shocked because he was such a strong man. All the messages we have received have been overwhelming. He was a big part of everyone’s life. He spoke with us all the time and when we were away he would be around doing something in our garden. He was always the barbecue man at parties. He was very popular. He had a lot of friends in the army.”

Earlier in April the granddad-of-three started complaining of breathing problems and an ambulance was called. His son said: “He didn’t want to go to hospital as he didn’t want put pressure on the NHS, but his partner phoned for an ambulance.”


A “fiercely loving” interpreter who reunited refugee children with UK relatives has died Mona Mahmoud spoke an array of languages “she was fierce, strong, politically minded & a caring mother”

Before Covid-19 she was well. She leaves a widower & 5 children.

Mona was of Eritrean decent and brought up in Canada, lived in Hackney. She spoke a number of languages and worked for community organisation charity Citizens UK, in Whitechapel, as an interpreter for the Safe Passage project, which helps unaccompanied child refugees around the world.

The 43-year-old had worked in refugee camps in Lebanon and the Calais “Jungle”.

Mrs Mahmoud left the organisation last year to complete a masters at the University of East London and died in Homerton University Hospital on April 11. Her family said she had no underlying health conditions. In a statement, Safe Passage said Mrs Mahmoud was central to its work to reunite children with the families following the demolition of the Calais “Jungle” in 2016.

“Mona’s warmth and compassion quickly won the trust and confidence of unaccompanied children from the camp creating the security and space for them to put their faith in a legal solution. It was this unshakeable sense of justice that drove Mona to help so many to navigate the complexities of our asylum system, access safe routes and strive for a better world. The impact of her work will live on in the love and stories of the families she helped to reunite and reach a place of safety. We are united in grief at her loss.”

She had also worked with Bhatt Murphy Solicitors to help secure safe passage to the UK for refugee children stranded in Europe. A spokesman for the firm said she spoke “a dizzying array of languages”, including Tigrigna, Arabic and French.

He added: “She was not only an interpreter but a confidante, aunt, sister and surrogate mother. We cannot really yet believe that our powerful, fiercely loving friend who always supported others through tragedy and injustice, has been stricken down by this new tragedy, this new injustice.”


Police Staff Ramesh Gunamal died aged 70 in May 2020. He joined the Met aged 58 and worked on the front desk at Forest Gate in Newham for 12 years.

He was still serving until he tested positive for the virus, passing away aged 70 on May 9 after fighting “long and hard” against the illness for 42 days following his admission into intensive care on March 29.

His family said in a statement: “Ramesh was a well loved individual who touched and inspired the hearts of many.

“He always loved helping people. He was a father figure and role model who people looked up to.”

“He was such a jolly person who will always be remembered for his infectious smile and generosity. He would be willing to help anyone at a moment’s notice without thinking twice.

He spent most of his working life in sales, but at the age of 58 applied for a job as a public access officer with the Met.

His heart was set on it even though he knew it would be physically, mentally and emotionally demanding. He also knew the 12 week-long training, fitness test and exam would be a challenge after not having sat an examination since leaving school.

But he set himself the goal to lose weight, eat healthier and pursue endurance training, joining his son Tarun in the gym every day.

“He always believed that anyone can achieve their dreams and ambitions no matter who they are, what background they are from or what age they were.”

And his efforts paid off when he was appointed to his dream job.

Mr Gunamal worked in the front office, supporting vulnerable people coming into the Romford Road station.

“Being with the Met was an honour. There was nothing he liked better than to serve the community with a smile,” the family said.

At his funeral on May 18 more than 100 officers and staff came to pay their respects, flying a flag at half-mast to honour and salute him as the hearse pulled into the police station.

The family added: “This was done in honour of the love, service and dedication he gave to the Met over the years. They have been very supportive to the family since my father’s passing and we are grateful for this love and support.”

The family stated: “His strength and courage have left a lasting impression of hope and faith in many including the medical staff who treated him and those who did not know him in the hospital.”

And they add that to this day staff still remember Mr Gunamal with plans to collaborate with Tarun to create a sound healing project in his honour for other intensive care patients.

He was much loved. His son Tarun said: “My dad was my hero”.


PC John Hewitt, 53, MoD Police has died. This was his 30th year of service. He served at Clyde & Garlogie but more recently in Essex. His wife left the MoD Police in 2014 to become a nurse. He leaves Maria, his two sons, two step-children and two grandchildren, Orla and Anthony.


PCSO Charles Harding of the Metropolitan Police based in Lewisham died of Covid-19 in 2020.

[If you know more about this officer please provide details as I cannot find a formal press release nor any tributes online.]


Police Staff, Call Operator Sophie O’Neill of the Metropolitan Police passed away due to Covid-19 on 3rd April 2020.

[If you know more about Sophie and would like to pay tribute to her, please pass details on publicly or via DM]


A serving Police Community Support Officer has died.

Graham Wesley Dinning, who was known to his colleagues and friends as Wez, tested positive for Covid-19 on October 14 and had been self-isolating at home.

However, his condition worsened and he tragically passed away on 28th October 2020.

Graham, 48, leaves behind wife Laura, who also works for Northumbria Police, and their son Adam

Paying tribute, Laura said: “We are absolutely devastated beyond words.

“Wez was a caring and loving husband and father – and an incredible friend who will be greatly missed by so many.

