Open our Courts

In the last post I talked about flexible operating hours, in this I shall expand upon the points I touched on towards the end of the post; lack of Court time.

What does ‘lack of Court’ time mean? 

It means that your Criminal Courtrooms in England and Wales are mainly empty and closed, despite there being lots of fully qualified Judges ready and willing to sit in them. 

Plenty of them are listed for sale as real estate. Many have already been sold. Some are locked rooms within buildings presently in use, or which were in use pre-pandemic. Just sitting there, unused.

The government keeps them closed to save money on staff salaries and pensions, on technology, on jurors and on lawyers who would need to be paid if cases were heard in them.  Cell staff and the prison estate would need to be better funded to cope with the increased burden on them.

Of course, some are closed because people cannot socially distance safely within them, but now that guidance has reduced to a metre and masks are being worn by the public in other indoor environments mandatorily, the argument for keeping them closed has weakened.

Did closing Courts save a lot of money?

They didn’t just close Courts, this has been Mission Creep over many years. First, they under-funded the police and Crown Prosecution Service to decrease the amount of people charged with criminal offences, then they closed Courts and decreased budgets year on year.  This meant that crime may have looked as if it was falling, but it was not.

They reduced the amount of judicial ‘sitting days’ (days Judges physically spend in Court hearing cases) across England and Wales, meaning that Courtrooms were forcibly closed, and more work heaped onto the Judges who were sitting.

It meant that the few crimes that did make it to Court were poorly investigated and had holes in them like swiss cheese.  Those of us prosecuting them, and I include the Crown Prosecution Service and the police in this, routinely despaired at the overall lack of evidence obtained at an early stage because of pressures on a broken system. 

Criminals were, and are, quite literally ‘getting away with it’ as a result.

What is the Court situation like now?

Even worse. Yesterday I posted on Twitter:

“Last week: D flew in from other jurisdiction to be sentenced. Only 4 Courts were sitting. Court pulled the case while we were all there + ready. D flew home.

This week: A vulnerable man has waited in prison to be sentenced since Feb. Court tomorrow now has no time. Case pulled.”

You might have concluded from all of the reporting that trials are the only thing causing a problem in the criminal Courts.  The fact is, our criminal justice system has been hammered to hell for the past couple of decades, leaving it in dire straits where even the simplest of cases is concerned. In the above tweet, I was referring to two sentences that would take less than an hour.

There was insufficient time to hear those.

What does this have to do with extended operating hours/flexible operating hours?

In short, the government want us to keep the amount of Courtrooms being used to the bare minimum, to save money.  To achieve this, they dreamed up the model I showed in my previous article.

Hasn’t this been tried before?

Yes.  You may have a sense of déjà vu, and you’d be right.  The imposition upon us of Flexible Operating Hours (FOH) was last tried in 2017, when the backlog was nearly as bad as it is now.  It failed.

FOH is a concept originally proposed in 2002 in respect of the Magistrates’ Court, revived in 2017 following the recommendation of Sir Brian Leveson, former President of the Queen’s Bench Division of the High Court of Justice.

“I therefore recommend changes are considered to the traditional opening and closing hours of the Magistrates’ Courts as a means of tackling some of the inefficiencies identified in this Review. However, the views of the public and all court users should be taken into account when deciding on a new model”

Importantly, Leveson acknowledged the limitations of his recommendation:

“I acknowledge that this may impact on current terms and conditions, and I don’t underestimate the challenge posed in terms of reallocating costs and resources.”

On 28th July 2017, Lord Justice Fulford attempted to demystify the proposed FOH Pilot as the Judge in Charge of Reform:

“We must use our assets to the greatest possible (but always sensible) extent, without asking anyone to work longer hours than at present.”

Having regards to the six pilot schemes, Lord Justice Fulford conceded:

“If it works, it works; if it doesn’t, it doesn’t. I am absolutely clear that a significant, detrimental impact on diversity in the professions or the judiciary is not a price the judges are willing to pay for more flexible operating hours.”

Initially, as part of the court reform, the FOH project was set up to look at options to maximise the use of our court and tribunal hearing rooms by using them at different times of day, outside the traditional hours of 10am-4pm.  HMCTS CEO Susan Acland-Hood advised:

“…the different slots would be for different cases, lawyers and judges wouldn’t have longer days in court – they would have similar hours, but at different times.”

