Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.
By Zoe Adlam
With the passing of each year, there is a chance to start afresh. The new year heralds the time to draw up long lists of things we want to achieve, promises to make ourselves better than before and a chance to start again. More than any other year, 2021 offers this. The unique circumstances of the last twelve months has placed society in an unprecedented situation– the pandemic is offering us a chance to change the odd and address what we want the new to look like. This possibility should be galvanised by the criminal justice system. Frequent news reports and countless commentary is showing how the criminal justice is struggling in England and Wales. So, it is crucial that the criminal justice system sets some resolutions for 2021 to start the process of changing itself for the better.
At present, there are three main resolutions that the criminal justice system should be focusing on for 2021 – creating a plan to deal with the backlog of cases; deciding a way to properly fund criminal pupillages and creating a framework to support the wellbeing of criminal lawyers.
Resolution number 1 – Create a plan to deal with the backlog of cases
These harrowing statistics are common sight when scrolling through news stories about the criminal justice system in England and Wales. However, just acknowledging this huge pressure is not going to solve it. What will is a clear and thorough plan for what the system can do at present to reduce this figure.
From the perspective of the criminal Bar, this clear and thorough plan must include ‘testing and vaccination at every court centre’ with ‘safety and safety alone’ being the ‘guiding principle’ to resolve this problem.[3] For the practitioners within system, it is crucial for the plan to ensure these standards, in order for this backlog to be addressed in the safest way possible. Safety, therefore, is essential to enable the professional bodies which represent those who work within courts, to feel that their members are truly safe at work. So, any plan must include an acknowledgement of the professionals who perform the work necessary to deal with the cases.
Whilst safety must be at the core of creating a plan to reduce the backlog of cases, some creativity must be used to approach this difficult problem. The current pressures on the system not only include safety issues, but there is the threat of new variants of the virus, and the issue over space available as larger venues such as sports centres and social halls are being used for the crucial vaccine rollout. Whilst these issues may be unpredictable, there must be alternative plans produced in order to address the problems which they pose. Therefore, in creating a plan, the criminal justice system must prepare for lots of different outcomes which requires the system to look from every possible angle at how these factors could affect their goal of reducing the backlog.
Equally, this creativity in its approach to a plan must include asking questions such as: at present, with the current national lockdown, many hotels, offices, and commercial spaces remain empty, such spaces are not being used for vaccine rollouts or other work, so could the criminal justice look into utilising these spaces? Additionally, the rate of unemployment is rising, meaning there is a potential untapped workforce supply of administrators for the system who could help to reduce the administration involved in dealing with the backlog of cases.
Therefore, creating a plan to reduce the backlog of cases within the criminal justice system is essential. Such a plan must emphasise the importance of safety, but the plan must also factor in many possible outcomes. An approach which requires creativity in thought, and the ability to ask questions to find solutions to the unusual circumstances the system is in.
Resolution two – Decide a way to properly fund criminal pupillages
Running alongside the worrying headlines about the backlog of cases, has been an equally worrying set of headlines which have emerged about criminal pupillages and their funding, in light of the pandemic. It emerged in summer 2020 that a number of commercial sets had signed up to a Bar Council scheme which was helping to fund criminal pupillages that would otherwise not be available because of the pandemic.[4] Whilst this is encouraging in the short-term, showing how members of the Bar are supporting one another in this difficult time and offering more opportunity for prospective pupils, it hides a more worrying state of affairs about the criminal Bar. This plugging of the gap is only a short-term solution. As such, serious questions must be asked by the Bar Council, the Bar Standards Board, the Criminal Bar Association, and the Government of how to support the criminal Bar going forward to make it an attractive and sustainable profession. Whether this means more money available for legal aid work, or sponsorship for criminal pupillage places, must be considered by these bodies working together.
The short-term solutions are a positive, enabling the criminal Bar to continue. However, if the criminal justice system really wants to start anew and be in a better place post-pandemic, then the system must desperately look at how those starting in the profession will be supported in the future.
Resolution number three – creating a framework to properly support the wellbeing of criminal lawyers
It is not only those beginning their career in the criminal justice system who need help. The criminal justice system in 2021 should be making a resolution to support all lawyers who work within the system.
Pre-pandemic, there were cries of help from practitioners within the criminal justice system who were struggling. Even in 2018, there were cries from criminal practitioners, describing the situation as being in the ‘grip of a mental health.’[5] This has even been repeated recently with reports of ‘the strain on mental health’ being ‘significant for practitioners and people affected by the justice system.’[6] Added onto these depressing comments are equally depressing figures released by the Bar Council from summer 2020 stating that 38% of criminal barristers are uncertain whether they will still be practising law in 2021.[7]
This general trend in recent years is that those within the system need help. The criminal justice system needs to support those who work within it. Though, this problem goes beyond just providing the system with more money, which would help. However, this problem requires more genuine care and concern. The wellbeing of practitioners strikes at the heart of what the system wants to look like in the future. Solutions to this problem should include considerations of how criminal practitioners really want to work, what support do practitioners want to see in place from their professional bodies and the government and how could the running of the courts enable the better standard of wellbeing for the practitioners and users of the court.
Conclusion
Drawing up a list of resolutions is exciting – the air of possibility which hangs around those resolutions promises for a brighter day. These three resolutions, which focus on tackling imbedded problems, require long term solutions. However, despite the difficulty to resolve them, it does not mean that these resolutions should result in the criminal justice giving up on them just because they are hard. These resolutions, if solved, offer the promise of a brighter day for the system – they offer the promise of a reduced workload for practitioners; the promise of a supportive profession for both those who are currently in the profession and those wanting to join. Such exciting promises require the system to commit itself to these resolutions. Who knows, if the system sticks to them, it might finish 2021 in a very different place from when it started.
[1] David Barett, ‘Backlog means courts could be clogged until next year’ (Daily Mail, 6th January 2021) ˂https://www.msn.com/en-gb/news/uknews/backlog-means-courts-could-be-clogged-until-next-year/ar-BB1cxmEH˃ accessed 16th January 2021. [2] Ibid. [3] James Mulhollad QC ‘Monday Message’ (Criminal Bar Association, 11th January 2021) ˂https://www.criminalbar.com/resources/news/monday-message-11-01-21/˃ accessed on 16th January 2021. [4] Neil Rose, ‘Commercial sets back scheme to fund criminal law pupillages’ (Legal Futures, 15th December 2020) ˂ https://www.legalfutures.co.uk/latest-news/commercial-sets-back-scheme-to-fund-criminal-law-pupillages˃ accessed 23rd January 2021. [5] Hannah Summers ‘Barristers in England and Wales ‘in grip of mental health crisis’ (The Guardian, 6th May 2018) ˂ https://www.theguardian.com/law/2018/may/06/british-barristers-mental-health-crisis-survey-criminal-bar-association˃ accessed 30th January 2021. [6] BBC News ‘Criminal barrister: ‘I earn less than minimum wage’ (7th January 2021) ˂ https://www.bbc.co.uk/news/av/uk-55548821˃ accessed on 30th January 2021, 04.35. [7] Bar Council ‘Whole Bar Survey July 2020: Summary of findings’ (July 2020) ˂ https://www.barcouncil.org.uk/resource/bar-survey-summary-findings-july-2020-pdf.html˃ accessed 30th January 2021.
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