“He really loved working for Northumbria Police and was proud to be a PCSO.

“I would ask everyone who had the pleasure of knowing him, that they remember him with humour because I know that’s what he would want.”

Wez

Criminal Defence Solicitor Nagib Hussain Ali of West Midlands Solicitors died from Covid-19 aged 54 on 4th January 2021.

Admitted to the Roll in 1998 and known as Naj to his friends, he was “a great guy, good humoured, didn’t take himself too seriously and was unfailingly polite & friendly.”

A huge loss, all who knew him are shocked & upset at his passing. He is survived by his wife and children.


Criminal Defence Solicitor Phil Street, founder of Taylor Street Solicitors LLP, based in Aldershot, Hampshire died on 3rd January 2021 aged just 52, leaving his partner Fiona & son Oliver.

“A larger than life, ebullient character who never took a step back & always always had a kind word for everyone he met.”

His practice included representing members of the military facing criminal prosecution at court martial and in the civilian courts and he will doubtless have been responsible for keeping many members of the armed forces in their jobs when their prosecution could have seen them expelled.

He was a well-liked gentleman and will be sorely missed by those who knew him.


Police Constable Abbasuddin (Abbas) Ahmed of Greater Manchester Police died on Thursday 21st January 2021 aged just 40, leaving a wife and two small children. He had transferred to GMP from the Civil Nuclear Constabulary in 2017.

PC Ahmed has been described by his colleagues on the Stretford Response Team as ‘the greatest brother in and out of work’ and ‘such a lovely man who was never seen without a smile on his face.’

Officers also paid tribute to Abs’ ‘pride of being a police officer’ adding: “Abs lived up his name meaning ‘lion’ – brave, loyal, a fighter, protective, and completely fearless. Abs will live in our hearts forever.”

PC Abbas Ahmed

Special Constable Marine Officer Toby Speller of Essex Police died on Sunday 17th January 2021.

He had dedicated 16 years volunteering and served an average of 700hrs a year.

He was “dedicated, professional, passionate” & “an inspiration”. He leaves a wife & children.

SC Toby Speller

PC Michael Warren, Metropolitan Police Tactical Support Group died aged 37 on 19th January 2021. He leaves a wife and two children, aged 8 and 5. He had been shielding but caught the virus despite this.

PC Warren joined the Met in February 2005 and performed a number of different policing roles. In his last four years he served as a TSG officer based at North East Area.

Due to being classed as vulnerable during the pandemic, PC Warren had been shielding at home, however his ambition to support his team and frontline colleagues was not deterred. PC Warren would log on remotely every day to offer any assistance he could to his team.

Mike was a devoted father and a good police officer. Across the Met and the TSG he was a friend to many of his colleagues. He had a dry sense of humour and was often the heart and soul of a team in a TSG carrier. Outside of work, he was a passionate Spurs fan and dedicated his spare time to one of his life’s other passions, motorbikes.

PC Michael Warren

Bolton Magistrate Manu Mistry has died aged 66. He was also the chief executive of Bolton Hindu Forum.

“He was kind and considerate, he always put the community first.

“This is a great loss to the community and his good work will never be forgotten.”

“Manu was very popular and well-respected across Bolton for his dedication to his community and many other causes in the town.

“He was an important key member of the Bolton Family and touched many lives.

“Manu will be missed greatly by many people and our thoughts are with his family.

“We will miss our good friend, rest in peace.”


Prison Officer

Serving Prison Officer Wynne Gibbs, 54, of HMP and YOI Prescoed in Pontypool, Wales passed away on 20th December 2020 of Covid-19. He had only just turned 54 on the 11th December.

Wynne had given 32 years to the prison service and before that, 6 years to the British Army, serving in the Royal Welch from the age of 16 to 22. Dedicating his life to public service was an example of his character and the morals he lived by.

He was “a hilarious man, quick-witted, could be easy to wind up, but was often shy in new company.” He had a strong moral compass.

Those who worked with Wynne described how much he helped them. He was treasurer for the Prison Officer’s Association in his recent years. He was a really good guy who will be missed dearly. Everyone who has contacted the family seems to be devastated and his daughter cannot really put into words how much he will be missed.

Wynne leaves behind his heartbroken parents Randall and Heulwen, his children Emma and Ryan and his former partner and good friend Sharon.


Traffic Police Community Support Officer Chris Barkshire of the Metropolitan Police died from Covid-19 on Monday 11th January.

[If you would like to pay tribute to Chris, please get in touch and I will add better details]


‘Devoted’ PC John Fabrizi, Met Police based in Camden, died on Sunday 24th January 2021.

He was “an officer that did so much good in one lifetime”.

Floral tributes have been placed on a bench inside Kentish Town Police Station.


Police Constable Sukh Singh from the Metropolitan Police’s forensic command died on Monday 25th January 2021.

[As above re. paying tribute to Sukh properly]


Custody Sergeant Craig Cartman of the Metropolitan Police also died of Covid-19 on Monday 25th January 2021 aged just 47.

Originally from Skipton North Yorkshire, Craig moved to London in April 2000 to become a police constable in the Metropolitan Police Service.

Craig worked in several boroughs in the Met covering several different roles before gaining promotion and working as a Custody Sergeant in Met Detention since 2018.

“He had won the respect of work colleagues and public alike, capably displaying understanding and empathy where applicable, yet guaranteed to be firm and resolute when tougher challenges arose.”

