I’ve been absent without leave from blogging duties for the past few weeks, though I’m guessing that no one noticed. What with the election, a heatwave and Wimbledon, people have had other topics to fulminate over.
Besides, I’ve had to focus on the day job, as I’ve got a tax bill coming up. ‘Back to back sex’, as we call it in the trade, is all consuming. So even I haven’t had time to get angry about anything.
However, inevitably my bad temper has re-surfaced and I’ve had to shove my head back over the parapet. Pressing court related matters have caused my blood pressure to soar – namely, the contentious issue of the MOJ’s proposed ‘flexible operating hours’ scheme.
Now, when the MOJ and their partners in crime, HMCTS, talk about ‘flexible operating hours’, what they REALLY mean is that they want to have whatever courthouses they haven’t already closed opening earlier and finishing later, to the advantage of almost no one except the MOJ themselves, and to the detriment of pretty much anyone who will have to work in or attend them. Some courts will apparently be starting work at 8am, and some probably finishing at 8.30pm. And when they talk about a ‘pilot’, that’s being economical with the truth as well. Make no mistake, this is almost certainly a done deal.
Precise detail has been scant up to now on the MOJ and HMCTS websites. However, in a new blog posted by HMCTS head honcho Susan Acland-Hood herself – see the link here – the game has been given away. In classic management speak, our Susan tries to pretend that this ‘pilot’ is all about “building it [the court system] around the needs of our citizens”.
Let’s just unpack a few of those lies, damned lies, and statistics. Don’t be fooled into thinking that the MOJ or HMCTS actually WANT our citizens to have access to justice. If they did, they wouldn’t be romping about the jurisdiction shutting courts left, right and centre, so no one who has to appear at or work at court actually has one local to them. They wouldn’t be gleefully cutting all legal aid to the bone, and then acting surprised when the public complain that justice is out of their financial reach. They wouldn’t be slicing the courts’ budgets to ribbons, meaning that half the court rooms in the country seem to be sitting empty at any given time as there are no judges or staff to man them.
They’ve even (get this) spent money on making a video propagating the contents of this blog. Seriously. I bet you that you can’t get all the way through it without reaching for the sick bucket: it’s here.
Yes, HMCTS even have their own YouTube propaganda channel.
Now, this ‘flexible/extended/longer’ court sitting hours isn’t a new idea from the MOJ, but rather the bones of previous failed experiments – like the one at Croydon Crown Court a few years back (which all in the profession and judiciary know was an abject failure, yet HMCTS seem now to be trying to pretend was a revelatory success) – which are once again being vomited up onto the carpet like an unwelcome fur ball to please the Treasury. And no, it won’t be a coincidence that Susan Acland-Hood’s previous job was some sort of policy wonking at the Treasury.
I remember the days when Bow Street Magistrates’ Court tried to run ‘night courts’, based on a US model which was running in the ’80s. Only problem was that little or no extra money was put into the experiment, to ensure that the courts were staffed with the required admin assistance, for example, or that there was sufficient access to the relevant paperwork and facilities at 3am. Needless to say, this dog’s breakfast didn’t last long, and the Bow Street site was soon being sold off for a planned hotel development.
(Which is probably what the MOJ want for most of the court estate, if we’re being honest. I’m convinced they want all Crown Courts to be sited in large out-of-town retail park metal warehouses, like judicial branches of Ikea.)
Then there were the 2011 riots, where courts like Highbury Corner sat extended hours to deal with the sheer volume of work. Now, this was not without its problems, chief of which was a lack of papers/legal aid processing/cell staff, etc: the result was a large number of adjourned cases and a lot of wasted time. And I don’t recall the local Crown Courts being forced to sit extended hours either, though their lists were substantially busier. Crucially, this whole caboodle relied almost entirely on the goodwill of lawyers and court staff, none of whom received any pay increase for their troubles. (In fact, criminal defence solicitors subsequently had their fees cut by the MOJ.)
