Operating Hours: Time Does Not Expand

Guest blog:
Georgia Luscombe in our series on extended hours

This morning, Robert Buckland QC MP was interviewed on Radio 4 about possible ways to deal with the backlog of trials waiting to be heard in criminal courts. There are an estimated 500,000 cases in the Magistrates’ Court and over 40,000 in the Crown Court. The first thing to note, however, is that the bulk of this backlog is not due to the coronavirus pandemic grinding trials to a halt. It has long been known that this government and its predecessors were so intent on tightening the purse-strings that they would rather leave functional courtrooms closed and salaried judges at home than properly fund a court estate at full-capacity. So it came as some surprise to hear Buckland say, “the first thing to do is scale up capacity and use time in as expanded a way as possible and let’s see how far we can eat into the case load”. 

There is mounting political pressure on the government to manage ‘law and order’ effectively. For years now, criminal law practitioners have been complaining about delays to justice from the use of ‘release under investigation’, leaving suspects in limbo without charge for years to avoid time restrictions on bail. It is then galling to represent a client at their Plea and Trial Preparation Hearing in the Crown Court, years after an offence took place, and hear that their trial cannot be listed for many more months. Make no mistake, however, this was well before coronavirus. We can trot out the refrain that ‘justice delayed is justice denied’ and have been doing so for as long as I have been at the Bar. The police are underfunded and short on time, the CPS do not have enough staff, legal aid rates have been savaged so far that defence solicitors can barely pay their overheads. There is no reticence from criminal barristers to safely resume jury trials; our income wholly depends on it. The issue is that after years of swingeing cuts to the criminal justice system, there is no goodwill left to eke out of us. We know full well that ‘flexible operating hours’ means forcing practitioners to work longer and under even more pressured conditions to dig this government out of a hole of its own making, that we have been warning them about for years. 

My first year of practice (from the beginning of my second six) was primarily defending in the Magistrates’ Court, conducting trials on legal aid rates (usually £100 per trial). I practised about 50/50 in London and outside but usually with at least an hour’s travelling each way.  This was my working life: 

6 – 7am: Wake up, check e-mails, get ready. 

7 – 7.30am: Leave to travel to court.  

9am: Get to court, speak to the prosecutor, get last minute disclosure of key material to digest. 

9.30am: Conference with my client.
10am – whenever (sometimes 3.30pm because court will just list all trials at 10am and try to get through them, with no concern for lawyers’ wasted time): Waiting for trial to be called on. 

4.30pm: Finish in court. 

4.30 – 5pm: Another conference with client. 

5 – 7pm: Travel home. Write up today’s notes. At some point (usually around 5.30pm) receive papers for tomorrow. 

7pm: Eat dinner, try to forget today’s case. 

8 – 10pm: Prepare for tomorrow’s case. 

10pm: Inevitably get last-minute e-mails, maybe get instructed on another short hearing to squeeze in before the main event tomorrow. Struggle to switch off because of the adrenaline burst this late in the evening. 

Then factor in that most pupils and junior barristers are on a Saturday court rota. Mine usually meant making a bail application every other Saturday morning. I know pupils at other Chambers who had to go court every single Saturday. On Sunday you would try to catch up on admin, advices, remembering to renew your professional indemnity insurance, making sure you’re doing some CPD, thinking about topics to do a seminar on so that your practice doesn’t stall. For solicitors, they’ll be on police station duty rota, taking phone calls all night and then starting a day’s work at 9am. What would that schedule look like if a day in the Magistrates’ Court didn’t end until several hours later? Will they change listing practices so that you don’t waste an entire morning at court if your case isn’t heard until 5pm, or will they continue to insist that court time is so precious that yours is wholly insignificant in comparison? 

I truly fear extensions to the working day in the Crown Court. My second Crown Court trial was a late return; I remember coming home from court, spreading papers, Archbold and sticky tabs across my dining table and apologising to my flatmates that I’d be there until late and please could they not watch TV in here this evening? It would be a one-off, I said. It was not a one-off… Every night that week would be spent writing out cross-examination questions, leafing through Archbold, trawling through unused material. And so it has been for several other trials since then. I’m grateful for understanding flatmates who enjoy me practising jury speeches on them, provide snacks,  sometimes take my washing out for me when I’ve run out of black tights. I cannot imagine having to feed children, put them to bed or be woken up by a crying baby during the few hours of sleep I actually manage. The prospect of having any kind of work-life balance at the criminal Bar if I do have children one day seems totally elusive. It is a reality of my job that I have simply put to the back of my mind, in a drawer labelled ‘future problem’. There is no space to consider it now. 

