Courts: The flaws of extended operating hours

On 27 July 2021, Her Majesty’s Courts and Tribunals Service (HMCTS) – implementing the directive of Justice Secretary and Lord Chancellor, Robert Buckland – announced the introduction of temporary operating hours for the jurisdiction’s criminal courts. The purpose of this new provision, we were told, is to “ensure the justice system can build back stronger as quickly as possible”.

Why, then, do I find myself asking if it is really that simple?

Putting aside the political verbiage that ignores the true reasons our criminal justice system needs to “build back stronger” at all, these so-called ‘new’ and ‘temporary’ provisions will no doubt seem more than familiar to those of us who have been in the profession for any length of time. To all intents and purposes, they mirror exactly the terms of the extended operating hours scheme that has been rejected by the professions on each occasion it has reared its ugly head.

Anyone reading Solicitors Journal will be aware of the objections raised against extended operating hours in the past. You will know the effect the scheme has on all criminal practitioners, on not just what passes for our work/life balance but also our work/work balance; when, we have asked, are we expected to prepare trials if we are now working into the night at court?

You will know the even greater damage it does to those professionals who are also primary carers at home, a role still predominately filled by women and which therefore impacts female barristers far more than male, in many cases making a career impossible for those with childcare responsibilities. We are all aware of why we said ‘no’ when the scheme was mooted on two previous occasions and it is not my intention to rehearse those reasons in this article.

But of course, ‘no’ never means ‘no’ inside the Ministry of Justice (MoJ) and so now, like a bad penny polished with a sheen of MoJ newspeak and re-presented as a shiny gold dollar, extended operating hours are back. Only this time, we have not been asked for our views and instead we are apparently expected to accept that which we have previously rebuffed.

In the name of “building back”, criminal practitioners are now expected to embrace wholeheartedly those changes which will add exponentially to the burdens of our already ‘stretched-to-breaking-point’ professional lives.

To welcome eagerly changes we have already refused. To agree gratefully to changes for which we will be paid not a penny more than the derisory rates already allowed. To consent enthusiastically to changes which will result in careers in criminal law being moved out of reach for whole classes of our peers.

We are expected to do all of this. And if we do not, we will be condemned as those who refused to go the extra mile to put the criminal justice system back on track after the pandemic. A refusal of this entirely unacceptable scheme would, once again, result in the blame for its failure being placed on the lawyers.

Indifference

It is this last fact – this inevitable outcome – that gives me pause when I see the so-called purpose of the new scheme. The fact that, should the professions refuse it, we will be blamed. Because I cannot help but suspect that this is the plan; that this is the real purpose.

As I have argued on these pages before, this government has no interest in the real problems within the system. We all know that. We have all lived that reality. What interests this government – what concerns our esteemed Lord Chancellor – is not justice. It is headlines. And right now, a lot of those headlines are focused on our crumbling courts. On the delays that see complainants and defendants wait years for their case to be heard. At long last, this has caught the attention of the press. And so, finally, it also has the attention of our front-page obsessed ‘leaders’.

What, then, have the MoJ chosen to do? Have they taken the system by the horns and shaken it back into shape? Have they invested the money – the literal billions of pounds – needed to rectify the disaster of decades of underfunding? Have they carried out a proper review of legal aid, that long promised, hugely delayed reassessment of how defence lawyers are paid, so necessary in order to stifle the mass exodus of talent from the professions and reinvigorate the stuttering recruitment of the next generation?

Have they… oh, what’s the point? Of course, they haven’t done these things, or anything else of any use whatsoever. What they have done is dust off a repeatedly rejected scheme which they know the professions were right to reject and which they therefore know the professions will reject again. And following that inevitable further rejection, the MoJ gets to say ‘well, we did our best, didn’t we? We tried but the lawyers wouldn’t play ball.’

In other words – if I’m correct, of course – then the MoJ has managed to find the cheapest way to pass the blame for the sheer state of criminal justice from the politicians and on to the professions. And the public will fall for it because it’s the story the press will ultimately give them. Lawyers as the bad guys – the only headline simpler than ‘politician equals liar’, and a much easy story to tell.

You will no doubt question my confidence in this conclusion; I realise I sound unusually certain about it. But that certainty is not based on cynicism. Not entirely anyway. Instead, I have reached this conclusion through what I have witnessed in practice over the past few weeks, as the reduction in social distancing restrictions has allowed for our courts to reopen and for crown court trials to begin in earnest.

Insufficient support

The simple fact that has been revealed, is that there are no longer sufficient criminal barristers to conduct the trials that are currently listed within ordinary operating hours, let alone enough for courtrooms to be running two trials per day.

I have experienced this directly. For the very first time in a 20-year career, I attended a Crown Court in the South East to defend a trial only to be told that the Crown Prosecution Service had been unable to find counsel. This was an entirely new one on me but, having trawled through ‘legal Twitter’ and then discussed the occurrence with a number of other lawyers from different circuits, I discovered that it was happening up and down the country.

As courts are ramping up their trial schedules, we are discovering the number of practitioners left is insufficient to cover the work that exists, both for the defense and the prosecution. And this is on a one sitting per court per day basis. If the bar cannot cover a one-sitting list, in what world is a second sitting per day even remotely viable?

The MoJ has of course denied this. It provided no statistics to support its denial, which is a failing, given they are the ones with the figures. They could disprove the suggestion at a stroke if those figures supported them. But it goes further than that. The MoJ is now calling in every crown court recorder it can find to sit on criminal matters. That much is true.

But due to the dwindling numbers at the criminal bar and the demand for criminal barristers to be, well, criminal barristers, many of those recorders are not what we would usually expect. Just three weeks ago I appeared to defend a sentence before an elderly civil practitioner who announced at the outset, it had been so long since he had appeared in a criminal court, he did not have a log-in for the digital case system. He had clearly not sat for a good number of years. But he was he sitting now. The maths on that one does itself, surely?

It is for this reason, that I suspect the professions are being lined up to take the blame for the damage successive generations of politicians have done to our criminal justice system and which has now – most importantly in Downing Street – made the front page.

The line is already ‘covid19’  – that the current dire situation has been caused by the pandemic and by the lockdowns. And the solution? ‘Temporary’ operating hours, a scheme Robert Buckland knows we will refuse and which he also knows is in any event unworkable as there are insufficient criminal lawyers, recorders and judges to achieve even ordinary operating hours. Why, then, suggest something that cannot be achieved? A scheme that cannot work? Because Robert Buckland also knows the scheme’s impossibility will never be proved because we – the professions – will never accept it.

And then we – the professions – will once again be the bad guys. If only our government could be this competent and far-sighted at something more useful than passing the buck.

Tony Wyatt, Associate Counsel at Ewing Law and best-selling crime author under the pseudonym Tony Kent ewinglaw.co.uk