After contracting the virus only a fortnight previous, Craig posted a message on social medial when he typically wished his friends well, and expressed his determination to fight all the way. Alas though, the virus would show no mercy.

The thoughts of all at the Metropolitan Police Federation are with Craig’s family, friends and close colleagues.

Craig was a committed family man and devoted father to a 15 year old son, Jude, as well as five adult step children.

Sadly, Craig became ill with COVID-19 in the first week of January and passed away on Monday 25 January 2021.

He will be greatly missed by his family, police colleagues and friends.

Craig’s family would like to express their sincere gratitude to all the intensive care unit staff at Ashford & St Peter’s Hospital in Chertsey for all their efforts in treating Craig in the final weeks of his life.


Retired Solicitor and “People’s Champion”Danny Phillips of Mansfield died in January aged 76.

His family, who describe him as an ‘incredibly generous man’, say he will be hugely missed by all who knew him.

Danny was one of the original ‘Brocket Babies’ born at Brocket Hall, after the destruction of the City of London’s maternity wing during World War Two.

Educated at Oxford, he left behind a lucrative career in London to move to Nottinghamshire to help out with the miners strikes in the 1980s. He slept on floors and worked for free to defend working class men, setting up law centres in Mansfield, Ollerton and Shirebrook.

“He stood out as an honourable man – he was a real rarity.”

“He lived as simply as possible, giving everything to help them fight for their rights – he was a people’s champion who treated everyone the same, whatever their background.

“He was a very popular man – we would get stopped in the street constantly by well-wishers.”

Danny was a keen sommelier, so he and his wife combined his knowledge of wine with their love of good food, creating No. 4 Wood Street restaurant which sat adjacent to his solicitor premises.

“His jokes and stories were legendary” said his daughter Lindsey.

“He could tell you every book he had ever read, had so many stories from his work over the years, and would keep people enthralled.

“His jokes were often a little too intelligent though and there would always be a pause while you thought it through and worked out the punchline.

“He was a very funny, incredibly generous man who will be hugely missed.”

Danny leaves behind his proud wife Maggie and daughter Lindsey, his son Reece, daughter-in-law Jo, and grandchildren Josh and Fin, who say he leaves a huge hole in their lives.

Speaking of his battle with coronavirus, wife Maggie says she gets frustrated that people ‘don’t take it seriously’ and paid tribute to the NHS.

She said: “It frustrates me – people say it doesn’t exist or just don’t take it seriously.

“I had it myself and believe me, I knew I had it, it was horrible.

“What those poor staff are going through in the hospitals is awful – every member of staff was incredible, they are all working so hard.”

Danny Phillips

Detention Officer Sean Amey, Surrey Police died on 24th Jan of Covid-19. He had worked for Surrey for over 20 years as a custody officer at Staines. He was 54 and leaves a wife and two sons.

Fundraising page here, all donated money over £500 will be given to the family.


Police Staff Steve Cunnell, Surrey Police, died on 3rd Feb of Covid-19 aged 65.

Steve joined Surrey Police 9 years ago and worked as a caretaker at Salfords custody suite. He was highly valued and will be missed greatly.

He leaves partner Clair and daughters Jade and Ellie.


Employment Solicitor James Medhurst of Royds Withy King passed away over the weekend of 30th/31st January 2021. He was well known and deeply respected.

Before qualifying as a solicitor in 2014 James had a career in television production, and once worked as a question writer for The Weakest Link.


A Bailiff at Bromley County Court lost their life to Covid-19


PC 16601 Jonathan (Jon) Wain of Greater Manchester Police, Bury District, died of Covid-19 on Monday 15th January 2021.

PC Wain leaves behind his partner Gaynor and two sons, who are receiving support from the force.

Jon, aged 49, joined GMP in December 2003 and was based on GMP’s Bury district. He was a highly respected and experienced response officer who was committed to serving the people of Bury.

Colleagues on GMP’s Bury district have paid tribute to PC Wain, and said: “Jon Wain aka ‘The Duke’ – which the famous actor John Wayne was nicknamed – was the quiet guy on the shift with that inner strength, strong will and drive, which was so easy to admire.

“He was passionate about being a police officer and doing a good job; that was who he was and he was proud of it.

“He was a true gentleman, and a man that is fondly remembered by all who have worked with him throughout his service. There is not a bad word to be said about Jon.

“On his current response team, he quickly became loved and highly respected and he was that go to guy for many of the young in service officers, which is a testament to his quick wit, knowledge and approachability. He wouldn’t watch anyone struggle, as it wasn’t in him to do so.

“To the response team he is irreplaceable. He will be in our thoughts and hearts forever and we will try to do him proud throughout our careers.

PC Keith Redmond has been reminiscing about memories he shared with Jon, and said: “Just before Jon became ill; we were in the middle of a conversation at the station when another colleague introduced myself and Jon to a student officer. They introduced Jon using his moniker ‘The Duke’ which led to ten minutes of us trying to explain who the legendary actor John Wayne was. This left myself and Jon chuckling with each other for some time; when had we become the old boys?

“I still remember that trademark lopsided grin and chuckle. We are all stunned that he’s gone and we’re all going to miss that smile.”

Paying tribute to PC Wain, Inspector Carl Peterson, said: “I first met Jon in 2014 when I joined the Bury district and I have since had the privilege of Jon being a member of my team for the past two years. 

