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Garden Court Criminal Defence Team Statement on Extended Operating Hours - An Unworkable and Discriminatory Scheme

Friday 4 September 2020

All lawyers in the criminal justice system already work extended operating hours under legal aid representation orders. The bulk of our work is completed outside of court hours. Much of that work is unpaid.

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CONTEXT – THE URGENT NEED TO INCREASE TRIAL CAPACITY IN THE CRIMINAL COURTS

Prisoners have existed, without face to face legal visits and with no family visits, for many, many months now with continuing uncertainty about when they might expect to be tried, because HMCTS has not yet implemented the physical safety measures needed to get the courts back to work. Defendants on bail face even longer waits for trial dates. Many courts are presently offering no trial dates at all for defendants on bail. Consequently, the complainants and witnesses in these cases face the same delay, with all of the stress, worry and anxiety that generates for them. Many of those impacted are families bereaved by homicide. This is a public scandal. 

The Extended Operating Hours (EOH) proposal is ostensibly part of the HMCTS recovery plan to increase trial capacity in the criminal courts further to lock down. We continue to await screens and temporary jury deliberation accommodation at Crown Courts up and down the country which, in sharp contrast to the speed at which Nightingale hospitals were built, have still not been commenced, let alone completed, at the majority of court centres. No estimate of the likely impact on trial capacity of EOH has been released. It is rumoured to be negligible (possibly less than 5%) but HMCTS will not publicly confirm their own estimate. By contrast, screens, purpose built accommodation for jury deliberations that allow for social distancing (therefore relieving the pressure on the court estate of using courtrooms as jury deliberation rooms) and the long awaited Blackstone Courts are anticipated to bring about a significant increase in trial capacity by September and going forward into the autumn, or at least they would, if only HMCTS would implement those physical safety measures. Again, HMCTS has declined, to date, to make publicly available the estimate of the impact on trial capacity of these country wide physical modifications to court centres, which we understand are imminent, but are yet to materialise. There is as yet no scheme in place at courts for testing, or even for tracing. A proper testing regime would reduce reliance on other safety measures.

A Freedom of Information Request or Parliamentary Question to obtain the figures in relation to projected trial capacity of EOH versus physical safety measures, in order to scrutinise the justification for the pilot, is required, which in turn may inform any judicial review of this scheme on grounds of discrimination.

Both professions want to see the Crown Courts return, not to pre-trial levels of trial capacity (which were already too low, resulting in a significant backlog of work before the pandemic, arising out of consistent refusals by the Government to make available the funds required for an adequate number of judicial sitting days), but to the levels of trial capacity necessary for a functioning criminal justice system.

To seek now to impose upon the Crown Courts (with the intention no doubt of extending the scheme into the Magistrates Courts in due course) this objectionable EOH scheme, anticipated to be of negligible impact in relation to trial capacity, is regrettable. It will bring with it measurable hardship for many who work in and have to participate in the criminal justice system, whether as complainants, defendants, witnesses or jurors, at a point in time when both professions have been rendered financially vulnerable due to the lack of a meaningful income since the commencement of lockdown. It is not constructive, workable or welcome. We invite HMCTS to think again before adding unnecessary administrative burdens, injustice and division to a system which is already on its knees.

SUMMARY OF THE EXTENDED OPERATING HOURS PROPOSAL

HMCTS has announced a ‘pilot’ of EOH for Crown Courts.

The present proposal is for shift courts at selected Crown Court venues on each circuit. Shifts would be 9am-1pm (trial 1) and 2pm-6pm (trial 2) with both trials operating out of the same room. Both trials therefore take longer to complete, but the overall number of available sitting hours in the room would increase (normal sitting hours are 10am-4.30pm). During normal sitting many hours are already wasted; for example, waiting for defendants to be brought to court and waiting for practical tasks that allow the court to run smoothly to be completed, because courts are chronically understaffed and the contract holders responsible for the transportation of prisoners are seemingly unaccountable for their failings. The pilot proposes nothing to plug this haemorrhaging of court time .

