Extended Operating Hours In The Magistrates Court By The Back Door?

It’s been another long day at a Magistrates’ Court in London, which is becoming the norm rather than the exception.

Today, I finished a Court duty at a little after 6pm, which is not late by current standards. Then it’s back home to begin the rest of the day’s work: conferences, case work, telephone calls, meaning I will work late into the evening. The rest of my work does not stop when I am at Court and the fact that Courts sit later and later means that working days are extending immeasurably. Of course, this is on top of “ordinary” out of hours work, taking police station calls throughout the night etc.

WICL’s EOH survey demonstrates that the legal community are overwhelmingly opposed to the imposition of extended operating hours. In the case of the Magistrates’ Courts, there is already a worrying trend of lawyers, often solicitors and junior barristers, being required to stay later at Court, over 53% of our survey respondents had to stay later than usual, with staying as late as 7pm being common and some respondents having to stay as late as 9pm.

This is having a demonstrable impact on lawyers’ family lives and mental health. You need only take a cursory walk around the Magistrates’ Courts to find lawyers who are exhausted and, in some cases, simply overwhelmed by the current situation. We at WICL recently received a heart-breaking email from an experienced and talented female solicitor who told us that “my personal situation is so dire that I’m contemplating a move out of criminal law – I’m sure I’m not alone”.

I am aware of solicitors who are reluctant to return from furlough due to concerns that they will be unable to meet childcare responsibilities. On that very point, I have seen lawyers, often young women, ask for their cases to be called on so that they can collect children, only to be met with an air of nonchalance.

The current culture seems to be that the backlog needs to be cleared, at whatever cost. We are not against clearing the backlog; justice needs to be served, but legal aid solicitors and junior barristers are a precious resource whose health and long-term future in the profession should be valued. It would be far better to properly fund the courts to sit during normal hours than to break the people who are needed in the long term to run the courts and if we lose the diversity currently in the system it will take at least a decade to regain.

There are wider issues. Solicitors’ firms are operating under more financial pressure than ever and extending sitting hours will raise issues about solicitors’ employment contracts and payment of overtime. Still more firms are likely to be casualties of the pandemic.

All of this is before any formal program of extended Magistrates’ Courts sitting hours. We understand that there are a planned additional 90 weekend and evening slots (6-8pm), as well as extra Courts over the Christmas period. How much more can the legal profession and our lawyers take?

WICL are always keen to support you and welcome any specific concerns and examples of issues arising from de facto extended operating in the Magistrates’ Courts. Please contact us at womenincrimlawpolicy@gmail.com.

- Lisa Towell is a solicitor at Blackfords LLP, specialising in criminal law.

On the basis of sex?

- Perveen Hill

A few weeks ago, at a time when the global Covid-19 pandemic dominated every article, report and post, I noticed something that stood out; a junior barrister had tweeted about her dis-instruction based solely on her sex. Having been instructed by solicitors, she was dropped from five cases for a client, despite having never met him, as he did not want to be represented by a woman.

This prompted me to discuss the subject with my fellow Women in Criminal Law committee members and pose the question; is there any gender bias attributable to the instruction of barristers and other legal representatives? Furthermore, we asked why some in the profession followed these instructions to fuel such inequality and whether we were doing enough to stop it.

It is clear that no reputable firm or chambers should endorse or allow the allocation of cases based on sex. Aside from the obvious moral and ethical issues, it is unlawful for anyone (including solicitors, clerks or clients) to instruct legal representatives (or not) on the basis of any protected characteristic, including sex. It is of note that most corporate and commercial law firms, including mine, now provide regular training to staff and leaders on unconscious bias, recognising that it remains a big issue within the profession.

During my early career I was allocated, on merit, a complex, profitable case. I was thrilled to receive work of this nature and grateful for my firm’s faith in my ability. However, much like the tweeter’s experience, prior to meeting my client I was informed by the office manager that he did not want a woman to represent him. At this point, I was preparing to hand the case over to a male colleague. My supervisor took a different view.

I was introduced to the client and given a ringing endorsement. The client subsequently instructed me, and my sex was never raised by him as an issue again. Interestingly, my client confessed at a later stage that he felt a woman wouldn’t fight as hard for him as a man. If I were more cynical, I might consider that my supervisor’s sex influenced my client’s decision, since they perhaps trusted his recommendation, but I won’t dwell on that. I was fortunate to have a supervisor who supported and valued me at an early stage in my career, but doesn’t everyone deserve the same? It is clear from anecdotes on social media and private conversations I have had with female colleagues that they have not shared the same experiences and continue to face sexual discrimination.

So why does sex still influence the decision-making process when instructing a legal representative? The obvious answer is that we want to keep clients happy. Where a client requests a barrister or particular solicitor they should be given their preferred choice. It is commercially sensible for firms to ensure clients are content with their representation, particularly in a lucrative case where there is a pool of competitors. It is also often much easier to concede to a client’s request based on sex than to challenge it and face a difficult conversation that could easily be avoided.