“With 17 years’ service, Jon was one of the most experienced members of the team who the younger officers could turn to for advice.

“During his career, Jon experienced numerous changes and challenges within the service, some good and some bad, but he approached them all professionally and was always there to support his fellow officers.

“He would also be the first to volunteer for those incidents that require greater levels of compassion and patience. Jon just had a way of helping people through what, for some, would be the most difficult times in their lives.

“I think that is what people will remember most, Jon’s compassion and his cheeky wry smile. He will be missed by all that knew him.”

Chief Inspector Mike Brennan, said: “We are all truly saddened to have learnt of Jon’s death on Monday evening.

“Jon was very much a true gentleman and a valued member of the team at Bury. His tireless work to make the lives of people within Bury that little bit better and to make the community that little bit safer had such a profound impact amongst colleagues and the wider community.

“He was everything that a police officer should be and more, and we are proud to have called him a friend, a colleague and a brother in blue. He will be missed so terribly by all.

“Our thoughts and prayers remain with Gaynor, Jon’s sons and his extended family at this incredibly sad time.”

A ‘Go Fund Me’ page in memory of PC Wain has been set up to support his family and a link to it can be found here:


The Metropolitan Police announce the death of Det Sgt Darren Barker, who died on 12th February 2021 after being diagnosed with Covid-19.

Det Sgt Barker is survived by his parents, Eric and Sheila, his wife Caroline, his two adult children Christian and Lauren, as well as his brother, Eric Barker, who is a serving Met Police Constable in the north London area.

The thoughts of the Metropolitan Police Federation and the officers we represent are with Darren’s family, friends and close colleagues at this time.

Det Sgt Barker, a specialist financial investigator within the Met’s Specialist Operations Command, was admitted to hospital in late January and died late on Friday, 12 February, surrounded by his close family.

Det Sgt Barker joined the Met in March 1992, and during his near 29 years of service, he spent the majority of that time as a detective working in various specialist investigation units and roles.

During his time working in the Met, Det Sgt Barker has worked on a variety of high-profile investigations and was most recently working in a specialist financial investigation role.

Due to being classed as vulnerable, Det Sgt Barker was shielding throughout the pandemic, but continued to work from home and supported his colleagues on various investigations, even playing a lead role in an ongoing, highly complex multi-national money laundering investigation, which resulted in its first conviction only last month.

Detective Chief Superintendent James Harman, from the Met’s Specialist Operations Command, said: “Darren was a much loved and respected friend and colleague for so many of us across the Met. He was well known for his sense of humour and his positive, gentle nature – but also for his incredible work ethic, professionalism and dedication to duty throughout his long career as a police officer.

“Darren was an extremely talented detective. Despite the challenges of shielding he continued to work on a number of high-profile complex investigations, and his leadership during these investigations was truly invaluable.”

“He will be remembered fondly by everyone he worked with, and will be greatly missed by us all. We are truly saddened by his loss and our thoughts are with his family and friends at this difficult time.”


Solicitor and Higher Courts Advocate William (Bill) Bache passed away during the week commencing 22nd March 2021 of Covid-19 complications at Salisbury District Hospital. He had been in hospital since 27th December 2020.

A consultant with GT Stewart, Bill was ‘a real character who fought hard for his clients’. The families of soldiers who died at Deepcut barracks will recall he acted for them and ensured that the inquests were reopened.

He was involved in many high profile cases over the years, including successfully representing Angela Cannings, who was wrongfully imprisoned for killing her children (the ‘smothered babies/Roy Meadow’ case).

He also represented Cpl Donald Payne who pleaded guilty to a war crime at the International Criminal Court.

He spent over 54 years in the law, having been admitted to the Roll on 1st July 1967. After training in London he practised in property law, later becoming involved in Local Government matters including Health and Safety prosecutions and Town and Country Planning Appeals. He became a Partner in a firm in Salisbury until 2005 when he formed his own niche practice in the areas of criminal law, military law and complex care proceedings.

Bill had extensive experience in dealing with shaken baby and other alleged child abuse cases where accusations were made against parents. He also dealt with these matters in the context of care proceedings and prosecutions for murder and manslaughter.

As his practice progressed, he dealt with many high profile criminal cases, military law, courts martial and complex child care matters. He was a regular speaker on both TV and radio.

Bill was Deputy Coroner for Wiltshire and Swindon for almost twenty years which assisted him in representing parties at Inquests as well as dealing with the complex issues of law and medicine which arise in the cases he conducted.

His expertise in military law resulted in him being asked to assist in drafting amendments to the Armed Forces Bill in relation to the granting of Army Legal Aid to members of the Armed Forces who were under investigation. He then gave evidence to the Defence Select Committee on the topic at the House of Commons resulting in members of the Armed Forces receiving legal aid at a much earlier stage in criminal investigations. He was a Higher Courts Advocate (Crime) and is remembered fondly by the military law community.

Bill was married twice and is survived by his daughter, Abigail Bache, who followed him into the law and practises at Garden Court Chambers.

Bill Bache

The original thread appears here.

Open our Courts

In the last post I talked about flexible operating hours, in this I shall expand upon the points I touched on towards the end of the post; lack of Court time.

What does ‘lack of Court’ time mean? 

It means that your Criminal Courtrooms in England and Wales are mainly empty and closed, despite there being lots of fully qualified Judges ready and willing to sit in them. 