Last year, I was a junior in a seven-week Crown Court trial. It was incredibly fortunate that a family friend lived walking distance from the court and offered me a room, which significantly cut down on my travel time. My leader was travelling to and from London most days and battling with constant train delays. There were a whole host of legal arguments at the outset of the trial, involving near daily skeleton arguments being sent backwards and forwards. There were disclosure issues to sort out and the kind of editing to schedules that can only really be done once the trial is underway and legal issues resolved with the Judge. We would usually still be at court beyond 5pm. I was receiving e-mails from the defence junior most evenings. On some days, somebody had a childcare issue which could not be avoided and so they could not get to court until 10.30 or would have to leave as close to 4pm as possible. The Judge was understanding but everyone wanted to maximise court sitting time to get through the trial. For single parents who needed to pick children up from nursery or after-school club at a certain time every day, I expect this would be impossible. 

When lawyers hear politicians say we need to “use time in as expanded a way as possible”, it strikes fear into us. What does expanding our day actually mean? As I return to court in person post-lockdown, I have begun to say to friends again, “Sorry, I can’t tell you which evening next week we could meet, I don’t know what work will look like”. Ask any criminal barrister how many birthday drinks they’ve missed, how many plans they have cancelled last minute, even pre-paid holidays. We make sacrifices constantly in order not to let clients down when their trials are suddenly listed without warning. We give up evenings and weekends to prepare cases. We accept that this is just how it works, it is unpredictable. It is not ‘flexible’ in any way; that the government are referring to extended operating hours as ‘flexible operating hours’ is nothing short of insulting. I expect the decision has already been made in the higher echelons but we as a profession should not stand for it. I do not want to be another statistic of ‘women who have left the Bar because it is incompatible with having a family’. It is boring and disheartening but, worst of all, it is so preventable. 

Bow Street Night Courts Pilot – My Experience

There is Nothing New Under the Sun…..

I took part in the Night Courts Street Pilot when I was a Second Sixth Pupil, in the summer of 2002. I was, at the time, not someone who had any particular caring responsibilities or other difficulties. I was a 24 year old woman, with no children. For about 6 months, two Magistrates’ Courts were open on Friday and Saturday nights to deal with newly-arrested Defendants, which meant that they didn’t have to be held over to Saturday mornings or Mondays, respectively.

I went to the Bow Street pilot scheme, and I understand that Manchester also had a pilot court running.

It was a nightmare, both personally and professionally.

Those cases which were just a waste of time were the better ones. Some went wrong in ways that were significantly worse.

As a pupil, I was “on call” every other weekend and bank holiday. Other than during the pilot, that meant I could be (and almost always was) instructed to go to a Magistrates’ Court on a Saturday morning and do a “First Appearance”, which means applying for bail, taking basic instructions, receiving the initial prosecution papers, and fixing the next court hearing, usually for plea or committal (at the Mags) or first appearance at the Crown Court (if an indictable-only offence).

The pilot kicked off in July or August 2002. It meant that every other weekend, I was on-call for Bow Street Magistrates Night Court on Friday evening, A N Other Magistrates on Saturday morning, and back to Bow Street on Saturday evening. After a full week as a pupil, rushing around the country, and with a similarly-full week on the horizon, it was tiring and tough.

Several weekends I did indeed do the full monty, with 3 extra Magistrates’ hearings over the weekend.

