Law Reform, Practice and Procedure

Our Response to “Flexible Courts”-unworkable and undesirable

PUBLISHED December 8, 2017

The LCCSA has responded to HM Courts & Tribunal Service (HMCTS) prospectus seeking views on its flexible operating hours pilots.
We LCCSA have considered the FOHP prospectus, and are generally against the idea in as much as it relates to criminal work. We note that the Law Society has responded in detail to the proposals and we incorporate their concerns where they relate to criminal work.
The scheme at Blackfriars may, with sufficient engagement with our profession ultimately be palatable, as the proposed hours are more moderate. Our members are, in principle, in favour of efficient working and playing our part in protecting the public purse and improving use of state resources. Yet the proposals (in particular relating to Highbury Corner Magistrates’ Court) are:
1) Unworkable; and
2) Undesirable.
The majority of our members are solicitors employed with contracts of employment setting out normal working hours of around 9am-5pm. Solicitors firms work broadly the same hours as the courts, and there simply isn’t be ability to easily change solicitors’ working patterns so that they can attend trials up until 20:30 in the evening. For example, I supervise a team who start work at 8.30am. It is not feasible for me to work a shift of say midday to 8.30pm. Who will man our office in the morning? Who will call the cells, request overnight papers, find cover, instruct an agent or counsel, apply for legal aid (and this is all before 9am!).
More than that, we do not believe that criminal defence solicitors will be willing to work from 5.30-8.30pm. We simply do not think that there will be sufficient solicitors willing to provide representation and for this reason alone, the proposal is not workable.
As far as we are aware, there is no proposal for the legal aid fees to be remunerated at an enhanced rate sufficient to cover overtime costs which would be necessary to find cover for these anti-social hour hearings. For this proposal to work, some thought must be given to financial incentivisation to those solicitors willing to work in the evening,
At your para 4.13, you suggest that by mixing jurisdictions of Magistrates’ and Crown Courts back-to-back, no special measures will be needed to ensure that any individual is not required in both sessions. This seems wrong – many advocates (both solicitors and barristers) regularly appear in both courts. My own practice is about 50:50.

In these long months, it starts getting dark at around 4pm. By 5, it is pitch black. It is wholly inappropriate for a defendant to give evidence, 3 hours after that, when people are getting sleepy and thinking about winding down. We have all had the experience of a judge dozing off on the bench in the day-time, and this is likely to be embarrassingly common if trials are to take place until 8.30pm. Although there is some change, magistrates have historically tended to be of advancing years which exacerbates the issue.
There has been increasing emphasis in recent years on work-life balance and this includes working hours. We want to be working when our children are at school, and during daylight hours. If we wanted to be shift workers, we would have chosen different professions. There is a feeling amongst criminal defence lawyers that we have to put up with being poorly paid, with consistent reductions in fees in real terms, with having to wake up in the night anyway to do enough police station slots to satisfy our compliance regime. As the Law Society hinted at in their response, the success of this scheme depends on goodwill amongst the various actors, and, frankly, our members do not currently have a sense of generosity towards new, unfunded, government schemes that negatively affect our enjoyment of life. Our members are all too aware that the defence community was not invited to engage when these proposals were developed at Highbury Corner and we feel like it is being thrust upon us.
Surely there are more important macroeconomic matters at play at the moment in the economy? Will squeezing a few more hours out of the crumbling Highbury Corner Magistrates’ Court make a difference in the scheme of things? We would suggest not.