We of course knew then, as we know now that this was poppycock.  The criminal bar, and criminal cases, do not work that way.

HMCTS had failed to be honest about the fact that several courts earmarked for the controversial FOH pilot were running at barely half of their capacity, official figures revealed.  This is otherwise known as courts ‘sitting idle’.  Courtrooms inside Court buildings were empty and locked. 

Why did we need the open rooms to sit for longer, when we could just unlock and use the other rooms?

The Criminal Bar Association made its position clear:

The evaluation of such a scheme does not require a pilot.  The problems are clear to see.  The pilot is constructed to succeed, but only by setting artificial parameters.  By making the pilot “voluntary” it would become self-selecting.  Only those able to appear in such a court would appear in such a court. The discriminatory effect of a scaled-up scheme would be concealed.

Namely, single people with no children and flexible working hours of their own, those with a partner at home looking after their children, et cetera.  The discriminatory effect on women was clear.

It also wasn’t fair, for reasons already articulated, on any of the staff involved, the Judges and on the bar who did not have any responsibilities at home.  The bar is set up to work to maximum output already, this would push it beyond breaking point.

And lo, HMCTS abandoned Flexible Operating Hours in the criminal courts following significant backlash from the legal profession.  HMCTS later agreed that there are particular pressures in the criminal jurisdiction and therefore took the decision to not proceed with pilots in the Magistrates’ and Crown Courts.

Could someone remind them of this please?

Here are some of the responses to the previous proposals.  Whether it is practitioners working in the criminal courts or the family courts, the concept that is FOH had already been strongly rejected:

“We’re concerned that extending working hours in courts could have a negative impact on solicitors and other court users, including: those with children or caring responsibilities; those with disabilities; vulnerable people; some religious groups; legal aid practitioners; junior lawyers; and business owners (as later hours may mean extra costs, such as overtime pay for staff)” – The Law Society of England and Wales

“The great majority of those responding to the survey indicated that they strongly believed the proposals would unfairly affect those with caring responsibilities and increase the length of trials.” – South Eastern Circuit and Criminal Bar Association

“The implementation of such a scheme will put back attempts to make the Bar and therefore, ultimately, the Judiciary more diverse.” – Criminal Bar Association

“We consider the evidence base is already sufficient to demonstrate, unequivocally, that extended sitting hours would pose significant difficulties in terms of the wellbeing of the profession and in respect of arranging childcare. The lack of predictability and lack of notice about court listings under the new proposals would mean that parents would have to arrange for care to be regularly available for the whole extended court-sitting period. The financial cost would be prohibitive.” – Western Circuit Women’s Forum

“The JLD is concerned that the proposals for FOH will adversely impact junior lawyers. Those at the junior end of the profession are, generally speaking, responsible for administrative duties. The JLD is concerned that extended court hours will result in junior lawyers being pressured to work longer hours for little, if no, remuneration or days in lieu in order to accommodate the increased working hours of the senior members of their organisation and, more seriously, complete the increased workload at no extra expense to their firm or organisation.” – Junior Lawyer Division of The Law Society

“We still believe this proposal is ill-judged and un-necessary, and wish our continued opposition to the scheme currently being forced upon us to be noted. There appears to be no independent proposal for the effective evaluation of the pilot.” – London Criminal Court Solicitors’ Association (LCCSA)

“Resolution has had and expressed concerns in principle from the outset about the pilots and the use of court rooms for family court sessions outside of normal court hours. The potential disproportionate impact on those parties and legal professionals with young children or other caring responsibilities, and on more junior (and likely younger) legal professionals and those working under legal aid contracts must be fully considered.” – Resolution (Family)

“The proposals for the criminal courts would have created a serious threat to our recruitment and retention of a diverse profession, and to the wellbeing of criminal barristers. There was also a widespread view that the proposals could not work and would lead to more delays and stress for everyone involved in cases going through our already overstretched criminal courts.” – Bar Council of England and Wales

What’s changed?

Nothing.

Are the above comments directly applicable to the present situation?

Yes.