The pilot will be restricted to cases deemed ‘suitable’, therefore those limited to 2-3 days in duration and deemed, relative to the case load of a Crown Court, ‘simple’ by HMCTS. There is of course no such thing as a ‘simple’ case, because there is no such thing as a simple human life. Defendants, witnesses, jurors and complainants in such cases are as important, valuable and complex as those involved in more serious cases. All criminal cases are therefore unpredictable in terms of time estimate. Every person involved in every case deserves the same degree of respect and courtesy as the judges and silks navigating murder trials at the Central Criminal Court (who are not impacted by the pilot).

By curtailing the scope of the pilot, it will principally impact on the most junior (and most financially vulnerable) members of the defence bar and the very backbone of the prosecuting authorities, counsel and in house advocates, who undertake the highly skilled and very tiring work of back to back prosecuting in relatively short trials, week in, week out. As a result, it is those who earn the least and who will have the least financial reserve after 4 months of no income as a result of the virtual cessation of criminal trials, who will bear the brunt of the proposed scheme.

2-3 day cases are often called in through a ‘warned list’ system. This is a system of notification late afternoon for a trial to begin the following day. It often results in the phenomenon of ‘returns’: trials are reallocated the evening before they are due to start because the instructed advocate may be already in a trial or otherwise professionally committed.

The proposal is heralded as ‘voluntary’ in that counsel can ‘opt out’ and into a courtroom sitting regular hours in the event that they are unable to participate in the EOH court, perhaps because of caring responsibilities. That voluntary element is illusory. Counsel cannot take decisions that may impact a defendant by generating, for example, a longer wait for trial, without instructions. In any event, if called in through the warned list system, with counsel appointed the evening before, there is no way that a court can have certainty as to whether the counsel who is actually going to do the trial, can accommodate the shift hours at such short notice. They may well be unable to take the case, meaning that the fee goes to the barrister who can accommodate the shift pattern. Discrimination supposedly ‘edited out’ of the pilot, is in fact endemic within it because it is built into the EOH scheme, more of which below.

There has been no meaningful consultation with the professions in relation to implementation. It is understood the bar leadership at all levels has raised objections. The decision to pursue the pilot has been made by HMCTS in the face of that opposition. It would appear no meaningful dialogue has been conducted at all with our sister solicitor profession, which encompasses higher court advocates, who in turn undertake a sizeable proportion of advocacy in the Crown Courts.

The Bar Council protocol on sitting hours, which (albeit not agreed by HMCTS/ MOJ) does make clear what our own professional body deems to be our ordinary court day hours (10am – 4.30pm), advises that no variation should be imposed upon counsel in a case who cannot accommodate the variation in sitting hours without consultation. Advice as to whether this provides protection against the notion that non-compliance with the pilot could ever constitute a disciplinary offence is pending, but it is hopefully uncontroversial that no-one should be compelled into a system of work that is discriminatory.

THE HISTORY OF EXTENDED OPERATING HOURS / FLEXIBLE OPERATING HOURS

EOH, formerly proposed by HMCTS under the guise of Flexible Operating Hours (‘FOH’), is a policy repeatedly rejected by the professions on the grounds of its unworkable and discriminatory impact. It is not a policy contrived in response to Covid. It is a policy that HMCTS has long wanted to impose and for which Covid is now being used as a pretext.

In 2017, the professions united to oppose a pilot scheme of EOH aka FOH at Blackfriars and Newcastle Crown Courts and Highbury & Islington and Sheffield Magistrates Courts, which ultimately led to its early demise as it’s unworkable and discriminatory nature revealed itself very early on.

Subsequently, a pilot took place in Croydon Crown Court, widely recognised to have, once again, demonstrated the unworkable nature of the proposal. HMCTS continue to refuse to make publicly available the report of that pilot.

As an aside, Blackfriars Crown Court, said to require EOH to manage the workload and limit delays in listing in 2017, was subsequently sold off by the government for profit in 2019 after being deemed so below capacity as to be insufficiently utilised.

