Criminal defence solicitors can’t be magicked up to cover extended hours, warns Law Society

Plans to extend court hours will hit overstretched and underfunded criminal defence firms hard when the capacity to cover the additional hours may not even exist, the Law Society of England and Wales today warned.

As part of its court recovery plan, HM Courts and Tribunals Service has agreed to pilot a COVID-19 operating hours court in up to seven courts across the circuit.

The Crown Courts named so far where the COVID-19 hours are going to be tested are Liverpool, Hull, Stafford and Snaresbrook.

“We have repeatedly made clear to the Ministry of Justice that extended hours are not the right approach to tackling the backlogs in the courts because of the significant impact they would have on court users, legal practitioners and how our justice system functions,” said Law Society president Simon Davis.

“There would be financial and administrative implications for solicitors and those with caring responsibilities are likely to be hit hardest. Ever fewer criminal defence lawyers are being asked to do ever more work, and the profession is close to breaking point.

“Despite our opposition, a pilot is going ahead to test out a model of extended hours. Court listing is a judicial function, so if a court chooses to list hearings in this way, there is little the profession can do about it.

“If extended court hours are to be imposed on solicitors, the additional costs they face must be covered so they can continue to do their job properly, uphold the rule of law and allow people access to justice.

“If, even with additional payments, the defence community does not have the capacity to cover the additional hours, there will be no magic wand that can be waved to generate it."

As of 2 July, there were just 1,146 firms holding a criminal legal aid contract, already 125 fewer criminal legal aid firms than in 2019 and far fewer than the 1,861 firms that existed in 2010.*

“The fragile criminal defence profession is already under great physical and financial strain, on call to police stations at all hours and with swathes of solicitors on furlough,” added Simon Davis.

“Our members have already gone to great lengths to keep the justice system operating, but there comes a point where they just cannot cope with even more demands. This is not about what the profession is willing to do. It is about what it is able to do.

“Before looking at extended hours the Ministry of Justice and HM Courts and Tribunals Services must ensure that it is making maximum use of normal court hours and the existing court estate, quickly take up further building space and avoid any restrictions on judges sitting while there are court rooms (real, virtual or Nightingale) available.”

The Law Society has published guidance for litigators and solicitor advocates who are faced with the prospect of cases being listed within extended hours sessions.

Notes to editors

*Figures from our Justice on Trial 2019 report and UK Parliament website.

Read our previous release on extended hours and our joint statement with the Bar Council of England and Wales on jury trials, court capacity and dealing with the backlog.

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Press office contact:Nick Mayo | 020 8049 4100

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