Reasons Why Many of the Bow Street Hearings were a Waste of Time:

  1. The papers didn’t arrive when the Defendant did, because it was out-of-hours;
  2. The papers arrived and the Defendant didn’t (ditto);
  3. The Def was too drunk/high/ tired/other to be able to take part;

then there were the hearings where the Def was sober enough, present, and the papers were also there:

  1. The case needed the Youth Offending Team. “Sorry, not available, come back on Monday”;
  2. The case needed a new PNC printout. “Sorry, come back on Monday”;
  3. The case needed to hear from probation. “Monday”;
  4. The case needed a check with social services / similar. “Monday”;
  5. The case needed information on drugs / alcohol / community service / etc. “Monday”;
  6. A relevant file was in another court / police station / etc. “Monday”.

Worse Than a Waste

There were two cases of mine which went beyond “waste of everyone’s time, energy, and money” and were actually a nightmare. One involved an under-18, so there’s not much more I can say about it.

The other involved an adult Defendant, accused of three robberies. Standard steps went ahead with no more than usual Saturday night time wasting – I took instructions in the cells, filled in the legal aid forms, received the initial papers from the CPS, etc. I had arrived at Bow Street at 5.45pm for a 6pm start, the Defendant had been produced by 6.30pm, and the papers had arrived at the same time.

During the Court hearing which started about 8.30pm, the Defendant had some kind of fit. He ended up jumping the dock, sending files flying and Counsel (including me) diving to the side. The general alarm went off, the court was cleared, all hell broke loose.

The custody staff called the only doctor on duty, a standard police doctor. He arrived at 10pm, said, “he needs a psychiatrist, not a GP” and a psychiatrist was called for. There wasn’t one available. After much phoning around, one said he could arrive by 3am, which was going to be too late for the cells, as the court was closing at 2am.

The Defendant was extremely distressed. The custody staff (who were a really nice lot, at Bow Street) were very worried about him. And nobody, nothing relevant was available or on-call.

So as well as all the other difficulties about “flexible” court hours, in my experience, they just don’t work. Unless there is also massive investment in getting all the usual, necessary services on call (a girl can dream, right?)

Personal Difficulties

It was an unpleasant experience. I was over-stretched, lacking time off, and having to get home at late-o-clock (sometimes I’d finished by 9pm. At least 4 times it was after midnight by the time I was going home). No expenses, including travel expenses, are paid for Magistrates’ Court hearings, so I had the choice of walking home free, dressed in a suit and carrying a work bag, or getting a cab, which I couldn’t really afford.

I was lucky – I lived within extended walking distance of Bow Street at the time, and my then-boyfriend walked over to meet me and escort me home. And, on one occasion, to keep me company in the many hours I was at court after my own lay client had such a horrific episode, which was appalling for him (and scared the living daylights out of me).

If I’d had children, or other caring responsibilities, hadn’t lived within walking distance, hadn’t had a boyfriend who was willing and able to support me, what was then difficult would have become impossible.

Now, for example, I couldn’t do it. Then-boyfriend, now Dearly Beloved, couldn’t drop everything and come and meet me, because he’d be at home looking after our sons while I was working.

Extending Court-Hours: Is the Future Female?

For most of us, flexible working means improved work-life balance and the ability to combine caring responsibilities with work; responsibilities which, as much as we may wish otherwise, fall disproportionately on the female sex. For HMCTS, flexible working appears to mean something rather different.

Days ago HMCTS Chief Executive Susan Acland-Hood suggested that the Crown Courts’ backlog should be dealt with by extending court-operating hours. She dismissed solutions such as the reinstatement of previously cut sitting days to address a backlog which now sits at 41,599 outstanding cases. That backlog had already reached some 38,000 by the end of 2019. At that point HMCTS made no indication of an intention to pause the plan to further reduce sitting days and the size of the courts’ estate. It is fair to infer that HMCTS regard the pandemic as another opportunity to seek to introduce a scheme which has previously been met with overwhelming resistance from the legal profession. 

Acland-Hood’s only allusion to impact was barely detectable, and rather coyly expressed: “it takes people out of their accustomed ways of working, around which patterns and plans including things like childcare are built.” (our italics) In reality, it takes women, who bear primary caring responsibilities, out of their already overstretched “ways of working”. It makes no allowance for the fact that many female lawyers have to make plans of almost military efficiency to manage both professional and personal responsibilites. It is noteworthy that Acland-Hood did not acknowledge that the impact will be most acutely felt by the female side of the profession, and exponentially by those who bear sole caring responsibilities. 