Plenty of them are listed for sale as real estate. Many have already been sold. Some are locked rooms within buildings presently in use, or which were in use pre-pandemic. Just sitting there, unused.

The government keeps them closed to save money on staff salaries and pensions, on technology, on jurors and on lawyers who would need to be paid if cases were heard in them.  Cell staff and the prison estate would need to be better funded to cope with the increased burden on them.

Of course, some are closed because people cannot socially distance safely within them, but now that guidance has reduced to a metre and masks are being worn by the public in other indoor environments mandatorily, the argument for keeping them closed has weakened.

Did closing Courts save a lot of money?

They didn’t just close Courts, this has been Mission Creep over many years. First, they under-funded the police and Crown Prosecution Service to decrease the amount of people charged with criminal offences, then they closed Courts and decreased budgets year on year.  This meant that crime may have looked as if it was falling, but it was not.

They reduced the amount of judicial ‘sitting days’ (days Judges physically spend in Court hearing cases) across England and Wales, meaning that Courtrooms were forcibly closed, and more work heaped onto the Judges who were sitting.

It meant that the few crimes that did make it to Court were poorly investigated and had holes in them like swiss cheese.  Those of us prosecuting them, and I include the Crown Prosecution Service and the police in this, routinely despaired at the overall lack of evidence obtained at an early stage because of pressures on a broken system. 

Criminals were, and are, quite literally ‘getting away with it’ as a result.

What is the Court situation like now?

Even worse. Yesterday I posted on Twitter:

“Last week: D flew in from other jurisdiction to be sentenced. Only 4 Courts were sitting. Court pulled the case while we were all there + ready. D flew home.

This week: A vulnerable man has waited in prison to be sentenced since Feb. Court tomorrow now has no time. Case pulled.”

You might have concluded from all of the reporting that trials are the only thing causing a problem in the criminal Courts.  The fact is, our criminal justice system has been hammered to hell for the past couple of decades, leaving it in dire straits where even the simplest of cases is concerned. In the above tweet, I was referring to two sentences that would take less than an hour.

There was insufficient time to hear those.

What does this have to do with extended operating hours/flexible operating hours?

In short, the government want us to keep the amount of Courtrooms being used to the bare minimum, to save money.  To achieve this, they dreamed up the model I showed in my previous article.

Hasn’t this been tried before?

Yes.  You may have a sense of déjà vu, and you’d be right.  The imposition upon us of Flexible Operating Hours (FOH) was last tried in 2017, when the backlog was nearly as bad as it is now.  It failed.

FOH is a concept originally proposed in 2002 in respect of the Magistrates’ Court, revived in 2017 following the recommendation of Sir Brian Leveson, former President of the Queen’s Bench Division of the High Court of Justice.

“I therefore recommend changes are considered to the traditional opening and closing hours of the Magistrates’ Courts as a means of tackling some of the inefficiencies identified in this Review. However, the views of the public and all court users should be taken into account when deciding on a new model”

Importantly, Leveson acknowledged the limitations of his recommendation:

“I acknowledge that this may impact on current terms and conditions, and I don’t underestimate the challenge posed in terms of reallocating costs and resources.”

On 28th July 2017, Lord Justice Fulford attempted to demystify the proposed FOH Pilot as the Judge in Charge of Reform:

“We must use our assets to the greatest possible (but always sensible) extent, without asking anyone to work longer hours than at present.”

Having regards to the six pilot schemes, Lord Justice Fulford conceded:

“If it works, it works; if it doesn’t, it doesn’t. I am absolutely clear that a significant, detrimental impact on diversity in the professions or the judiciary is not a price the judges are willing to pay for more flexible operating hours.”

Initially, as part of the court reform, the FOH project was set up to look at options to maximise the use of our court and tribunal hearing rooms by using them at different times of day, outside the traditional hours of 10am-4pm.  HMCTS CEO Susan Acland-Hood advised:

“…the different slots would be for different cases, lawyers and judges wouldn’t have longer days in court – they would have similar hours, but at different times.”

We of course knew then, as we know now that this was poppycock.  The criminal bar, and criminal cases, do not work that way.

HMCTS had failed to be honest about the fact that several courts earmarked for the controversial FOH pilot were running at barely half of their capacity, official figures revealed.  This is otherwise known as courts ‘sitting idle’.  Courtrooms inside Court buildings were empty and locked. 

Why did we need the open rooms to sit for longer, when we could just unlock and use the other rooms?

The Criminal Bar Association made its position clear:

The evaluation of such a scheme does not require a pilot.  The problems are clear to see.  The pilot is constructed to succeed, but only by setting artificial parameters.  By making the pilot “voluntary” it would become self-selecting.  Only those able to appear in such a court would appear in such a court. The discriminatory effect of a scaled-up scheme would be concealed.

Namely, single people with no children and flexible working hours of their own, those with a partner at home looking after their children, et cetera.  The discriminatory effect on women was clear.

It also wasn’t fair, for reasons already articulated, on any of the staff involved, the Judges and on the bar who did not have any responsibilities at home.  The bar is set up to work to maximum output already, this would push it beyond breaking point.

And lo, HMCTS abandoned Flexible Operating Hours in the criminal courts following significant backlash from the legal profession.  HMCTS later agreed that there are particular pressures in the criminal jurisdiction and therefore took the decision to not proceed with pilots in the Magistrates’ and Crown Courts.