Project Restart: COVID-19

In Phase 2 of its recovery operation, HMCTS intends to explore once again, extended operating hours to increase capacity.  In her ‘Monday Message’ of 16th June 2020, the Chairwoman of the Criminal Bar Association, Caroline Goodwin Q.C. described the move as:

“…none other than a back – door effort to bring it back in.  It is pretty low really to suggest that the backlog which we know is a pre COVID-19 issue and practically has nothing to do with COVID-19 is in fact due to COVID-19.  What we are facing is a culmination of mismanagement and years of starving the system of investment.  We are not blind. Do not seek to justify FOH by saying COVID-19 has caused it.  COVID-19 makes the problem created by others more of a challenge and the answer as always is invest”

On 9th July 2020, HMCTS CEO, Susan Acland-Hood published a blog and made the following comments:

“We cannot just add sitting days and do what we would normally do to address a backlog of this size.”

“Allow me to hypothetically to make a point – if we assume that we use Blackstone courts for all our non-custodial Crown cases, and move from 2 metre to 1 metre social distancing everywhere (both stretching assumptions), then even with extended hours added on, there is still work to be done to get us to pre-pandemic levels.”

“Identified experienced judges to lead those working groups, to carefully consider what will work best in individual jurisdictions, and ensure any change is implemented in a collaborative way.”

So here we are again.

The government is using the Covid-19 pandemic to push FOH through despite the same level of opposition it received fewer than 3 years ago.

Is there a backlog?

Yes.  Combining the Magistrates and Crown Courts, the backlog stands at 552,118 outstanding cases and the estimation is that it will take 10 years to clear at pre-pandemic rates. 

In the Crown Court alone, pre-pandemic backlogged cases totalled 39,000.  Post-pandemic cases totalled 41,599 as of the end of June.

‘Pre-pandemic rates’ were an absolute shambles and nothing to be proud of.  Decades of cuts and underinvestment in technology, buildings and infrastructure left us quite literally dodging buckets of water, leaking ceilings, mouldy, paint peeled walls and masses of locked Courtrooms.  Much of the Court estate was either sold off or for sale.  Much of it still is, despite the clear need to use it.  This meant that trials were routinely being vacated for ‘lack of Court time’.  I personally had more than 10 cases within one calendar year vacated for ‘lack of Court time’.

Extending Court sitting hours would be a false economy.  It would cost the government more money than it would save, and trials would be at far greater risk of collapse.  It would be this government’s embarrassment.

But our Criminal Courts are surely the envy of the world?  Isn’t this where it all started?  Are they really that dilapidated?

This is the Old Bailey ladies’ robing room as of Thursday 18th June 2020.

video provided by A .N. Other

This is Blackfriars Crown Court, reported by The Times and The Independent as being “one of the only “functional, purpose-built” crown courts in London.  Minsters were “under fire” for selling it amid growing concern about the dilapidated state of other buildings.  It was sold to Fabrix Capital for approximately £65m last year.

It isn’t the only Court being disposed of by the government:

The below is London and surrounding area, and includes Blackfriars Crown Court.

The simple fact is that we need Blackfriars. Crime has not gone away.  We need all of the Court buildings listed for sale, and those that have already been sold.  We, as a society, need them to be maintained and updated, not left to rot and sold off as real estate.  The vast majority of the Court buildings listed on that map are criminal courts.  That tells us exactly what the government think of the criminal justice system.

Between 2010 and 2020, the government closed 164 Magistrates’ Courts out of 320, or in other words, 51% of our Magistrates’ Court estate. The legal community campaigned heavily against this. It meant that we lost true local justice for local people (not to be too ‘League of Gentlemen’ about it).

It means that we cannot now use those Courts to hear jury cases, and many of them were, and are, perfectly suitable for that purpose.

In some parts of England and Wales, victims of crime and defendants now have to travel for over an hour to get to their nearest Magistrates’ Court.

What do Court buildings falling down around our ears, being sold off and Flexible Operating Hours have to do with one another?

They are inextricably linked.  Open more Courts, hear more cases.  If we hear more cases, we do not need to force the tired and stressed out people who are struggling to keep the handful of open Courtrooms in each county going for longer hours. 

Smaller Courts can hear non-trials. Larger Courts can hear trials. Remote working can be utilised for simple hearings, semi-video hearings can be used for trials, with counsel in multi-handed cases rotating in and out of an adjacent room to examine witnesses, while not in the main Courtroom, watching proceedings on Skype using headphones.

We do not need to force parents out of work. 

We do not need to make it less likely that members of the public will be able to sit on a jury.

Furthermore, opening our Court estate back up to its full potential and really investing in it would create jobs, something this government would do well to consider in a post-pandemic world where unemployment is rising drastically.

