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Speech by the Lord Chief Justice: Mansion House event for HM Judges

|Speeches|Lord Burnett

Introduction

My Lord Mayor, thank you for your invitation to speak at Mansion House this afternoon. In normal times many judges would be enjoying the hospitality of the City of London at the annual judges’ dinner.  But these are not normal times.  The coronavirus pandemic has led to tragedy for many, to serious illness for more and to disruption for all.   Each of us has cause to thank the millions of people who have maintained vital public and private services and kept the economic heart of the nation beating. I pay tribute to all those in the NHS and every sector of society who have put themselves at risk for our benefit.

The administration of justice is a vital public service and more than that, because it underpins the rule of law. None of our courts or tribunals ceased to function when the country went into lockdown. Then the focus of the public and commentators was understandably elsewhere but I have been encouraged that public debate in recent weeks has drawn out the importance of timely justice for society and for individuals and businesses.

I have expressed my thanks directly to judges, to court staff, to the legal profession and the many others who have kept the courts and tribunals running over the last four months, and have done so before parliamentary committees, but I wish to do so again in this public environment. Their commitment and creativity has enabled not only urgent cases to be heard in all jurisdictions, but also quietly to keep the wheels of justice turning across the whole range of work.

Innovation for recovery

We face a real challenge.  The volume of outstanding work has grown in all jurisdictions.  Restrictions on the use of space whilst social distancing and other public health precautions remain in place mean courts will continue to be constrained in the volumes of normal hearings that can be undertaken.  Imaginative thinking is going into utilising the court estate to its maximum capacity, with physical changes, careful listing and the use of technology all playing their part.

The aphorism “justice delayed, is justice denied” may have become something of a cliché, but it is true.  In all jurisdictions the delivery of timely justice is vital, whether through resolution at final hearings or by facilitating compromise.  It is critical for the lives and well-being of individuals and also for businesses.   People must be able to resolve family disputes and move on; and delay in resolving disputes concerning children can itself cause harm.   For the relatively small proportion of civil claims that do not settle out of court, the parties want and deserve a swift answer; so too in the Employment Tribunal and the tribunals which exist to resolve disputes between the state and the individual.

The delivery of criminal justice has proved difficult during the past four months and will do so for the foreseeable future. That said, the Magistrates’ Courts have continued to operate throughout and are fast returning towards pre-Covid volumes of work.  I am heartened by the enthusiasm of lay magistrates not only to get back to normal sitting but to support additional hearings to enable the backlog to be cleared.  Talk of the backlog taking years to clear is wide of the mark. The omens are good for a return to relative normality within months.

Jury trials have presented the most testing difficulties. The other work of the Crown Court accelerated during lock-down but it was not possible for some weeks to start new jury trials. At the beginning of April, we established a judge-led group to work out plans to enable them to get going again, taking account of public health advice with necessary logistical adjustments. They commenced again in the second week of May.  We now have jury trials running in most of our Crown Court buildings and the number of trials is increasing rapidly.  I do not underestimate the difficulty in putting in place systems which will enable trials to be conducted in sufficient numbers not only to cope with the work flowing into the Crown Court but also to erode the accumulated backlog.  Policy makers and Parliament may yet have to consider radical but temporary measures to aid that process.

Thousands of people await trial in custody subject to statutory custody time limits.  Those cases must be the priority. Yet all cases are important and delay has an adverse impact on complainants, witnesses and the accused alike, and also on confidence in the administration of justice.

Over the last four months judges in all jurisdictions, together with all who work in the system, have shown flexibility and creativity to enable justice to continue to be done.  It has been especially striking how local initiatives have delivered results.  Collectively we will continue that work to make sure that those who depend on the courts and tribunals will find them responsive in a timely fashion.

I am grateful that in the Lord Chancellor we have someone with a deep appreciation of the justice system and an understanding of the different issues that arise in each of the jurisdictions. I know he shares my determination to use the court estate to the maximum as well as to secure additional temporary space where needed to enhance capacity. He has been a firm supporter of the necessity to make technology available quickly to enable one or all of the participants in a hearing to attend remotely, when that is appropriate.  We must continue to make full use of that facility. Importantly, we share a commitment to make full use of both salaried and fee-paid judges to eat into the backlogs in all jurisdictions.