Could someone remind them of this please?

Here are some of the responses to the previous proposals.  Whether it is practitioners working in the criminal courts or the family courts, the concept that is FOH had already been strongly rejected:

“We’re concerned that extending working hours in courts could have a negative impact on solicitors and other court users, including: those with children or caring responsibilities; those with disabilities; vulnerable people; some religious groups; legal aid practitioners; junior lawyers; and business owners (as later hours may mean extra costs, such as overtime pay for staff)” – The Law Society of England and Wales

“The great majority of those responding to the survey indicated that they strongly believed the proposals would unfairly affect those with caring responsibilities and increase the length of trials.” – South Eastern Circuit and Criminal Bar Association

“The implementation of such a scheme will put back attempts to make the Bar and therefore, ultimately, the Judiciary more diverse.” – Criminal Bar Association

“We consider the evidence base is already sufficient to demonstrate, unequivocally, that extended sitting hours would pose significant difficulties in terms of the wellbeing of the profession and in respect of arranging childcare. The lack of predictability and lack of notice about court listings under the new proposals would mean that parents would have to arrange for care to be regularly available for the whole extended court-sitting period. The financial cost would be prohibitive.” – Western Circuit Women’s Forum

“The JLD is concerned that the proposals for FOH will adversely impact junior lawyers. Those at the junior end of the profession are, generally speaking, responsible for administrative duties. The JLD is concerned that extended court hours will result in junior lawyers being pressured to work longer hours for little, if no, remuneration or days in lieu in order to accommodate the increased working hours of the senior members of their organisation and, more seriously, complete the increased workload at no extra expense to their firm or organisation.” – Junior Lawyer Division of The Law Society

“We still believe this proposal is ill-judged and un-necessary, and wish our continued opposition to the scheme currently being forced upon us to be noted. There appears to be no independent proposal for the effective evaluation of the pilot.” – London Criminal Court Solicitors’ Association (LCCSA)

“Resolution has had and expressed concerns in principle from the outset about the pilots and the use of court rooms for family court sessions outside of normal court hours. The potential disproportionate impact on those parties and legal professionals with young children or other caring responsibilities, and on more junior (and likely younger) legal professionals and those working under legal aid contracts must be fully considered.” – Resolution (Family)

“The proposals for the criminal courts would have created a serious threat to our recruitment and retention of a diverse profession, and to the wellbeing of criminal barristers. There was also a widespread view that the proposals could not work and would lead to more delays and stress for everyone involved in cases going through our already overstretched criminal courts.” – Bar Council of England and Wales

What’s changed?

Nothing.

Are the above comments directly applicable to the present situation?

Yes.

Project Restart: COVID-19

In Phase 2 of its recovery operation, HMCTS intends to explore once again, extended operating hours to increase capacity.  In her ‘Monday Message’ of 16th June 2020, the Chairwoman of the Criminal Bar Association, Caroline Goodwin Q.C. described the move as:

“…none other than a back – door effort to bring it back in.  It is pretty low really to suggest that the backlog which we know is a pre COVID-19 issue and practically has nothing to do with COVID-19 is in fact due to COVID-19.  What we are facing is a culmination of mismanagement and years of starving the system of investment.  We are not blind. Do not seek to justify FOH by saying COVID-19 has caused it.  COVID-19 makes the problem created by others more of a challenge and the answer as always is invest”

On 9th July 2020, HMCTS CEO, Susan Acland-Hood published a blog and made the following comments:

“We cannot just add sitting days and do what we would normally do to address a backlog of this size.”

“Allow me to hypothetically to make a point – if we assume that we use Blackstone courts for all our non-custodial Crown cases, and move from 2 metre to 1 metre social distancing everywhere (both stretching assumptions), then even with extended hours added on, there is still work to be done to get us to pre-pandemic levels.”

“Identified experienced judges to lead those working groups, to carefully consider what will work best in individual jurisdictions, and ensure any change is implemented in a collaborative way.”

So here we are again.

The government is using the Covid-19 pandemic to push FOH through despite the same level of opposition it received fewer than 3 years ago.

Is there a backlog?

Yes.  Combining the Magistrates and Crown Courts, the backlog stands at 552,118 outstanding cases and the estimation is that it will take 10 years to clear at pre-pandemic rates. 

In the Crown Court alone, pre-pandemic backlogged cases totalled 39,000.  Post-pandemic cases totalled 41,599 as of the end of June.

‘Pre-pandemic rates’ were an absolute shambles and nothing to be proud of.  Decades of cuts and underinvestment in technology, buildings and infrastructure left us quite literally dodging buckets of water, leaking ceilings, mouldy, paint peeled walls and masses of locked Courtrooms.  Much of the Court estate was either sold off or for sale.  Much of it still is, despite the clear need to use it.  This meant that trials were routinely being vacated for ‘lack of Court time’.  I personally had more than 10 cases within one calendar year vacated for ‘lack of Court time’.

Extending Court sitting hours would be a false economy.  It would cost the government more money than it would save, and trials would be at far greater risk of collapse.  It would be this government’s embarrassment.

But our Criminal Courts are surely the envy of the world?  Isn’t this where it all started?  Are they really that dilapidated?

