Extended operating hours in civil, family and criminal courts: what's the problem?

This piece was written by YLAL member Maariyaah Zamir, a recent LLB graduate.

The subject of flexible and extended working hours across civil, family and criminal courts has been discussed at great length over recent years. As part of the Court Reform Programme, early and late sittings in family and civil courts were piloted by HM Courts and Tribunal Services (‘HMCTS’) in 2019. This pilot had three objectives: to assess whether flexible operating hours would make justice more open and accessible; to evaluate the impact of flexible operating hours on court users, including members of the public and legal professionals; and to test whether flexible operating hours could make the justice system more sustainable and efficient. The full evaluation plan and summary can be read here. There was, however significant opposition to the suggested changes.

In October 2019, the Law Society expressed concerns regarding the negative effect the changes might have on solicitors and other court users, including but not limited to, those with children, disabled people and junior lawyers. Specific concerns included pressure on legal aid practitioners, the impact on low-income clients who may struggle to reach their hearings due to peak hours on public transport, and the increased risk of intimidation at night to court users.

The Law Society was explicit that any proposal to extend working hours must be carefully considered. ‘Going straight to extended working hours for already beleaguered judges, court staff and legal practitioners needs to be treated with the utmost caution,’ said Simon Davis, president of the Law Society of England and Wales.

It was made clear that prior to considering extended hours, the Ministry of Justice and HMCTS must first ensure the efficient use of the current operating hours. There should be no restrictions on judges sitting while there are courtrooms available where they could be working.

In June 2020, the Law Society again highlighted the detrimental, financial and practical impacts extended hours could have on legal professionals and parties involved. Moreover, the financial strain on firms was expected to be significant. Furthermore, in July 2020, the Ministry of Justice and HMCTS displayed a real intent to push through pilots for extended court operating hours. The first of these pilots commenced a month later, on 17 August 2020, at Liverpool Crown Court and continues now.

This is part of the HMCTS Coronavirus recovery plan to tackle the backlog of cases initially caused by the underfunding of the justice system and only exacerbated by the COVID-19 pandemic.

HMCTS chief executive, Susan Acland-Hood, justified extended court hours to clear the backlog of cases with the current number of cases at 41,599. Acland-Hood maintained that ‘we need extended hours, even if we do everything else we can to the full. The constraint on us is space, and extended hours lets us do more in the limited space we have (and indeed in the new space we add).’  She highlighted ‘it’s not an either/or between extended hours and new buildings – it’s both/and.

Additionally, the Bar Council released a statement on the proposals, which it does not support. Extending operating hours would come at a huge financial cost to taxpayers. It will make it difficult, as also highlighted by the Law Society, for those who rely on public transport to get to court on time or make it home safely, as well as making it impossible for solicitors to maintain their work on top of out-of-office-hours to attend calls at police stations.

The Bar Council wrote,

There is a better way. We endorse the multi-faceted approach to increasing capacity and are actively engaged in driving it forward: more efficient use of the current court estate, greater use of part-time judges, better and greater use of robust technology and additional court buildings, similar to the “Nightingale” hospitals. These “Blackstone” courts would use public or private buildings currently lying idle. Local barristers and solicitors are identifying suitable buildings to add to the court. This combination of solutions would allow safe distancing in existing buildings, add overall capacity to the number of courtrooms, and be convenient for participants. We urge the Ministry of Justice to work at pace with us to find practical and sensible ways to address the volume of cases being heard. It is only if or when this multifaceted exercise has been shown not to address the volume of outstanding cases that the government should even consider tampering with constitutional and established methods of determining justice.’

The Lord Chancellor has responded to these concerns by saying that the Government is not trying to permanently change the way the courts work.

Acland-Hood said, ‘We are not expecting anyone to work extremely long, whole days in court. It’s court building hours that we want to extend.’ She highlighted that there has to remain ‘a flow of work coming through’ to ensure that professions remain solvent.

While the professionals are important – and I was one of them for many years – it is not just about them, it is about the users as well, the witnesses and the people who want to access justice too. I, as lord chancellor, have to think of everybody and I would be failing in my duty if I didn’t do that,’ said the Lord Chancellor.

Although the Lord Chancellor commented on a Radio 4 interview that many legal professionals support this change, it is difficult to identify examples of support. Instead, the general reaction to his comments seemed to be one of outrage.

To conclude, it is clear that there are many concerns regarding these proposed changes. Arguably, the COVID-19 pandemic has pushed extended operating hours to the forefront of the recovery plan for resuming the courts’ system and in clearing the increased backlog of cases. The pilot being undertaken at Liverpool Crown Court will begin to highlight the effectiveness of extended operating hours in contrast to the effect it has on legal professionals and the justice system as a whole.