Court hours pilot a postcode lottery for solicitors
Practitioners expected to attend court during unsocial hours for no uplift in pay
Solicitors operating in areas assigned to a pilot scheme that will extend court opening hours will be victims of a postcode lottery, the Law Society said as it warned that the government's 'fundamentally flawed' plans would heap more pressure on fragile criminal legal aid firms.
The extended operating hours pilots were due to start in May but have since been postponed due to the snap general election. Despite the limits of the pre-election period, HM Courts & Tribunals Service has proposed running pilots at six different courts across the country over a six-month period.
HMCTS is to establish 'local implementation groups' to explore the feasibility of extending sitting hours. These groups at Newcastle and Blackfriars crown courts, Sheffield and Highbury Corner magistrates' courts, Brentford County Court, and Manchester Civil Justice Centre will test different operating hours models, with some courts starting hearings at 8.00am and finishing at 8.30pm.
The Law Society said the scheme is dependent on access to support staff and firms' employees, none of whom are likely to extend their working day without appropriate pay.
The goodwill and morale of the criminal defence community has also been severely diminished following 2014's 8.75 per cent fee cut and with the threat of further cuts hanging over their heads.
Last week three silks took aim at the pilot scheme, referring to it as a 'troubling' Ministry of Justice 'gimmick'. Garden Court North's Mark George QC suggested criminal defence lawyers were not prepared to co-operate with the scheme which would 'seem to be the death knell for this idea'.
'Fees for criminal legal aid work have not increased for more than 20 years '“ indeed they have been cut '“ and criminal legal aid practices already operate at little or no profit,' said the Law Society president, Robert Bourns. 'Under this new government plan solicitors would be expected to attend court during unsocial hours for no uplift in pay.
'Solicitors operating in the proposed pilot areas will be victims of a postcode lottery, incurring additional cost because of the bad luck of being in one of the areas selected for the pilot,' added Bourns. 'It is not acceptable to operate a pilot without paying solicitors properly for the additional cost they will incur as a result.'
The MoJ tested the introduction of more flexible court sittings after the August 2011 riots and as recently as 2013 in the criminal courts, with 42 magistrates' courts participating.
Work-life balance concerns raised in this previous exercise have not been addressed, nor has the impact on practitioners generally, such as those with responsibilities for care, said Chancery Lane.
According to an independent evaluator, half of sittings during the 2013 trial were abandoned and weekend staff shortages lead to adjournments, with knock-on delays as cases were relisted.
'We remain unconvinced that the scope or evaluation of the pilot will be more robust than its predecessors,' commented Bourns. 'The cost/benefit findings of a pilot which has operated, short term, on goodwill will be impossible to extrapolate on a national level.
'If this scheme is rolled out nationally without any additional remuneration, in our view a new tender process would be required, as these significantly extended hours were not on the table for this current contract.
'Unless these fundamental issues in execution, resource, and methodology are fully resolved then the pilot will be unsuccessful and any findings that come out of the evaluation will not command the trust or confidence of our members and their clients, the public, or court users.'
Chancery Lane has raised these issues at the implementation groups, as well as with senior HMCTS and Legal Aid Agency officials. According to the society, HMCTS has accepted it needs to engage further with the defence community on the design of the pilot as well as the evaluation.
John van der Luit-Drummond is deputy editor of Solicitors Journal