All this will require government support to make the resources available which provide the buildings, technology and staff needed for the courts and tribunals to provide timely justice.

Thank you, Lord Chancellor, for the decisive steps taken so far.

Innovation and our international position

Technology has enabled much to happen in the past four months which would otherwise have come to a halt.  We have taken three steps forward and no doubt we will take one step back.  But there is no going back to February 2020. In every jurisdiction there is a growing understanding of what is ideally suited for remote attendance, what is acceptable and what is not. Too often the problems encountered are technical, not least the internet connection of the weakest link, and even now many courts are making do with ad hoc arrangements much less good than those envisaged for the future.

The difficulties caused by coronavirus will be with us for many more months, if not longer, and so the expanded use of technology will be necessary.  There will be a constant evaluation of the experience in all jurisdictions so that proven advantages can be baked into practice.  Where that experience shows that remote attendance is not in the interests of justice that lesson, too, will be learned.  But as a judge said to me last week, the idea that lawyers will be required to travel for an hour or two, wait around and then deploy arguments for half an hour before travelling back, has now gone.

We have learned that those parts of our courts that were most advanced in the modernisation programme, particularly with digitised filing, have prospered best.  One such area has been the Business and Property Courts. Its work continued with barely a hiccough. We have witnessed again this year how innovation in these courts, combined with the innate adaptability of English Law, continues to attract international businesses to resolve disputes in London. The reputation of the Business and Property Courts, including the Commercial Court which celebrates its 125th anniversary this year, is underpinned by the outstanding quality of our judges, supported by an expert, vibrant, independent legal profession and squadrons of allied expertise.

My Lord Mayor, the City of London provides much valuable support for the legal sector and for the courts, most recently manifested in the publication of detailed proposals for the new City of London Law Courts to be built off Fleet Street. We are grateful for your continued support.

Judicial Independence and the rule of law

The day to day travails caused by coronavirus should not take our focus away from essentials.  International business comes to London because the rule of law is an absolute given in the United Kingdom.  It comes because we have independent, incorruptible and impartial judges appointed on merit from the leading lawyers in practice.

Those qualities infuse the judiciary in all jurisdictions and at all levels. Recruitment as a second career, first as a fee paid judge and then salaried, enhances the objective quality and independence of the judiciary and its reputation.  There remain difficulties in filling some vacancies, but I am grateful to the Lord Chancellor and his cabinet colleagues for having adhered to the decision last year of their predecessors to pursue the pension reform judged necessary by the SSRB.   We must continue to attract lawyers of high quality to the rich variety of judicial offices needed to sustain the administration of justice. Intense work is underway involving the judiciary, the Lord Chancellor, the Judicial Appointments Commission and professions to attract applications from as diverse a range of talented lawyers as possible.

In doing so it is particularly important to maintain the attraction of the salaried judiciary. It is those judges who devote their professional time and energy to the business of judging to the exclusion of all else, who do the more demanding cases and contribute so much beyond the disposal of their cases.  Our fee-paid judges provide vital flexibility and fee-paid roles secure a training ground for those who will go on to become salaried judges. Opportunities for additional fee-paid sitting will arise as we deal with Covid related problems. But our judiciary rightly depends primarily on a core of judges who are committed to judicial office for the rest of their careers.

During the next legal year much will be thrown at us.  No doubt it will call on our resilience and on our creativity.  We will continue to innovate.  Public service are the watchwords of all judges. The last four months have shown the ability of judges to adapt to sustain the administration of justice in adversity. In that we have had the unswerving support of the Lord Chancellor and Her Majesty’s Courts and Tribunals Service. Whatever the next few months bring, the judges can be relied upon to serve the public and the rule of law.

The Rt Hon. The Lord Burnett
Lord Chief Justice of England & Wales

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