I remember saying to solicitor friends at the time that they shouldn’t cooperate with the riot courts sitting so much earlier and later in the working day, because before you’d know it the MOJ would be suggesting that this should become the norm. But no, I was told, it’s a time of crisis and we’ve got to pull together and make the effort. After all, there’d been riots on the streets.
Well, there isn’t civil unrest right now (though in many ways I’m surprised not), yet here we are again, as I warned, having a ‘pilot’ foisted on us all, and this time more widespread than the Highbury Corner Incident. When any Government agency calls something a ‘pilot’, that means it’s a scheme they’re determined to bring in no matter what the views are of those people who have to work it, and they’re prepared to ignore all expert opinion from practitioners on the topic, and all evidence.
When HMCTS start suggesting that they are “letting people have their cases heard outside the traditional 10am to 4.30pm court day”, they make it sound as if they’re doing everyone a favour. Be under no illusion: Ms Acland-Hood (has she ever actually been inside any criminal court for an entire week, let alone listened to any of the practitioners who have to work there?) is not likely to be any friend to the Bar or solicitors. It appears she has no previous professional experience of the court system at all.
If HMCTS are sitting cases outside traditional court hours, this will be for the convenience of HMCTS and no one else.
In her blog, Acland-Hood blithely suggests that lawyers and judges won’t have to endure longer days in court and doing that all important out of court prep at 3am as a result of this nonsense. One only has to look at the proposals for the Crown Court pilots at Newcastle and Blackfriars to see that can’t be right. There, HMCTS is proposing to sit two shifts, basically 9.30am-1pm and then 2pm-6pm. So if you have a trial listed in either of those slots you will either need to arrive at court at 8.30am or 1pm. If your trial is listed in the afternoon slot, then bang goes any chance of, e.g., arranging a conference in another case to take place after your court day and your client’s working day, since you’d be lucky to be leaving court before 7pm, never mind getting back to Chambers to see another client. And if you’re listed in the morning, bang goes the school run.
And does this mean that a different judge is going to be sitting in the morning slot and the evening slot? Is HMCTS planning to double the number of judges employed? They can’t even open all the courtrooms they have during normal hours at the moment, let alone under this new expanded scheme. Why do you think there’s such a backlog of trials?
The real aim, of course, is to close as many courts as possible and shoehorn all that work into the bigger court centres. If you hadn’t guessed that already, Susan Acland-Hood revealed it herself on Twitter on Sunday.
The blog also claims that HMCTS have “worked closely with judges and a range of organisations to design the pilots”. I’d love to know who those other “organisations” are, as they certainly don’t seem to include any of the professional bodies for criminal lawyers, who are universally opposed to the scheme. And breathtakingly, it’s also suggested that “keeping expensive [court] buildings empty before 10am and after 4.30pm, rather than having fewer, better maintained buildings open for longer, has a real cost”. It’s as if we all turn up at 9.55am if we’re listed at 10 for a trial, and all evacuate immediately after finishing!
When does Acland-Hood think all that trial prep which can only be done at court when both counsel are together, for example, actually happens? It’s when we’ve arrived at court at 8.30am or stay at court working until 6pm already, that’s when!
As for the idea that cases could be scheduled for hearing “more responsively but also more predictably”, this is just risible. We all hear daily of examples of list officers riding roughshod over any requests to accommodate the availability of counsel, and I can only see that getting worse. Last week one of my colleagues was complaining that her clerks had written to a large London Crown Court to request that they didn’t call in a particular warned list trial until Wednesday, to enable her to conduct a PTPH at another London Crown Court on the Tuesday. Not only was there absolutely zero acknowledgment of the request from the court, but the court then promptly listed that warned list trial on the Monday, thereby ensuring that she now can’t conduct the Tuesday hearing elsewhere and it will have to be covered by someone else. This sort of caper happens so often, the only conclusion to be drawn is that it’s deliberate.
