Our President

Our President

Written By: Philip Turton
Edition: July 2020

It has been an exceptional year, for all the wrong reasons.  Accepting, as we must, the self-imposed hardship that will follow from the decision to exit the European Union, we have been hit by a global pandemic which, even if earlier outbreaks of SARS and Asian Flu gave warning, is still unprecedented.  No-one living has faced anything like the situation now before us, not least because, in simple terms, it has never occurred before in the modern age.  We have, with justification, become complacent about our successes, our affluence, the ease of modern life.  Whilst our parents’ or our grandparents’ generations, knew and recognised hardship, and collectively faced down the most difficult periods of our nations’ history, we have been lucky enough to enjoy 70 or more years of success and prosperity, without necessarily having to pull together in a way which any survivor of a World War would recognise.  How times have changed and how suddenly. 

In March, after a short period of uncertainty, the Judges were told to go home.  Notwithstanding a clear aim to keep judicial business moving so far as possible, the limits of what could be achieved in lockdown have been all too apparent.  Crown Court trials halted; possession cases stayed; civil cases requiring physical presence adjourned, to be restored at some later date.  For some of us, the business of law has continued, albeit with differences.  Others in each of the branches of the legal profession have seen the level of work they had enjoyed decline markedly and for some work came to a complete halt.  For anybody used to appearing in Court, work was not there during lockdown.  For others, the limits upon movement meant that new cases and new clients declined.  The fact that juries could not be deployed prevented Crown Court trials, some of which had been waiting for some time, from taking place.

Now, at last, we are beginning to see light in the tunnel.  Courts are, tentatively, returning to work.  Some Crown Court trials are taking place.  In the civil field, His Honour Judge Godsmark QC set a benchmark in Nottinghamshire for keeping business going, instigating remote and hybrid hearings as appropriate, and adapting to trials which, when they cannot take place in courtrooms, nonetheless proceed using technology which had previously featured but little in the discharge of judicial business.  The Courts are at work again – not at the level of before and, procedurally different, but nonetheless back to the business of justice, whether criminal or civil.

Inevitably there is trouble ahead.  A backlog of work has built up.  No possession case has reached a Court room, given the terms of Practice Direction 51(Z) since March; the period when trials did not take place created a backlog; the Courts are not yet functioning to anything like capacity; nor will they be for some time.  Justice, and the need for it, indeed the demand for it, does not go away.  Victims of crime have had to wait longer to see perpetrators punished; Defendants on remand have remained in prison; litigants have been denied timely resolution of their disputes; those facing eviction from their homes have had to endure lockdown with a day of reckoning still before them. 

The Government has formed Working Parties to address the question of the backlog in each  jurisdiction; criminal, family and civil.  Judge Godsmark QC, heads the Civil Working Group.  Their proposals are due this week but the prospect that they will recommend extended hours working has already been floated.  It is likely that, in order to clear the backlog of cases which has grown up in all jurisdictions, legal practitioners of every persuasion will be asked to cooperate with the proposal; to take and conduct cases which might be heard in the evening or at weekends and to attend “Blackstone Courts” in unfamiliar places, brought into service to widen the resources available to Her Majesty’s Court Service. 

How do we respond?  This is an individual decision, for every Solicitor, Barrister and Legal Executive.  It has proved controversial and has occupied the thinking of our professional bodies in London.  Strong views have been expressed in newspapers and on social media as to the implications of extended hours. 

It is right to observe that there is cause for grievance, particularly in the Crown Court.  Before lockdown the Crown Court had a backlog of outstanding cases which had reached 39,000.  Last week, the figure had risen above 42,000.  As has been rightly pointed out, the additional case load attributable to Covid-19 is a fraction of the overall backlog which can more properly be attributed to a lack of proper funding for the criminal justice system and the resources necessary to ensure that it functions effectively.  Yet proposals for clearing the historic backlog have scarcely been made.  Anyone who watched The Secret Barrister’s special reports for Channel 4 News last week could not fail to appreciate the devastating damage that underfunding of the criminal justice system has caused, yet the Government has consistently failed to address the issue.  Extended hours working mean that practitioners will have to take cases at unsociable hours.  This is an additional burden for many who are already working extremely hard.  Furthermore, it may mean that those with families are less able to accept such work, where it clashes with the need to provide childcare during lockdown or over the school holidays.  And, of course, the whole business of getting back to work carries risk.  We are seeing spikes in coronavirus cases in other countries as they emerge from lockdown and the same may occur here.  Going back to Court and the conduct of cases, like any activity which brings the public together, involves risk to which attitudes inevitably vary.

These are legitimate and weighty concerns.  Every individual must determine what their approach will be, and how they will decide what to do.  It is worth remembering though that whichever branch of the law you come from, and from whatever side, we remain a profession, able to enjoy benefits as a result and committed, accordingly, to public service.  I do not think that has changed despite the strictures which may have been imposed down the years.  It is relevant, here, that the situation we face is unprecedented.  This is a time of national crisis.  We are, as professions, are asked to help the country.  We are asked to help our fellow citizens by keeping our part of the show “on the road”, and by trying to restore it to normality as soon as possible.  This is no small favour.  Furthermore, we do not have to look very far to see where the example has been set.  Our colleagues in the medical professions, whether doctors, nurses or carers, stepped up to the plate without argument when it was demanded of them in February, March and thereafter.  They, too, may legitimately complain about the risks to which they were exposed, or of the underfunding of the Health Service which has occurred over many years.  But they did not hesitate or falter, at least not to any meaningful degree, and simply did what needed to be done.  We clapped for them on Thursday nights for a reason.  It would be a shame, in my view, now that our turn has come and the legal profession, too, is being asked to help with this crisis, if we did not follow their example and wholeheartedly answer the call. 

Best wishes,

Philip Turton

President 2020-2021