We won’t ‘clear the backlog’ with a few Blackstone Courts that will be needed for their original uses within months, and extended Court sitting hours.

We will clear it if the government makes a proper investment in our Criminal Justice System, and fast.

Many thanks to my co-author, Stephen Davies of Tuckers Solicitors.

Flexible Operating Hours; a Personal Response

Firstly, a little bit about me.  90% of the time I manage childcare and this job on my own.  I have some assistance for cases, with notice, from my parents who live a few hours away.  This has been affected by the pandemic.  I am certainly not the only one in this position and I do not plead for pity or sympathy. 

This response seeks to shed some light on the position many members of the Criminal Bar now find themselves in.  A great deal of them will have more children than I do, will have health concerns of their own or may be shielding while caring for a loved one.

Flexible Hours (‘FOH’)

I will talk about why it is wrong to try to wedge FOH in through the back door after previous government failures in 2002 and 2017 in a separate blog.  This article comprises my personal response.

This is the Crown Court flexible hours proposal:

Look at it, in all its ridiculous glory.

As has been pointed out by my friend and colleague Rachel, It is almost as if someone has applied simple arithmetic to a lack of Court hours and space, in that an ordinary trial day provides for around 4.5-5 hours of court sitting time, so therefore doing 9-1 and 2-6 must automatically provide almost the same amount of trial time. Wahey! We can fit 2 x trial days into ONE Court room! Problem solved.

No.

What it does not do is take into account the unseen work involved before and after Court sits, travel time, childcare responsibilities, the cross-section of society expected to attend during these hours and their needs, the work involved preparing before and after a hearing done by the Court staff and the Judiciary, the Prison vans, the cell staff….. nor does it factor in how exhausted people become listening to evidence.  Juries would zone out.

It really just demonstrates that they have constructed this template without consulting the people who undertake this work, and without witnessing any trials.

Parents: Morning Sessions

The first glaring error is the fact that the impact on parents makes the hours impossible. This is discriminatory on its own.  I work in Courts across my Circuit, three of which take me an hour and a half door-to-door, and some off-Circuit.  In rush hour, those journeys take much longer.

Paid childcare hours vary. Having canvassed my colleagues, I can report that local nurseries and child-minder hours range from 8-5, 8.30-5 and 7-6.  

To be able to begin a trial at 0900 or 0930 (Options A and B) Prosecution Counsel must have held meetings with all prosecution witnesses, the officer in the case, spoken to the CPS lawyer or clerk, ensured documents are ready and spoken to defence Counsel.  There are always last minute tweaks and changes to a trial. Defendants plead guilty, for example, which changes the shape of the case and involves us frantically running around amending indictments and ensuring they are re-printed for the jury.  Those issues and others like them were articulately explained by my colleague Joanna Hardy in a thread I have linked to below.

Time is also required for arrival, booking in and robing.  This requires arrival at Court a minimum of an hour before the trial is set to start, ideally just over an hour.  Defence Counsel has similar commitments, speaking to the defendant either attending on bail or from custody, speaking to defence witnesses and speaking to the prosecution.  Practically speaking then, advocates would need to attend by no later than 0745.

But childcare only opens at 0700, 0800 or 0830, and parents have had to travel for 1.5 hours to get to Court. So parents cannot undertake morning trials.

In the ‘real’ world before the pandemic, trials would rarely get off to a clean start even at 10-1030hrs.  Asking for more time was an everyday occurrence, and Judges would have a hearing or two in their list to do while advocates prepared matters or discussed a potential resolution and guilty pleas.  I have lost time of the amount of trials I have prosecuted where the complainant failed to attend the Crown Court and I had to ask the police officer in the case to make enquiries of them, take instructions from a reviewing lawyer (sometimes having to wait because they were in a meeting), have the case called on before the Judge to apply for a warrant for their arrest, or for more time because the defendant did not want the complainant arrested and would rather plead guilty.  A common tale in cases of domestic violence.

Witnesses and defendants in criminal cases are often vulnerable, intoxicated, reluctant, impoverished, reliant on public transport, or have travelled extremely long distances each day as they cannot afford a hotel.  They often have the same childcare issues as lawyers.  They frequently arrive at or around 1030hrs or later, and the trial recommencement delayed until 1100hrs or 1200rs to accommodate this.  A trial actually being effective between 0900-1300 or 0930-1330 only exists in an alternative reality.  