As a profession, we pride ourselves on upholding integrity and promoting the rule of law. We must be prepared to challenge incidents of sexism whenever and wherever we come across them. If we select representatives on the basis of sex, we directly contribute to sexual discrimination and gender bias. Firms must offer training to staff so they understand the effects of gender bias, to avoid this behaviour and help to create a level playing field.

This has been a turbulent time for all in our profession, perhaps no more so than for junior practitioners who have felt most keenly the financial consequences of Covid-19. More than ever, they require our support. No practitioner should be dis-instructed, resulting in financial loss as well as a loss of access to experience, because they are a woman. We must ensure that sex no longer influences instructions and that a meritocratic selection process prevails.

Perveen Hill is a senior associate at BDB Pitmans, specialising in regulatory matters, white collar crime and investigations.

The Problems With Extended Hours

The current shadow of ‘extended hours’ looming over the profession is a clear and (on reading Susan Acland-Hood, CEO of HMCTS’s blog of 9th July 2020) seemingly inevitable measure which the crown courts intend to utilise alongside new/Blackstone courts to deal with the backlogs in the justice system in the current public health crisis. Let’s be clear, these backlogs are not caused by the pandemic. In fact, the backlogs were there already as a result of ongoing under-investment and neglect of the criminal justice system, wholesale, for years. Of course, that is a whole other blog post, for another day.

Today, I want to talk about what ‘extended hours’ will really mean for those of us at the coal face. I have been a solicitor as well as a barrister. I know the exhaustion of being duty solicitor overnight, wiped out by constant interruptions by phone calls from police stations through the night, even on nights when an actual attendance wasn’t needed. (I still ponder the rationale behind the phone calls to inform you that your client would like to speak to you but can’t be brought to the phone because they’re too drunk/violent etc.) I digress. The point is that solicitors can often end up working all day in court, in the office all evening catching up on the work not done all day and then be actively working again overnight on duties.

We at the Bar, as I now am, have similar issues. All day in court. Conferences at the end of the day. The drafting of arguments, skeletons, applications, all to be ready to see our clients at 9.30 and be expected to hit the ground running at 10am in court. For the most part, we are only paid for the court part. The reality though is that all the other work, the unpaid part, has to be done. And that inevitably happens during our evenings, late at night after the children are in bed and worse still, often, over the weekend.

The point is the same and the impact felt whichever side of the profession you are on. We work long stressful hours, motivated by our commitment to our clients, to our cases and to our professional integrity to do the best we can at all times. We regularly run on fumes.

Now, add in the extra dimension of family life. Before you say it, yes, I know there are many men who play their part in helping with childcare and homelife. But the fact is, even in 2020, many more women still carry the lion’s share on a day to day basis. Various studies have concluded that throughout lockdown, it has been women shouldering much of the burden of home schooling and additional childcare responsibilities, meaning that for many, capacity is now more stretched than it has ever been. Not forgetting the burden on lone parents and members of the professions who have other caring responsibilities.

We are all waiting to hear what this ‘extended hours’ proposal is actually going to look like. Well, here’s a thing to note for our professional organisations, the senior members of the judiciary, the HMCTS staff involved in formulating it. There is no magic childcare/other carer tree. No one (except us, it seems) is going to commit to constant uncertainty in their working hours and unsocial hours (for no extra pay, just for good measure) to mind our children while we roll up our sleeves to help clear the backlogs.

The reality is that women, in the main, are going to be the ones facing the invidious choice between working or not. Women are already disproportionately affected by these competing demands, and will be even harder by the addition of ‘extended hours’.

A comparison of the position of criminal barristers to that of ‘other professions managing flexible working’, is at best a failure to appreciate the realities of the way our practices operate. At worst, it’s disingenuous. Our diaries are unpredictable. Cases are prepped and then pulled by the court for reasons unclear. Hearings are listed at extremely short notice and short shrift given to reasons why the advocate may need an alternative listing. When a trial comes in, we will have to choose to cover it, no matter what the cost to our family life or wellbeing, or return it and write off the (unpaid) lost hours of our lives on prep. There are no fixed hours. There are no fixed days. There is no fixed pay. Our daily working lives are a heady mix of variables which already make planning for the rest of our lives a mind-boggling challenge. Further uncertainty will risk many slipping towards professional and personal burn out.

This policy will inevitably be discriminatory for women if the realities of their work/life balance are not considered. So, on behalf of WICL, on behalf of all women in the profession, we urge HMCTS to consult meaningfully on the way forward. Take ideas and suggestions on board. Recognise the discriminatory impact of what extended hours will actually mean and find another way. We all want the same thing. Let’s find a better way to achieve it.

- Ravinder Saimbhi is a barrister at 33 Bedford Row.