Crime clerking in a time of backlog

Serving justice through the Crown Courts has always been a challenge for a myriad of reasons, but today these challenges are particularly acute. We’re experiencing an unprecedented backlog in the Crown Courts, with over 67,000 cases awaiting disposal – a number which has nearly doubled since March 2019. Understandably there is great political pressure to push more cases through, but the courts themselves are crumbling (both physically and metaphorically) and, simply put, there are not enough barristers or advocates to conduct the trials and other hearings.

This creates an extraordinarily challenging environment for criminal clerks, but also an environment where they have never been more vital.

The critical link between the courts, chambers, prosecution authorities and defence solicitors is the ‘criminal clerk’ and in this period of backlog, it is no exaggeration to say we are a crucial piece of the criminal justice system jigsaw.

We are the interface between barrister and court, and the task of managing barristers’ diaries, when most courts have differing protocols, requires skill, knowledge and resilience. The various approaches to the use of CVP (cloud video platform) can be the most challenging, second only to late listing changes, with some courts publishing list changes which are commonly not received until 5pm, sometimes after 6pm!

The instinct and training of any clerk is to provide a high level of service to their instructing client. It is universally at the heart of the clerking role. Yet in this overwhelming period, many are unable to provide counsel cover on trials, leaving defendants unrepresented or the prosecution unable to present their cases.

That is not to say we don’t try. A significant amount of time is spent seeking cover outside of chambers. There has always been a network for returns, but this network is now an essential tool to locate available counsel and keep trials effective.

The daily challenge overlaps with the longer-term development of members’ practices. The fast flow of serious and complex work in criminal law creates an opportunity for members to accelerate their experience, and with guidance and support juniors can progress in criminal practice at a greater pace than ever before.

Top tips for navigating the challenge

Is it possible to provide a best practice guide in this environment? There certainly isn’t a bespoke resource you can turn to, and each clerk and clerks’ room will have their own approach.

There is room, however, for some ‘top tips’ based on our experience in Chambers, as well as the experiences of those with whom we regularly liaise. These may help to reassure those barristers and clerks facing similar challenges.

• Communication: Everyone is under pressure, liaison can be frustrating, and a calm head always wins the day. It may not always feel like it, but court listing staff are some of the most dedicated professionals in the sector, as are our instructing clients – both prosecution and defence.
• Details: Email and attendance notes can be your friend. Faced with a listing or case-related concern or request to be made, be ready to refer to the detail. Accurate records are persuasive, and can result in a listing error being rectified.
• Knowledge: Know your courts, research the protocols, check your understanding of case management rules, review directions from the Lady Chief Justice and/or the Senior Presiding Judge, follow bulletins from the Criminal Bar Association (CBA) and Institute of Barristers’ Clerks (IBC). Learn from colleagues, know your clients, and know your members.
• Relationships: Trusted relationships are essential. Probably the greatest challenge is balancing the pressure of an instructing client’s demands, with an overloaded barrister team pressured by unexpected case listings, timings, or in-person hearings that feel sprung upon them. How do clerks prioritise? Member, client or case? Managing this kaleidoscope of relationships necessitates trust: the member must trust you to make the right call for them, and the client must trust you when you are forced to make a change or can’t provide the service they expect. Above all, trust that we are all working together. Judgement calls can be tough in this environment but, with trust, they are much more likely to be accepted and appreciated.
• Planning: Individual and practice team management is the bedrock of decision-making. If there is collective agreement and understanding of where practices are targeted and headed, strategic decisions can be made. It may be to reduce work from certain clients, reduce work for courts which you can’t service, adapting members’ practices to their goals or circumstances, dropping crime from a practice, or focusing on more specific areas within crime. Every clerk is having these conversations and meetings, discussing the pros and cons, for the longevity of a criminal practice (or not).
• Wellbeing: A criminal practice has evolved. Baby boomers will recall the days before email and talk of the days of heading back to chambers, catching up with colleagues, even going to the pub… Now, no-one can move for being chased for advices, responses to judge’s orders, witness lists, skeleton arguments, a relentless need to prepare, all from the convenience of your pocket. The CBA and Women in Criminal Law, to name just two brilliant organisations, work tirelessly to support their members, and this includes clerks. No-one is immune to overload, anxiety or panic. Knowing the signs in your members, your team, and yourself is essential. More help and support is available than ever before, especially from within your clerking team.
• Teamwork: The clerking profession is about people. Look after the people, and the people should look after you. Clerks are not immune from pressure, both externally and internally. This includes pressure to ensure fairness across the member team, not just in opportunity, but fairness in allocation so that the heavy lifting of late return preparation is carried by the many not the few, which all reverts back to communication and trust, and the pivotal role of the clerk…

Community of clerks, IBC and the future

This article is based upon experience – not just my own, but that which I observe and feel within our clerking and wider team every day.

Clerking is a profession in growth, with opportunities to commence a career in a wide range of chambers, particularly in London.

Why on earth then would you choose a career as a criminal clerk, with all the pressures and demands that you will inevitably face on this pathway? I would say why not? It’s real, it’s responsive, with responsibility and relevance, and you will work hard with a sense of achievement. In my (biased) view, clerking in this environment is more valuable to members, clients and courts than any other.

The clerking community is in resurgence with so many new entrants to the profession month on month. The IBC plays an instrumental role with educational and social events. WhatsApp groups are widely used for socials, chambers are arranging impromptu drinks for clerks, particularly across different crime-focused sets (thank you, Joseph of 2 Bedford Row for instigating), with more to come.

I have recently been elected as Vice-Chair of the IBC and within that role also the Criminal Law Secretary. This has enabled me to contribute to discussions around the future of the profession and attend significant meetings with the Bar’s leadership. This experience has reaffirmed my view of the importance of communication and contributions from different perspectives.

There are multiple projects looking at listing, technology, capacity, CVP and common platform etc. – all the practical elements impacting our working lives. We know there is no silver bullet for the backlog, but we have to try and make the best of it and work together.

I am grateful to Martin Secrett for ensuring that clerking input has been sought for many of these initiatives, and I will continue in that vein. Watch out, I shall be looking for volunteers from criminal clerks across the country.