This is the Old Bailey ladies’ robing room as of Thursday 18th June 2020.

video provided by A .N. Other

This is Blackfriars Crown Court, reported by The Times and The Independent as being “one of the only “functional, purpose-built” crown courts in London.  Minsters were “under fire” for selling it amid growing concern about the dilapidated state of other buildings.  It was sold to Fabrix Capital for approximately £65m last year.

It isn’t the only Court being disposed of by the government:

The below is London and surrounding area, and includes Blackfriars Crown Court.

The simple fact is that we need Blackfriars. Crime has not gone away.  We need all of the Court buildings listed for sale, and those that have already been sold.  We, as a society, need them to be maintained and updated, not left to rot and sold off as real estate.  The vast majority of the Court buildings listed on that map are criminal courts.  That tells us exactly what the government think of the criminal justice system.

Between 2010 and 2020, the government closed 164 Magistrates’ Courts out of 320, or in other words, 51% of our Magistrates’ Court estate. The legal community campaigned heavily against this. It meant that we lost true local justice for local people (not to be too ‘League of Gentlemen’ about it).

It means that we cannot now use those Courts to hear jury cases, and many of them were, and are, perfectly suitable for that purpose.

In some parts of England and Wales, victims of crime and defendants now have to travel for over an hour to get to their nearest Magistrates’ Court.

What do Court buildings falling down around our ears, being sold off and Flexible Operating Hours have to do with one another?

They are inextricably linked.  Open more Courts, hear more cases.  If we hear more cases, we do not need to force the tired and stressed out people who are struggling to keep the handful of open Courtrooms in each county going for longer hours. 

Smaller Courts can hear non-trials. Larger Courts can hear trials. Remote working can be utilised for simple hearings, semi-video hearings can be used for trials, with counsel in multi-handed cases rotating in and out of an adjacent room to examine witnesses, while not in the main Courtroom, watching proceedings on Skype using headphones.

We do not need to force parents out of work. 

We do not need to make it less likely that members of the public will be able to sit on a jury.

Furthermore, opening our Court estate back up to its full potential and really investing in it would create jobs, something this government would do well to consider in a post-pandemic world where unemployment is rising drastically.

We won’t ‘clear the backlog’ with a few Blackstone Courts that will be needed for their original uses within months, and extended Court sitting hours.

We will clear it if the government makes a proper investment in our Criminal Justice System, and fast.

Many thanks to my co-author, Stephen Davies of Tuckers Solicitors.

Flexible Operating Hours; a Personal Response

Firstly, a little bit about me.  90% of the time I manage childcare and this job on my own.  I have some assistance for cases, with notice, from my parents who live a few hours away.  This has been affected by the pandemic.  I am certainly not the only one in this position and I do not plead for pity or sympathy. 

This response seeks to shed some light on the position many members of the Criminal Bar now find themselves in.  A great deal of them will have more children than I do, will have health concerns of their own or may be shielding while caring for a loved one.

Flexible Hours (‘FOH’)

I will talk about why it is wrong to try to wedge FOH in through the back door after previous government failures in 2002 and 2017 in a separate blog.  This article comprises my personal response.

This is the Crown Court flexible hours proposal:

Look at it, in all its ridiculous glory.

As has been pointed out by my friend and colleague Rachel, It is almost as if someone has applied simple arithmetic to a lack of Court hours and space, in that an ordinary trial day provides for around 4.5-5 hours of court sitting time, so therefore doing 9-1 and 2-6 must automatically provide almost the same amount of trial time. Wahey! We can fit 2 x trial days into ONE Court room! Problem solved.

No.

What it does not do is take into account the unseen work involved before and after Court sits, travel time, childcare responsibilities, the cross-section of society expected to attend during these hours and their needs, the work involved preparing before and after a hearing done by the Court staff and the Judiciary, the Prison vans, the cell staff….. nor does it factor in how exhausted people become listening to evidence.  Juries would zone out.

It really just demonstrates that they have constructed this template without consulting the people who undertake this work, and without witnessing any trials.

Parents: Morning Sessions

The first glaring error is the fact that the impact on parents makes the hours impossible. This is discriminatory on its own.  I work in Courts across my Circuit, three of which take me an hour and a half door-to-door, and some off-Circuit.  In rush hour, those journeys take much longer.

Paid childcare hours vary. Having canvassed my colleagues, I can report that local nurseries and child-minder hours range from 8-5, 8.30-5 and 7-6.  

To be able to begin a trial at 0900 or 0930 (Options A and B) Prosecution Counsel must have held meetings with all prosecution witnesses, the officer in the case, spoken to the CPS lawyer or clerk, ensured documents are ready and spoken to defence Counsel.  There are always last minute tweaks and changes to a trial. Defendants plead guilty, for example, which changes the shape of the case and involves us frantically running around amending indictments and ensuring they are re-printed for the jury.  Those issues and others like them were articulately explained by my colleague Joanna Hardy in a thread I have linked to below.

Time is also required for arrival, booking in and robing.  This requires arrival at Court a minimum of an hour before the trial is set to start, ideally just over an hour.  Defence Counsel has similar commitments, speaking to the defendant either attending on bail or from custody, speaking to defence witnesses and speaking to the prosecution.  Practically speaking then, advocates would need to attend by no later than 0745.

But childcare only opens at 0700, 0800 or 0830, and parents have had to travel for 1.5 hours to get to Court. So parents cannot undertake morning trials.