The MOJ and HMCTS do not have the trust of the profession, because policy is all too often driven by wholly short-sighted objectives rather than the delivery of a competently delivered and administered criminal justice system, operating in the public interest. Victims, witnesses and defendants are failed due to endemic mismanagement, lack of accountability and underfunding of the system over a period of decades. The system functions through the good will and commitment of the people working within it, but it cannot excel without investment and reform. Good will and unpaid labour can no longer plug the gaping holes.

PRACTICAL FAILINGS OF EXTENDED OPERATING HOURS

  • The knock-on effect for litigators, including paralegals seems not to have been addressed. An advocate finishing in court at 6pm, and concluding a post court conference with a defendant by, for example, 6.30 or 7pm, will often then require work to be completed by the litigator ready for the next day of the trial.  If that work extends to warning witnesses to attend at court for the following day, it cannot be left until the following morning. Witness summonses issued at 6pm are also difficult to give effect and cause considerably more inconvenience than is necessary if served on the morning of the day that attendance is required. Witnesses can no more arrange suitable childcare at a few hours’ notice, or adequately notify employers and so forth, than anyone else.
  • Counsel’s clerks are at present often unable to make telephone contact with court list offices and emails often go unanswered, indicating that listing officers do not have the capacity to deal with the current situation. The notion that the same list officers will have to liaise to accommodate the requests of counsel who cannot work the shift courts, or that counsel’s clerks will be able to get a response from those officers at short notice in relation to short notice listings (even fixture cases have recently been listed for trial with less than a day’s notice, with counsel’s availability, even in serious cases, completely disregarded) fails to take account of the reality on the ground.
  • There is no additional remuneration set aside for the scheme. Trial length increases for every case with both a commensurate and significant increase in cost and inconvenience for jurors and their employers and an increase in their attendances at court (number of journeys made for example on public transport) with an overall increase therefore in the risk of virus transmission during commutes to and from court for every trial participant. The government’s own policy is that travel to and from work should be minimised wherever possible, not purposefully increased as will be the effect of this pilot/ scheme.
  • Courts are already understaffed, and court staff overworked and underpaid. Running two trials out of every court room either requires double the number of court staff per day, or the same staff being required to work much longer hours. There has been no undertaking as yet that ushers, for example, or court security guards, will be protected from ‘double shifting.’
  • The pilot assumes prison vans will arrive for a timely start and pre court conferences i.e. by 8am, for prisoners to be booked in ready for morning conferences with counsel at 8.30am in time for a 9am start in court. This regularly does not happen at present in time for a 10am start. Prisoner regimes are fixed and inflexible. Prisoners are often transported significant distances for trials. It is not unusual for prisoners, including youths, to be brought to court without having been fed. This is not conducive to effective trial participation. Such difficulties will be aggravated.
  • Keeping defendants in cells at courts for longer periods of time mitigates against remand prisoner welfare which may impede the fairness of trials. Prison vans are not in limitless supply. The fact a defendant’s trial finishes at 1pm does not mean that they will leave court at that time. Further to a post-trial conference with counsel, they will be kept until the next available prison van. That van is usually the van that comes at the conclusion of the court day. The proposal will extend that court day finish to around 6.30pm (for post-trial conferences to complete).
  • Prisoners arriving back at prison after 7pm will have missed the evening meal (prison regimes are inflexible) and opportunity for a shower. This is not an unusual event under the present system, if prison vans leave court late in the day. Again, it is not conducive to effective trial participation. 
  • There is no mechanism by which a lawyer can be protected from working a longer court day as HMCTS envisages. To ascertain whether or not a barrister has cases in both an ‘early’ and ‘late’ court would add a further burden to already overworked list officers in the Crown Court and is nonsensical in relation to returns for warned list cases; the very cases the pilot targets.
  • No arrangements have been made to remunerate CPS lawyers, police officers, court and security staff and probation officers to work later and earlier. The pilot is neither funded, nor costed.
  • Chambers clerks are subject to employment contracts which cannot be varied unilaterally at short notice. Their services cannot be compelled outside of the long hours that they already work, and the majority start work at 9am and finish at 6pm. Counsel regularly need to liaise with their clerks before the court day begins and after it finishes. Removing that possibility impedes the overall efficiency of the system, particularly in relation to necessary liaison with listing officers in relation to other cases.  