Last weekend, Acland-Hood gamely attempted to engage with various criminal practitioners on Twitter – notably @BarristerSecret, @RebeccaHerber44 and @thepubliclawyer – when HMCTS was called out on the contents of the blog. And fair play to her. However, it rapidly became clear that she doesn’t have the first idea about how the criminal Bar in particular actually works, and how much the courts absolutely rely on the flexibility and goodwill which we currently provide (but almost certainly won’t for much longer). Frighteningly, @RebeccaHerber44 actually had to point out to her that you can’t exactly job share a rape trial.
It’s as if the MOJ and HMCTS think that your local Crown Court can be operated like your local out-of-town 24 hour Tesco superstore.
My neighbour works for Tesco, so I asked her about flexible shifts and extended operating hours and so forth. And guess what? It turns out that their system isn’t, well, exactly that flexible! People working early shifts or late shifts, or any shifts, get given their confirmed shifts at least TWO WEEKS in advance. Their working hours are fixed. So bang goes your court warned list system then. Bang goes hearings being put into tomorrow’s list by the court at 4pm the previous afternoon without warning.
On that premise, no more listing trials at less than 12 hours’ notice to everyone, if the early shift is starting at 8.30am! And how are you going to have Crown Court trials starting then, or even starting later and finishing after 6pm, when there will be jurors who have parental duties such as school runs to deal with? How are you ever going to get the likes of Serco and G4S to get Defendants who are in custody to court for their trials in time for a 7.30am cells conference with their barrister for a trial starting at 8.30am – when they can’t even get them to court in time for a 10.30am start at the moment?
Tesco don’t put their staff into two different shifts on the same day either, unless their staff agree to do a double shift – for which they get paid more money! And if I wanted to do shift work, I would have taken up another profession.
The pilot also appears to have assumed that all criminal barristers only ever work in one court centre which is local to them, when nothing could be further from the truth, or that we only ever do one hearing per day, or that we have any sort of choice about when our cases are actually listed by the court. It also totally overlooks the fact that we’re self-employed, so not under any obligation to, for example, accept a brief to cover someone else’s hearing when the originally instructed counsel isn’t available.
I’ll be willing to bet that if a hearing in case A is listed in the early shift, and a hearing in case B is listed in the late shift, and Barrister X is the instructed advocate in both of these cases, the list office will be laughing in the face of Barrister X’s clerks when they request that both hearings be listed in the same shift to avoid Barrister X having to double up.
I tell you this for nothing: I shan’t be agreeing to cover anyone else’s mention/PTR/returned trial if it means arriving at court at 7.30am – which I would need to do if the hearing was listed in an 8.30am list. At least we might actually get ‘no returns’ back by default!
There is, of course, no mention of any increase in fees to cover the inevitably longer days which we will be expected to work. And I’m guessing that it won’t be long before the LAA are suggesting that, as the court shift sessions are shorter than the current full court day, then refreshers for people doing trials in the shorter shifts should be cut.
The problem for the MOJ and HMCTS is that they have assumed the cooperation of criminal lawyers, but this ‘pilot’ comes at the same time as the powers that be are trying to impose further cuts of 8.5% to solicitors’ legal aid fees, and a new system of remunerating barristers which will see most having their fees reduced by up to 30%! The current payment scheme is predicated on the basis of a court sitting day of 10am to 4.30pm, but I’ve seen no suggestion of any fee increase for now being told to undertake work at unsocial hours. So it’s hardly surprising that the mood is militant.
In a widely disseminated article (see link here), the Chairman of the Bar Council has – in terms which are more polite than I would have been – set out the inevitable difficulties which would follow the imposition of these new working hours across the board. The chief of which is that absolutely no barristers or solicitors who would have to work within the new scheme have a good word to say about it or wish to cooperate with it.
In fact, most, including me, have two words to say about this ludicrous scheme. And the second one is ‘off’. Meantime, I’m off to get an application form for Tesco from my neighbour. I think the uniform is quite ‘me’, and at least I’ll get a staff discount.
(Main pic: Robert Vega Design http://www.robvegadesign.com)