The Ministry of Justice (MoJ) has announced its plans for the flexible court pilots. There is a menu of options that can be chosen by various courts: extended court sittings on week days; the extended use of virtual courts, in some areas on a regional basis; starting prison-to-court video link hearings earlier in the day; extended sitting hours on Saturday afternoons; and Sunday court sittings. Courts are meant to have consulted local practitioners about the proposals but it is not clear how far any concerns raised by practitioners have in fact been taken on board.
Pilot details
The MoJ has announced 48 pilots although they may be subject to changes according to local need and agreement.
Read the announcement and the pilot dates
If you work in one of the pilot areas you can also obtain information about what is planned by contacting your local Law Society relationship manager, or from Janet Arkinstall, the Society's criminal law policy adviser, whose details are listed below.
Our concerns
The Law Society is sceptical that any of the suggested benefits of the flexible courts pilot will be realised, and considers that this initiative will likely be an expensive way of making the Magistrates' courts less efficient, at a time when they are experiencing decreasing workloads, and all criminal justice agencies are struggling with budgetary cuts. We have made these concerns known to government.
In our view it is inappropriate for the courts to sit outside normal business hours and to require solicitors to attend weekend hearings, where there is no emergency and the cases are not of the sort usually undertaken at weekend sittings. There will be significant additional costs to all agencies, as well as to solicitors firms, who may be forced to deploy staff and pay them additional enhanced rates.
The Legal Services Commission (LSC) has said it will not pay any additional amount for own client cases, while the usual Saturday morning enhanced duty solicitor rates will apply to duty solicitor work. The LSC has told the Law Society that participation in the flexible court pilots will be voluntary insofar as participation in its duty solicitor rotas covering the extended sessions is concerned; however, the listing of own client cases is a matter for the court. A Ministry of Justice document 'Flexible CJS - Q and A for defence practitioners' contains the following question and answer:
'Can attendance at court outside of 'normal office hours' be enforced or is it a voluntary basis?
The Courts Act 2003 provides a power for the Lord Chancellor, following consultation with the Lord Chief Justice, to give directions as to the days on which and times that magistrates' courts may sit. Cases will be listed for the pilots in the same way that is done so now and defence practitioners will be asked to attend court when their case is listed.
We hope that practitioners will take a constructive and co-operative approach to the pilots and attend court when their cases are listed. If a defence practitioner is not able to attend the court will consider all the circumstances and make a decision in the interests of justice. This would include taking a pragmatic approach to finding a solution. The court should be informed at the earliest opportunity if there are difficulties.'
For further information, please refer to the Flexible CJS – Q and A for defence practitioners document (PDF), prepared by the Ministry of Justice.
Solicitors will need to make representations to the relevant courts according the merits of each own client case when listing decisions are being made. They will need to bear in mind their duties to their clients and to the court when considering the various options available to them to ensure that clients who may appear in Saturday afternoon, Sunday or extended weekday sessions are represented if they, or their staff, are unable to attend.
Solicitors should also consider the terms and conditions of any staff who may be deployed in extended court sittings, particularly those on weekends, if their contracts of employment do not cover work at those times; they should also take into account any relevant employment law, including the regulations under the European Working Time Directive.
We want your feedback
The Law Society intends to monitor the pilots and gather evidence of members' experience, including the difficulties caused to them, additional costs incurred (both to defence firms and to other criminal justice agencies in their area), and any benefits. We will share this information with the Ministry of Justice as it evaluates the pilots in the new year. We very much want to hear from practitioners as to the affect the pilots have on your work and practices.
Contact us
If you have any questions, or wish to provide the Law Society with any information about your local flexible court pilot, please contact your relationship manager directly or by emailing regionalsupport@lawsociety.org.uk, or Janet Arkinstall in the legal policy directorate.