A nervous disposition
In March this year the Ministry of Justice announced the Flexible Operating Hours (FOH) pilot. Following a delay to the implementation of the FOH pilot the MoJ has published a “prospectus” which gives some indication of the issues under consideration since the pilot was announced earlier this year (available here).
The FOH Pilot
The FOH pilot is an initiative that will look at the effect of changing court sitting times from the traditional 10:00 to 16:00. As part of a £1bn investment in the court system the MoJ proposes an extended court day, starting at 08:00 and finishing at 20:30 (or variations between these times), from February-August 2018 at the following courts (operational capacity in brackets):
A court’s capacity is based on 248 sitting days per year and a court sitting for five hours per day. The MoJ’s prospectus states the two main reasons for the FOH pilot is to see if there is the potential to improve access to justice and use the court estate more effectively.
Concerns about the effect extended sitting times will have on practitioners, witnesses and complainants have been well voiced. This blog will highlight areas of concern regarding the impact FOH may have on those who have the most at stake in a criminal case, defendants.
Impact on defendants
i.Access to justice
The FOH pilot was delayed on the basis that the MoJ needed more time to “listen and engage” in order to take forward court reform. The MoJ committed to “engage and discuss” the pilots to ensure that there was a robust, independent evaluation system in place. According to the prospectus, the transformation of the courts system is based on the three core principles; that is that such transformation must be just; proportionate and accessible.
As is often the case with changes to the criminal justice system the needs and rights of the defendant appear to have been overlooked. The October 2017 prospectus refers to attending court as a citizen, giving the examples of such citizens as ‘juror, victim, witness, claimant etc.’ There is no mention of the defendant. It is difficult to envisage how the justice system can be just, proportionate and accessible if the rights of an integral party are not given due consideration.
When the MoJ piloted the use of virtual courts in May 2009, the report published on this pilot (available here) highlighted some concerning outcomes for defendants. For example, the proportion of defendants who were represented during that pilot was 54%, a significant drop from the normal 72%. Additionally, there were a higher proportion of unrepresented defendants pleading guilty and they were also more likely to be sentenced at their first hearing.
With professionals voicing their concerns about staffing levels and the financial viability of FOH, it is highly likely that more defendants will be unrepresented. This is particularly concerning as most, if not all, defendants will not have a lawyer’s understanding of the law. They may plead guilty without understanding that they have a defence. When it comes to sentencing, a person may not be in a position to put forward full mitigation or understand that they could provide character statements or even that there may be underlying issues which need to be addressed and that a report is therefore required. A defendant, guilty or not, does not have proper and fair access to justice if they are not able to put forward their best case.
In order to assess whether there is any merit in the FOH pilot Lord Justice Fulford, the Judge in Charge of Reform, mentions that a “robust and independent evaluation is essential” and that an Invitation to Tender has been developed. Whilst providing examples of the areas which will be investigated, it is unclear whether an assessment of the justice outcomes of the hearings during the FOH will be made. Better access to justice should be for all parties in the criminal justice system. Above all, defendants should not be put at a disadvantage so others receive a small benefit.
This is not the first time the MoJ has piloted FOH. Forty-two Magistrates’ Courts piloted extended sittings in 2012 and an independent evaluation suggested that there may have been some benefits to defendants as they spent less time in police custody and did not have to take time off work to attend court. However, these benefits were mainly in relation to those courts sitting on Saturdays and Sundays. This is not being trialled in the current FOH pilot. Secondly, the 2012 pilot was only tested in Magistrates’ Courts. Hearings in the Crown Court, especially trials, take much longer. Whilst witnesses could benefit from being able to attend court outside working hours, it is unlikely that defendants will see the same benefits; they will be required to attend lengthy proceedings throughout.
The operational capacity figures outlined above (obtained by the Law Society Gazette, see here) show that half of the courts chosen for the FOH pilot are currently operating at around 50% of their capacity. These figures do not mean that court rooms are sitting empty due to a lack of cases. On the contrary, court centres across the country are struggling to fit in fixed and warned list trials. Trials that are listed often crack (i.e. where the defendant pleads guilty or the prosecution offer no evidence) or are ineffective, more often than not due to disclosure issues with the prosecution. This results in courts sitting empty because cases have not been given proper attention. Flexible operating hours will not resolve these issues.
Will FOH lead to shorter trials? Not necessarily: His Honour Judge Hillen, the Resident Judge at Blackfriars Crown Court, has stated that the FOH pilot at Blackfriars could lead to a 28% increase in trial length. This figure is an estimate and only relates to one court centre. However, such an increase in the length of a trial would be a concern if the aim is to lead to a more efficient use of court time or an improvement to access to justice. The MoJ must not fall into the trap of conflating efficiency with utilisation. Increasing the length of trials is not an efficient use of precious court time. Such an increase would only add to the burden on already stretched courts to list their trials. For a defendant, who may have been on police bail for years before being charged, this will only serve to prolong what is a very stressful and inevitably life changing experience.
It is clear that courtrooms need to be used more effectively and that improvements must be made. However, flexible operating hours has the potential to create more problems than it solves. Perhaps one way to make both better use of court time and improve access to justice for complainants and defendants would be to invest money in the CPS so that all cases can be given proper consideration. This would result in fewer ineffective trials and also enable the defence to properly advise their client on all relevant material prior to trial.
Lord Justice Fulford stated, “we must use our assets to the greatest (but sensible) extent.” The fact that the MoJ is keeping an open mind on what parts, if any, of the FOH pilot will be implemented is to be welcomed. However, defendants, both those who plead guilty and those who do not, need their case to be dealt with as efficiently as possible. Anything that has the potential to infringe a defendant’s right to a fair trial or result in miscarriages of justice is, undoubtedly, not a sensible use of our assets.
Blog by Carl Wheeler, Paralegal in the Criminal team.
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