THE DISCRIMINATORY IMPACT OF EXTENDED OPERATING HOURS

The impact of these proposals falls disproportionately on the shoulders of women sitting on juries, attending as witnesses, as complainants, working in the courts and as advocates instructed in the cases, because women continue to carry the primary caring responsibility for young and old within society. The following points should be understood to apply to women in all of those categories.  Men with similar caring responsibilities will be unfairly impacted also. Those without caring responsibilities may be asked to step in for shift courts, leaving others to work the ‘normal’ court hours. However construed, this is an unfair and divisive policy, but it also operates in a discriminatory manner.

Nurseries usually open at 8am and close at 6pm. Wrap around childcare for school age children follows similar hours. Early drop off and late pick up can sometimes be extended to 7.30am or 6.30pm but this obviously falls far short of ideal for young children in any event and incurs additional costs.  Nannies’ working hours cannot be changed from one week to the next because they are fixed by an employment contract entered into at the outset. In any event, no one reliant on the legal aid income earned from 2-3 day cases can afford to pay for a nanny and nor can the average court worker or juror. Grandparents are not available as they were pre-Covid. Childminding arrangements are similarly impacted and also not amenable to wholly unpredictable and late/ early working hours. Most of those affected will have no childcare available to them outside of the family if they are fortunate enough to have family to help out.

The notion in the pilot (perhaps intended if the pilot is deemed a ‘success’ for replication in a final implemented scheme) that the discriminatory impact can be mitigated through ‘notification to the list officer of counsel’s personal difficulties’ is unsustainable. List officers/offices cannot be negotiated with. Judges cannot control their own list offices. No advocate is under any illusion about the pressure under which list officers work, and regrettably, in some instances, this results in a refusal or inability to accommodate counsel, even if counsel has worked on a case for months. It is, in any event, wholly inappropriate to expect women, or any carers, to have to ask for special treatment. We operate in a profession where special treatment is viewed as a weakness. It leads to isolation and undermines a counsel’s confidence over time to be repeatedly the person to stand up and ask for it. We repeatedly lose young women to this vicious cycle and particularly so when they are just returning to practice after having children. Listing decisions can make or break a carer’s practice when s/he returns from, e.g. parental leave, and often does, as she tries to finance childcare out of what she earns.

The pilot has been constructed in such a way as to ‘edit out’ the recording of the discriminatory impact. Because it is (ostensibly) voluntary for those who cannot do the proposed 9am – 1pm or 2pm – 6pm cases, they will not feature in the data capture by HMCTS. This attempted circumvention of the discriminatory impact of the proposed scheme is spurious for the simple and obvious reason that returns will not be assigned to women and carers who cannot accommodate the hours, notified at short notice via the warned list scheme.

The ‘voluntary’ element is illusory. No counsel can, without instructions, opt a defendant out of a scheme which, in the Covid era, may result in a further delay to the listing of their trial. Many remanded defendants are now approaching a year on remand, with no trial date in sight, and in conditions of 23 hour ‘bang up’ (23 hours locked into their cell) as prisons have taken emergency measures to limit the spread of the virus across the prison estate.

Are women with young children not welcome on juries for these ‘simple’ cases?

There is no equalities impact statement to accompany the pilot, which is being implemented without a consultation process.

THE ETHICS OF EXTENDED OPERATING HOURS

The cases targeted by the pilot; deemed ‘low level’, ‘simple’ and ‘not complex’ by HMCTS, include cases of sexual offending and violence. The pilot deems barristers instructed in such cases free to play Russian Roulette with their own client’s access to a trial date. Barristers and advocates will instead have regard to our ethical duties and the best interests of defendants, complainants and witnesses. We shall act with integrity and not in our own interest. In some instances, the choice facing the client will be between taking the shift court allocation but losing the instructed barrister, to her and the clients detriment (many hours of preparation and client conferences are undertaken pre-trial) or waiting even longer for a trial date. And the pilot envisages no ethical issues arising?

We do not agree.

Garden Court Chambers Criminal Defence Team

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