Monday Message 30.11.20
James Mulholland QC
Last Thursday, HMCTS officials held a meeting with the legal profession in relation to the introduction of Extended Operating Hours Courts at which the direction of travel was clear to all. The membership of the CBA in a survey three years ago rejected the concept of Extended Operating Hours as having a very significant discriminatory impact on those with young children and other caring responsibilities. Two years ago, HMCTS finally paid heed and abandoned their plans to seek to implement the scheme. We said at the time that if the proposal had been brought into force it would have represented ‘the final nail in the coffin of viable professional practice’. We added that the concept of extended hours coupled with already ‘inadequate rates of pay would have finished many of us off’. HMCTS said at the time that there were ‘particular pressures in the criminal jurisdiction’ including the manner in which cases were listed. They went on to state that they had listened to the feedback from legal professionals and decided to abandon their proposals. They acknowledged that there were concerns that such hours would potentially create further delays ‘causing additional stress and anxiety for victims, witnesses and defendants and creating more work for an already stretched criminal justice system’. Two years on, matters have worsened. Fewer people than ever are coming to the criminal bar. Those from economically deprived backgrounds are seeking alternative career paths. The retention of women at the bar has also worsened.
It is in this climate that we found ourselves at the meeting with HMCTS and legal representatives including the Bar Council, Circuit Leaders and Law Society; a meeting at which we were, effectively, not being asked but being told that there were plans for Extended Operating Hours Courts to go ahead from January 2021.
Two years after it was last rejected, we are again facing the introduction of a scheme which brings discrimination and unreasonable working practices. There will be a number of groups with protected characteristics impacted by this. The first criminal barristers who will be forced to pass on this work will be those with caring responsibilities. Meeting the higher costs of peak travel and extended childcare will further eat into what is left of any fee.
Women will be amongst the hardest hit and continue to leave a profession where, increasingly, obstacles appear to have been placed in their path by government. This gives them no choice. Either accept working hours that are unreasonable or risk losing the case and earning no money because the lay client whom they represent understandably wants their trial to be heard within a reasonable time.
In relation to the rest of the criminal bar, there is a complete lack of understanding or consideration for the work we do. Yet again, cost savings take precedence over fair and reasonable working practices. Numerous self-employed barristers travel several hours on public transport to conduct a case and the court location will change from one day to the next. Criminal courts, deemed a public service throughout this Covid period, depend on criminal barristers in order to function. The survival of the criminal courts is symbiotically entwined with the financial viability of criminal barristers to be able to attend court for prosecution and defence. The court hearing is only the end product. Outside court, barristers are compelled to spend many hours preparing such cases and others at rates which are often rarely above the minimum wage. For many years, court hours have accommodated these basic requirements. Placing additional pressures upon them by insisting that, at short notice, they have to conduct a trial in circumstances which involve setting off for work in the middle of the night or returning home after family have gone to bed further detracts from the viability of this profession for all of us.
Last week the Treasury, at last, invested some money in the criminal justice system. In terms of numbers, the Spending Review stated, “[a]n additional £337 million for the criminal justice system in England and Wales. This includes £275 million to manage the downstream demand impact of 20,000 additional police officers and reduce backlogs in the Crown Court caused by Covid-19.” This package of extra annual funding starts the painfully slow process of reinvesting in criminal justice and for that we express some relief, coming after a decade of commensurate annual cuts. However, this one-off extra amount will, almost certainly, be insufficient to deal with the anticipated volume of work entering the system coupled with the backlog. In its April 2020 report, before the full extent of the pandemic was appreciated, the Institute for Government estimated that, on top of current funding, the criminal courts alone needed an additional annual £225 million for the next four years to deal with extra charging coupled with up to £110 million per year for the next two years to be able to reduce the current backlog amounting to an extra £335 million per year. There also needs to be a Treasury commitment to repeat and increase at this level for each and every year for the next five years.
The extra funding needs to be applied in fair and balanced ways with all those who work within the criminal justice system in mind. It is ironic that the first initiative sought to be implemented after funding has been awarded is the retrograde approach of Extended Operating Hours, which demonstrates a complete disregard for those who work within the system. Some of the money needs to go into accelerating the expansion of physical criminal court space beyond the existing Crown Court estate by the addition of Nightingale Courts. As has been said before, the solution in a pandemic is not to cram everyone into the existing space available and operate hours which put even greater pressures, both physical and financial, upon a beleaguered legal profession but to find other buildings capable of conducting trials during normal working hours.
EOH presents yet another existential threat to the Criminal Bar. Once the most financially vulnerable are forced to leave the profession, there will be insufficient numbers to handle the existing case load let alone the expected increase in case volumes. Government needs to remember the, incredibly, negative impact of such initiatives upon the profession. In 2015 we took action, refusing returns, in solidarity with criminal legal aid solicitors when they faced a seismic reduction in the number of legal aid practising certificates which would have reduced solicitor firms by about two thirds within months. We acted then to save criminal justice. Cuts to criminal advocates’ legal aid fees and a failure to increase prosecution fees resulted in the Criminal Bar balloting for and taking action in 2018 and 2019. We not only work within the criminal justice system but those of us who remain have a responsibility to try and preserve it for future generations.
HMCTS have failed to conduct a proper assessment in accordance with their legal requirements under the Equality Act 2010. The consultation process now initiated provides insufficient time for proper representations to be made. We are taking steps to address these issues. If HMCTS maintain their position that these courts will be introduced, we will take action.View more news