It has no grounding in this one.

What about afternoon sessions?  Are they easier for parents?

Afternoon sessions are no different in their difficulties.  Option A (1400-1800) requires parents to stay longer in work than after school clubs, child minders and nurseries are open.  The problems speak for themselves.  With an hour or two to travel after Court, as with 0900/0930 Court sitting starts, this would rule much of the Bar out of work altogether. 

Option B (1330-1630/1700) is no better. Under no circumstances can working parents stay in Court trialling later in the evening – in fact, in my experience when I conduct trials involving long journeys, Trial Judges often stop trials for the day at 1530 or 1550hrs to allow parents to travel home in time to collect children.  In one Crown Court, trials stop at 1550hrs every day, because the train to the West of the County is at 1600hrs and jurors need to leave to get home for the day.  

Novel local issues such as these are not being taken into account, and the discretion of trial Judges is being removed.

Time during the day set aside to plan and draft legal argument arising from a hitherto unforeseen point of law, such as a jury issue, or something a witness said or did while giving evidence would evaporate.  

The very basic structure of a trial would be lost, trials would inevitably take far longer to run their course, the opportunity for jury issues, witness issues, illness and personal emergencies for jurors, the judiciary, lawyers and advocates would all increase dramatically.  It seems palpably unfair to expect jurors to take half-days off work, many professions are unable to fit around such a system.

The idea that a trial ought to have just got into full flow when it is suddenly suspended for the day can only have been dreamed up by someone who has never conducted a trial.

Leaving the system as it is would get trials completed much more quickly and the Court would then be able to move on to the next trial.

The options do not account for other work.  The addition of running a busy practice around these trial models would cause instability and be unpredictable.  A morning’s trial start here, an afternoon there, trying to fit in conferences, 3 hour POCA hearings, 2 hour Newton Hearings and multi-handed sentences in around half-day trial starts will only serve to frustrate listings officers and make the disrupted structure of the Crown Court diary impossible to reconcile.

It is unfair to jurors, Court staff, the judiciary, Solicitors, defendants, witnesses and Counsel.  Extending the operating hours of Crown Courts was a ridiculous enough notion, but dividing trials in half and stopping Courtrooms from being capable of being locked down and dedicated to a trial until that trial has finished, is abject nonsense.

How can it be truly safe to double footfall in a single Courtroom during a pandemic?  I have been watching our newly sub-contracted Crown Court cleaners closely. Walking around with a jay-cloth wiping surface after surface without cleaning the cloth between surfaces, does not fill me with confidence.

Why doesn’t the government address the backlog by utilising our Court estate fully?

The answer is because they don’t want to spend any more money, instead opting to transfer the burden on the staff, Judges and lawyers who are working in the few open courts. 

The problem at hand is that successive governments had consistently failed to invest in the criminal justice system, long before Covid-19 stopped play.

The Criminal Justice System has been the subject of persistent, swathing cuts throughout the sector, from the prisons to probation, the courts to legal aid.  Judicial sitting days, the amount of days per year that Judges were being allowed to hear cases, were being reduced year-on-year, and the court estate was therefore sitting empty and unused.  The police were being told to ‘do more with less’.  The result was that we were constantly seeing cases in Crown Court for the first time that had taken more than two years to get to us. This meant that in excess of 39000 cases had been held up in the system before the pandemic struck.  Nothing was being done to rectify the issue then.

Covid-19 seems to have become the perfect excuse to laud the erosion of access to justice and rush through detrimental changes to the justice system.  The criminal bar’s fees have diminished for years as a consequence of cuts and a failure to make increases in line with inflation, but that does not mean we will be complicit in further weakening a system that is already badly broken.

Extending Court sitting hours discriminates against me and others like me.  It is no surprise to me that 38% of criminal barristers are considering not renewing their practising certificates (i.e. leaving the Criminal Bar) in 2021.

I commend to you the following threads and tweets about FOH and the current crisis:

https://twitter.com/beheshteh_e/status/1281683190634119171?s=21

https://twitter.com/sdavieslaw/status/1283463869281771526?s=21

https://twitter.com/circuitnorth/status/1282942845092012034?s=21

https://twitter.com/joanna__hardy/status/1282967858264158208?s=21

https://twitter.com/mam12cp/status/1283131497134923777?s=21