Changes to court working hours

HM Courts and Tribunals Service (HMCTS) has been piloting Extended Operating Hours both as part of the court recovery plans in response to the coronavirus pandemic, and as part of the court reform programme.

COVID Operating Hours

HMCTS has piloted COVID Operating Hours (COH) in seven Crown Court centres as part of its criminal recovery plan to address the growing backlogs.

The structure of the pilot is that certain types of cases will be listed for trial to commence at 9am, continuing until 1pm, with a different trial to begin in the same courtroom during the afternoon from 2pm until 6pm.

HMCTS published a rapid consultation to determine whether HMCTS should extend the COH model to more courts from January 2021.

Read the consultation, Court and tribunal recovery update in response to coronavirus.

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 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 have suggested that other approaches might better meet the objective of clearing the backlog:

  • make proper and full use of 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

Read our consultation response

Should a decision be taken to roll out COH the earliest first trials could take place from mid-January.

Flexible operating hours pilot

The pilot began on 2 September 2019 in two civil and family courts in Manchester and Brentford.

The pilot ran for six months and tested:

  • if civil and family court buildings can be used more effectively
  • the benefits of letting people attend court outside normal sitting hours (from 10am to 4pm)
  • how more flexibility impacts legal professionals (solicitors, barristers, court staff and judges)

Evaluating the changes

The pilot finished in March 2020, however the project timeline had to be revised due to the impact of COVID-19.

Before HMCTS decides if the pilot will be rolled out to more courts, the independent evaluator (IFF Research and Frontier Economics) analysed the data gathered throughout the pilots to measure the project’s success.

The factors they've looked at include:

  • public users’ experience
  • efficiency of courtroom use
  • speed of and access to justice
  • the experience of legal professionals attending an FOH hearing
  • the financial impact on individual solicitors, local authorities and legal support organisations

The Law Society sits on the Evaluation Advisory Group panel and offered expertise and guidance to the evaluators throughout the pilot.

Download a summary of the pilot evaluation plan (PDF 489 KB)

The final report is due to be published in early 2021.

Our view on extended court hours

In normal circumstances, we’re concerned that extending working hours in courts could have a negative impact on solicitors and other court users, including:

  • those with children or caring responsibilities
  • those with disabilities
  • vulnerable people
  • some religious groups
  • legal aid practitioners
  • junior lawyers
  • business owners (as later hours may mean extra costs, such as overtime pay for staff)

We’ve asked HMCTS for more details on:

  • whether solicitors with childcare or religious commitments would be exempt from extended hours
  • how solicitors’ working hours will be protected (and how they tell the court if they’re scheduled to attend cases in early morning and late evening slots on the same day)
  • opportunities to feed back on the pilot evaluation

We’ve fed back to HMCTS about specific concerns such as:

  • pressure on legal aid workers
  • that clients on low incomes may struggle to afford public transport at peak times (and so miss their hearings)
  • how the system will consider court users’ preferences when scheduling sessions – without doing this, courts could be breaching anti-discrimination legislation
  • that court users may be at higher risk of intimidation at night

We believe there are other solutions, such as first rolling out digital scheduling in all courts, which could make predictions for hearing lengths more accurate.

We’re also concerned that HMCTS has not considered the effect of court closures on extended operating hours and FOH .

The government has defined a day’s travel to court as someone leaving their home no earlier than 7.30am and returning home by 7.30pm. But if your local court closes and the replacement is using FOH, you may need to leave much earlier than 7.30am to attend an early hearing at 8am.

We raised this in our evidence to the Justice Select Committee in May 2019.

What we're doing

  • January 2021 – we'll be giving evidence to the Justice Select Committee’s session on the future of legal aid and court capacity
  • November 2020 – COH pilots finish and HMCTS issues rapid consultation
  • August 2020 – COH pilots begin in Crown Court centres – we issue guidance for litigators and solicitor advocates
  • March 2020 – FOH pilots in civil and family courts finish
  • September 2019 – pilot begins in Manchester and Brentford
  • July 2019 – the government publishes a framework for evaluating the pilot
  • May 2019 – we give evidence to the Justice Select Committee as part of its inquiry into how the court reform programme affects access to justice
  • November 2018 – following our extensive lobbying, the government announces that the pilot in criminal courts will not go ahead. It also acts on our suggestion to compensate legal aid solicitors for taking part in the pilot
  • December 2017 – we respond to HMCTS’s proposals, pointing out the strain on the criminal justice system
  • October 2017 – the government sets out its proposals for an FOH pilot
  • September 2017 – the government delays the pilot to February 2018
  • August 2017 – after we raise issues with LITs, and senior officials from HMCTS and the Legal Aid Agency, the government agrees it needs to engage more with criminal defence solicitors before starting the pilot
  • May 2017 – FOH pilot is pushed back due to snap election

Resources

COVID operating hours not the answer to criminal courts backlog, warns Law Society

Liverpool Crown Court extended hours pilot: guidance for litigators and solicitor advocates

HMCTS’ prospectus for civil and family court pilots

Our response to HMCTS’s proposals for the pilot (PDF 1183 KB)

Evaluation plan for flexible operating hours pilots (PDF 730 KB)

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