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

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