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Flexible court hours pilots 'fundamentally flawed'

16 May 2017

A government pilot to extend court opening hours could heap more pressure on fragile criminal legal aid services, the Law Society of England and Wales warned today.

Despite the limits of the pre-election period, HM Courts & Tribunals Service (HMCTS) have decided to establish "local implementation groups" to explore the feasibility of extending court operating hours.

Law Society president Robert Bourns commented: "Solicitors representing people accused of wrongdoing already attend police stations at any time during the day or night under the duty rota scheme. Fees for criminal legal aid work have not increased for more than 20 years - indeed they have been cut - and criminal legal aid practices already operate at little or no profit. Under this new government plan solicitors would be expected to attend court during unsocial hours for no uplift in pay.”

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. The work-life balance concerns that came up in this previous exercise have not been addressed, nor has the impact on practitioners generally, such as those with responsibilities for care.

A court that starts hearings from 08:00 will, in reality, mean a 07:00 start for the defence if they are to be ready for trial. For those cases that finish at 20:30, practitioners are unlikely to leave the court until at least 21:00. There are also the practical dangers for court staff, prosecutors, defence lawyers, defendants and witnesses, who could be leaving the court building five nights a week after 20:30. Travellers are more vulnerable late at night.

Under current arrangements, evenings and early mornings are often used for necessary preparatory or administrative work. This is important. Defence solicitors are often dealing with extremely sensitive cases, involving the most vulnerable in Society.

The system is also dependent on access to support staff and firms' employees, none of whom are likely to extend their working day without appropriate pay. The goodwill and morale of the criminal defence community has severely diminished following an 8.75% cut in fees in 2014 with the prospect of further cuts to come.

"This means solicitors operating in the proposed pilot areas will be victims of a postcode lottery, incurring additional cost because of the bad luck of being in one of the areas selected for the pilot,” said Robert Bourns.

“It is not acceptable to operate a pilot without paying solicitors properly for the additional cost they will incur as a result."

He added: "We remain unconvinced that the scope or evaluation of the pilot will be more robust than its predecessors. The cost/benefit findings of a pilot which has operated, short-term, on goodwill, will be impossible to extrapolate on a national level. If this scheme is rolled out nationally without any additional remuneration, in our view a new tender process would be required, as these significantly extended hours were not on the table for this current contract.

“Unless these fundamental issues in execution, resource and methodology are fully resolved then 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.”

The Law Society has raised these issues at the local implementation groups, as well as with senior HMCTS and Legal Aid Agency officials. HMCTS have accepted that they need to engage further with the defence community on the design of the pilot as well as the evaluation.

If the pilots do proceed, the Law Society will be providing a simple feedback form in order to record the real cost to practitioners that are subject to the pilot.

Notes to editors

The extended operating hours pilots were due to start in May, but have been postponed due to the snap election. They will test a number of different operating hours models with some courts starting hearings at 08:00 and finishing at 20:30.

HMCTS propose to run the pilots at six different courts across the country over a six-month period:

  • Crown courts: Newcastle Crown Court and Blackfriars Crown Court
  • Magistrates' courts: Sheffield and Highbury Corner
  • Civil/Civil and family courts: Brentford County Court and Manchester Civil Justice Centre

According to an independent evaluator, half of the sittings during the 2013 trial were abandoned and staff shortages at weekends resulted in adjournments, with knock-on delays as cases were relisted to be heard in the week.

Press office contact: Catherine Reed | catherine.reed@lawsociety.org.uk | +44 (0)20 7316 5624