Rapid consultation on COVID operating hours in the crown courts – Law Society response

The consultation

HM Courts and Tribunals Service (HMCTS) has been piloting COVID operating hours (COH) in seven crown court centres as part of its criminal recovery plan to address the growing backlogs.

The purpose of this consultation is to determine whether HMCTS should extend the COH model to more courts from January 2021.

Our view

Our primary concerns throughout the pandemic has been to ensure that justice continues to be delivered and that all users are safe.

After years of underfunding and cuts, there was already a significant backlog in the criminal courts which has been exacerbated by the pandemic. We understand, therefore, the need to reduce the pressures on courts and tribunals, particularly given the unprecedented challenges presented by the pandemic.

While we share the objective of seeking to reduce the backlog in the court system, we remain to be convinced that COH have delivered any significant additional capacity.

Although more cases have been disposed of during COH, it appears to have been largely due to the fact that shorter, less complex cases are allocated for these times, which means that a greater number of cases can be allocated, and therefore a greater number of those cases crack.

It's our view that the vast majority of the benefits observed in the pilots would equally have been delivered had the same mix of cases been allocated to courts operating normal court hours.

Given the additional costs of running COH courts we do not believe these proposals deliver value for money for the taxpayer or will achieve the objective of clearing the backlog.

We suggest that other approaches might better meet the objective of clearing the backlog:

  • make proper and full use of our existing judges and courts, added to by part time judges and court space
  • before looking at COH, the Ministry of Justice must ensure it is making maximum use of normal court hours, with no restrictions on judges sitting while there are court rooms (real, virtual or Nightingale) available where they could be working
  • using unused public buildings – including buildings which have been closed but have remained unsold – as Nightingale courts

In our response we also set out our concerns about:

  • the consultation timeframe
  • the potential for discrimination
  • the data that is informing the COH proposals
  • transparency around the duration of the COH proposals

We've asked HMCTS to address the following:

  • how much extra capacity could actually be delivered
  • the location of the proposed sites where COH will be rolled out to (the intention is to roll out to a maximum of 65 locations)
  • what the costs would be to run the COH model in these sites
  • what the extent of the discriminatory impact would be

Next steps

HMCTS will be using the feedback received to decide whether to proceed with these proposals.

If it's decided COH should be rolled out, this will commence from January 2021 with a review scheduled in April 2021.

Maximise your Law Society membership with My LS