UK criminal bar battles COVID-19-driven extension of court hours with Mishcon’s aid

The bar expressed concern that the pandemic would become an excuse to impose “unworkable and discriminatory” reforms

UK criminal bar battles COVID-19-driven extension of court hours with Mishcon’s aid

Mishcon de Reya (Mishcon) is helping the Criminal Bar Association of England and Wales (CBA) to battle the proposed extension of operating hours in more courts due to the COVID-19 pandemic.

The Law Society Gazette reported that Her Majesty’s Courts & Tribunals Service (HMCTS) had been pilot-testing extended hours in seven Crown court centres in line with a COVID-19 recovery plan. Under the HMCTS proposal, two lists would operate in a single trial courtroom through morning and afternoon sessions from Mondays to Fridays.

“No one individual would be expected to participate in both the morning and afternoon sessions,” the HMCTS said. “Alongside this, at least one standard hours trial courtroom will operate. This will ensure that, if for any reason a case is unsuitable for the earlier or later session court, subject to the decision of the resident judge, it can still be listed in the usual way in a standard hours trial courtroom.”

A short consultation on the proposal was concluded on 10 December.

The bar pushed back against the extended hours model, and said that the UK government had violated the Equality Act 2010. At the start of the month, CBA chair James Mulholland QC said that the HMCTS’ consultation granted “insufficient time for proper representations to be made.”

Thus, the HMCTS had “failed to conduct a proper assessment in accordance with their legal requirements” as per the act.

“The CBA is deeply concerned that HMCTS is using the COVID-19 pandemic as an excuse to drive through, without meaningful consultation, reforms to court operating hours that have previously been shown to be unworkable and discriminatory,” Mishcon wrote in a letter addressed to the Equality and Human Rights Commission.

Mishcon’s letter called for the commission to “assess the extent to which or the manner in which HMCTS has complied with its public sector equality duties.” The firm also addressed a letter to Kevin Sadler, HMCTS’ acting chief executive, saying that it would be “premature and potentially unlawful” for the extension model to be implemented as proposed given the concerns voiced by the CBA.

The letter to Sadler also called for the suspension of the recently closed consultation.

“We have been very clear that no one would be expected to work longer as a result of these proposed temporary changes. We are carefully considering the responses to the consultation and no final decisions have been made,” a Ministry of Justice spokesperson told the Gazette.

The HMCTS is looking to expand the rollout of the extended hours model on a trial basis beginning January 2021, with a formal review to be conducted in April 2021 on the need to continue applying the model.

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