Speed, ease and efficiency are laudable objectives for the court system in England and Wales, but current proposals for a flexible operating hours pilot raise far more concerns than solutions. When the plan to pilot extended court opening hours was first announced in May, the Law Society warned HM Courts & Tribunals Service (HMCTS) that the scheme could heap more pressure on an already fragile system.
Together with our members we have raised concerns at the local implementation groups, and with senior HMCTS and Legal Aid Agency officials. We highlighted that we were not satisfied that sufficient preparatory work had been undertaken to identify the costs and risks of this proposal nationally, in local pilot areas, or in relation to different user groups. HMCTS accepted that they needed to engage further with the defence community on the design of the pilot as well as the evaluation.
While we still have a number of unanswered questions and concerns in relation to the pilots, HMCTS has responded positively to some of the issues the Law Society has raised. At a recent meeting of the London Local Implementation Team, officials clarified that no legal representative will be required to attend court for both the early morning and the late afternoon courts in one day. If practitioners find themselves listed for both sessions, they will be able to request an alternative date or time. We await confirmation of this.
HMCTS has also confirmed that the London pilot courts will deal with trials only, which will avoid any impact on the duty rotas. The Newcastle and Sheffield crime pilots will, however, be hearing a variety of cases, and we know that practitioners in those areas still have a number of concerns about the practicalities of the pilot.
The government has now confirmed it is proceeding with the controversial pilot and yet neither the Law Society nor the Bar Council have been formally consulted on the proposals or been directly involved in the work of the National Steering Group, at which the key decisions about the pilots have been made. It is also hugely disappointing that the findings from pilots that have taken place within the last 12 months have not yet been published.
A recent blog post by HMCTS Chief Executive Susan Acland-Hood generated scores of comments from across the profession. It is significant that concerns are now also being voiced by members of the judiciary – see comment by HHJ Ticehurst and comment by Judge Blair QC.
The Law Society is not persuaded that there is strong and reliable evidence that flexible hours would mitigate the current problems with the court system. The closure of 86 courts across England and Wales - including 10 in London, before any of the perceived benefits of a digitised system have been implemented or realised - placed a significant burden on the courts, personnel and judiciary that remain. Proposals for extended opening hours are a questionable alternative to maintaining an adequate court estate.
The Ministry of Justice tested the introduction of more flexible court sittings in the wake of the August 2011 riots, and as recently as 2013 in the criminal courts, with 42 magistrates' courts participating. These previous pilots of flexible hours have been unsuccessful and we have seen no indication that this pilot is markedly different, nor that the reasons for the previous negative recommendations have been taken into account in the design of this pilot.
The argument that these reforms are being built ‘around the needs of our citizens‘ overlooks the fact that court users have not actually been consulted on what their needs are. Moreover, different users on a single case may have conflicting requirements or preferences. We have seen no evidence that the proposals are responding to a demonstrable user need, or that an equalities impact assessment of extended court hours has been undertaken. The longer hours proposed are likely to impact not only those with caring responsibilities, but also certain religious groups. It is not clear whether childcare, religious or other reasons will suffice to exempt a practitioner from the early morning or evening hearings.
Even if availability of hearings outside traditional hours would be more convenient for some court users, there has been no demonstration that a scheduling tool or process will be used to take account of user preferences. Without some means of determining the times when court users would prefer to have their cases scheduled, courts may find themselves at risk of breaching anti-discrimination legislation.
Any efficiency gains must take full account of both the benefits and costs to all court users, including the defence lawyers, victims and witnesses. It must not be limited to direct financial considerations. An evaluation of the pilot must assess the impact on the quality of justice of the court sitting late into the evening. We are concerned that defendants appearing late in the day may be more likely to receive harsher sentences. Our submission to HMCTS highlighted our concerns about intimidation or retribution that could occur more easily at night. This is a security issue which could affect either party in a family or civil case. Victims, jurors and witnesses in criminal cases, HMCTS staff, prosecutors and defence lawyers are also at risk. Such intimidation rarely occurs within the courthouse, but rather on the journey to the court, waiting for public transport, and, in particular, walking to and from car parks, when court users are vulnerable to being followed.
The pilot proposals also indicate a failure to understand the ways in which legal professionals work. Solicitors representing people accused of wrongdoing already attend police stations at any time during the day or night under the duty rota scheme. Despite the concession that practitioners will not be required to attend both the morning and afternoon sessions, they will still be working extended hours without additional remuneration. In some pilot areas the court day will be reduced from five-and-a-half hours to four hours, and a case that would have been over in two days will now be spread over three. Later finishing times mean business owners operating on already tight margins will incur additional costs, such as overtime pay for staff.
Unless these fundamental issues in execution, resource and methodology are fully resolved, the pilot will be unsuccessful and any findings that come out of the evaluation will not command the trust or confidence of our members and their clients, the public or court users.
If the ultimate aim of the pilot is to examine the potential for using the court estate in a more efficient way, we believe there are other efficiencies that could be explored that would cause less disruption than extended hours and be more effective, such as improving the accuracy of scheduling. We understand that in many courts this is still done manually rather than digitally. As a result, hearing lengths are often not predicted with any accuracy. If this could be addressed it would assist everyone involved in the process, and would be one practical way to improve efficiency without the potential inconvenience for many court users that this pilot is likely to entail.