Judicially-led working groups have, we are told, been set up to carefully consider what will work best in individual jurisdictions to ensure that changes implemented in a collaborative way. We are told that all key bodies representing legal professionals and others are involved in these groups and that detailed modelling has been shared.

The concept of extended or “flexible” operating hours is not a new one. HMCTS has been toying with the idea for at least 4 years, and the issue of the impact on female lawyers was raised at the earliest meetings with professional representatives. In April 2017, it published its Flexible Operating Hours Equality Statement; this was intended to be a live document and expressly stated that it would consider the sex-based equality impact of extended hours. It noted the concerns about the impact on work-life balance and diversity 

Perhaps surprisingly then, no account was taken of the impact flexible hours would have on maternity and pregnancy or on breastfeeding, an oversight which the HMCTS Judicial working groups could now reasonably be expected to correct. At the time of its writing the authors of the equality statement appeared to envisage monthly reviews and updates throughout the life of the flexible operating hours project. Possibly less surprisingly, neither reviews nor updates have materialised.

On 28 June 2019 the Evaluation Plan for Flexible Operating Hours’ Pilots was published; here sex-based “disbenefits” were identified and the potential for long term negative impact was recognised. It was also considered possible that flexible operating hours might lead to an unfair distribution of work such as Chambers allocating work to non-primary carers. In other words, working mothers may miss out on work; the female side of the profession would be disadvantaged.

It was also recognised that there could be a negative impact on professionals’ working lives which may have a longer term impact on recruitment and retention, as well as irreducible working practices such as managing preparation time and conferences out of court. Nonetheless, it was suggested that flexible hours might support a better work-life balance for those with caring responsibilities, particularly if combined with better listing practices. 

Discrimination practitioners will be alert to the obvious limitations of a hypothesis such as this, based upon an assumption that legal professionals with primary care responsibilities (statistically, predominantly female) have a partner with whom to share the load of childcare responsibilities. This assumption is one which puts single mothers in the profession at an acute disadvantage..

We pause at this point to note that listing practices have long been a source of disruption (professional and personal) and financial difficulty to practitioner. Legal professionals would be forgiven, we suggest, for viewing the promise that listing might take proper account of lawyers’ availability and commitments, particularly when those commitments are personal with some scepticism.  

The evaluation planned to interrogate how flexible hours would impact on caring arrangements and adjustments to workloads and responsibilities whilst also taking into account the cost of childcare to legal professionals. It was recognised that, in some instances, the types of impacts which flexible operating hours could have on the profession may take years to show up and that the pilots which were only to run for six months may not uncover. 

It is interesting to note that, despite the equality statement’s earlier clarity that those legal professionals most likely to be disadvantaged would be women, there is a marked disinclination throughout the evaluation to refer to this fact in unambiguous terms. Its language is oddly sexless; given the prominence of sex discrimination as a potential obstacle to the lawfulness of the scheme, the refusal to name it might be seen as a form of neuro-linguistic programming, one which is assiduously adopted by Acland-Hood in her blogpost. 

The flexible hearing pilots were concluded in May this year and we find it, yet again, surprising that no mention has been made of their evaluation. The Flexible Operating Hours report must be in train; the raw data having already been collected. In light of the justification now advanced for pursuing Flexible Operating Hours, it would be a startling oversight on the part of HMCTS to fail to update the Equality Statement to take account of the sexed impact of Covid 19. Research from the Fawcett Society and Maternity Action would be an excellent place to start.

Flexible Operating Hours could be workable, and even welcome, for those who are realistically able to reconfigure their childcare responsibilities and share the load with partners or family. But it must not work to disadvantage women who do not have such flexible personal circumstances. The retention of women in the legal profession is a matter of abiding concern. 

In terms of the rate at which the backlog of cases has grown, the public health crisis has made little significant difference. Covid-19 has not created a crisis in the justice system, although it has exposed the pre-existing crisis in those jurisdictions most heavily reliant on publicly-funded work. A ‘solution’ which was devised before the existence of the pandemic, and was designed primarily to cut costs, will do little or nothing to address the consequences of Covid-19 for the justice system, but will almost certainly exacerbate the consequences for the women upon whom it depends.