In the ‘real’ world before the pandemic, trials would rarely get off to a clean start even at 10-1030hrs.  Asking for more time was an everyday occurrence, and Judges would have a hearing or two in their list to do while advocates prepared matters or discussed a potential resolution and guilty pleas.  I have lost time of the amount of trials I have prosecuted where the complainant failed to attend the Crown Court and I had to ask the police officer in the case to make enquiries of them, take instructions from a reviewing lawyer (sometimes having to wait because they were in a meeting), have the case called on before the Judge to apply for a warrant for their arrest, or for more time because the defendant did not want the complainant arrested and would rather plead guilty.  A common tale in cases of domestic violence.

Witnesses and defendants in criminal cases are often vulnerable, intoxicated, reluctant, impoverished, reliant on public transport, or have travelled extremely long distances each day as they cannot afford a hotel.  They often have the same childcare issues as lawyers.  They frequently arrive at or around 1030hrs or later, and the trial recommencement delayed until 1100hrs or 1200rs to accommodate this.  A trial actually being effective between 0900-1300 or 0930-1330 only exists in an alternative reality.  

It has no grounding in this one.

What about afternoon sessions?  Are they easier for parents?

Afternoon sessions are no different in their difficulties.  Option A (1400-1800) requires parents to stay longer in work than after school clubs, child minders and nurseries are open.  The problems speak for themselves.  With an hour or two to travel after Court, as with 0900/0930 Court sitting starts, this would rule much of the Bar out of work altogether. 

Option B (1330-1630/1700) is no better. Under no circumstances can working parents stay in Court trialling later in the evening – in fact, in my experience when I conduct trials involving long journeys, Trial Judges often stop trials for the day at 1530 or 1550hrs to allow parents to travel home in time to collect children.  In one Crown Court, trials stop at 1550hrs every day, because the train to the West of the County is at 1600hrs and jurors need to leave to get home for the day.  

Novel local issues such as these are not being taken into account, and the discretion of trial Judges is being removed.

Time during the day set aside to plan and draft legal argument arising from a hitherto unforeseen point of law, such as a jury issue, or something a witness said or did while giving evidence would evaporate.  

The very basic structure of a trial would be lost, trials would inevitably take far longer to run their course, the opportunity for jury issues, witness issues, illness and personal emergencies for jurors, the judiciary, lawyers and advocates would all increase dramatically.  It seems palpably unfair to expect jurors to take half-days off work, many professions are unable to fit around such a system.

The idea that a trial ought to have just got into full flow when it is suddenly suspended for the day can only have been dreamed up by someone who has never conducted a trial.

Leaving the system as it is would get trials completed much more quickly and the Court would then be able to move on to the next trial.

The options do not account for other work.  The addition of running a busy practice around these trial models would cause instability and be unpredictable.  A morning’s trial start here, an afternoon there, trying to fit in conferences, 3 hour POCA hearings, 2 hour Newton Hearings and multi-handed sentences in around half-day trial starts will only serve to frustrate listings officers and make the disrupted structure of the Crown Court diary impossible to reconcile.

It is unfair to jurors, Court staff, the judiciary, Solicitors, defendants, witnesses and Counsel.  Extending the operating hours of Crown Courts was a ridiculous enough notion, but dividing trials in half and stopping Courtrooms from being capable of being locked down and dedicated to a trial until that trial has finished, is abject nonsense.

How can it be truly safe to double footfall in a single Courtroom during a pandemic?  I have been watching our newly sub-contracted Crown Court cleaners closely. Walking around with a jay-cloth wiping surface after surface without cleaning the cloth between surfaces, does not fill me with confidence.

Why doesn’t the government address the backlog by utilising our Court estate fully?

The answer is because they don’t want to spend any more money, instead opting to transfer the burden on the staff, Judges and lawyers who are working in the few open courts. 

The problem at hand is that successive governments had consistently failed to invest in the criminal justice system, long before Covid-19 stopped play.

The Criminal Justice System has been the subject of persistent, swathing cuts throughout the sector, from the prisons to probation, the courts to legal aid.  Judicial sitting days, the amount of days per year that Judges were being allowed to hear cases, were being reduced year-on-year, and the court estate was therefore sitting empty and unused.  The police were being told to ‘do more with less’.  The result was that we were constantly seeing cases in Crown Court for the first time that had taken more than two years to get to us. This meant that in excess of 39000 cases had been held up in the system before the pandemic struck.  Nothing was being done to rectify the issue then.

Covid-19 seems to have become the perfect excuse to laud the erosion of access to justice and rush through detrimental changes to the justice system.  The criminal bar’s fees have diminished for years as a consequence of cuts and a failure to make increases in line with inflation, but that does not mean we will be complicit in further weakening a system that is already badly broken.

Extending Court sitting hours discriminates against me and others like me.  It is no surprise to me that 38% of criminal barristers are considering not renewing their practising certificates (i.e. leaving the Criminal Bar) in 2021.

I commend to you the following threads and tweets about FOH and the current crisis:

https://twitter.com/beheshteh_e/status/1281683190634119171?s=21

https://twitter.com/sdavieslaw/status/1283463869281771526?s=21

https://twitter.com/circuitnorth/status/1282942845092012034?s=21

https://twitter.com/joanna__hardy/status/1282967858264158208?s=21

https://twitter.com/mam12cp/status/1283131497134923777?s=21