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Pre-recorded evidence could be ‘counterproductive’, new bar chair warns

By Sam Tobin >>

(8 December 2021)

The use of pre-recorded evidence could be ‘counterproductive to the wider desire to get the backlog down’, the incoming chair of the bar has suggested. 

Mark Fenhalls QC, who takes up the post in the new year, said the courts ‘are not using the powers they already have’ under section 28 of the Youth Justice and Criminal Evidence Act 1999 because of a lack of resources.

‘The experience of most criminal barristers is that the courts are not using the powers they already have,’ Fenhalls said. ‘Why? Firstly, because the police and CPS just do not have the time and resources to prepare the prosecute cases and assemble the material that should be disclosed before these hearings can take place. Secondly, the courts are finding that the exercise of scheduling these hearings is causing more delay and trouble elsewhere in the system.’

He added: ‘We fear that the use of this power is counterproductive to the wider desire to get the backlog down.’

Giving his inaugural address as incoming chair on Tuesday evening, Fenhalls said: ‘The government has made strong and clear commitments to restoring public faith in the criminal justice system by increasing the charging and prosecuting of rape and serious sexual offences. The bar stands ready to play its part in ensuring that these allegations are tried justly.

‘But we have to ask ourselves if we have the people to meet the public demands and, at the moment in crime, the answer frankly is “no”. There are not enough judges or barristers and the backlog which we face is not just much bigger than it was before – it is actually more complicated.’

He also referred to the report by the Bar Council’s Race Working Group which found that barristers from ethnic minority backgrounds face ‘systemic obstacles’ to building a career at the bar.

‘For many years I thought the right thing to do as a well-meaning, liberal, privileged white male was to be colour blind and treat everyone equally,’ Fenhalls said. ‘To say nothing and almost disregard the question of race.

‘I don’t mind saying, I now think I was wrong. All of us have a responsibility to ask difficult questions of ourselves: what are we doing to address this imbalance and this unfairness?’

It is important ‘for the profession to take action rather than wait for action by regulators’, Fenhalls said, adding that ‘if the profession takes these steps because they see it as necessary and desirable, as voluntary measures rather than imposed from the outside, they are far, far more likely to succeed’.

(Courtesy: The Law Society Gazette)