How can we stop the disproportionate impact of EOH/COH in the Crown Court?

The EOH pilots and plans, now imaginatively retitled ‘Covid Operating Hours’, were recently expanded upon during a Q&A presentation by HMCTS on 23rd September 2020.

When I asked whether HMCTS have recognised the clear discriminatory impact of the EOH/COH model, the response was, “it would be wrong to say no and try and draw a line under it. We recognise this could have different types of impacts on different types of users, including legal professionals. It has been designed in a way by the Working Groups so there are provisions in place for the legal professionals/practitioners to be able to, in advance of a listed hearing date, to request that it be moved where it causes practical issues or issues such as where they have caring responsibilities, childcare responsibilities or it’s not practical because of long distances to travel to get to court. These provisions have been put in place and the experience in Liverpool was that they were helpful, and they worked.

… Part of the assessment is to see how well that works, we’ve been working very closely with the Bar Council in these pilots to understand the impact on individual barristers and solicitors as well. To get a real understanding of how it’s working and what impacts are. From all of that assessment will come a decision on our ability to scale this up to help us recover the caseload and get back to listing cases with shorter waiting times.”

The presentation suggests that a flexible ‘pick and mix’ approach will be available to legal professionals in the Crown Courts and that list offices will accommodate the needs of counsel. This position is incongruous with the actual experience of attempting to obtain any change to listing for counsel’s availability which, in criminal matters, has generally been at the very bottom of the list of considerations the court will take into account. That is why the voices of the 480 people who completed the recent WICL survey are so important. The theory and rhetoric simply do not fit the reality.

Professionals will have to return cases because the court did not accommodate their availability and a delay would impact their lay client. Furthermore, counsel are legitimately fearful of losing future work if they are unable to work outside normal working hours.

The overwhelming majority of respondents to the recent WICL survey oppose the introduction of EOH. The majority of those respondents express legitimate concerns about the impact on their childcare/other caring responsibilities or the impact on their work/life balance and mental health.

Who is keeping a track of or analysing the impact on these people? The mental, emotional and physical strain being put upon them? At present, it seems, no-one.

Who is counting the casualties of the EOH/COH experiment? The carers, most often women, those with disabilities or compromised disproportionately by the potential health risks such as members of the BAME community? Again, at present it seems no-one.

Who is keeping a track of the impact on professionals still being required to attend court in person for hearings where they end up travelling for hours to not even be required to say a single word? Again, this, it appears, is not being monitored. Everything including public health is being sacrificed on the altar of ‘efficiency’ and in the name of ‘clearing the backlog’.

Let us not be seduced by the false promises of HMCTS, who provide assurances of flexible listings and compromise in a system which, even at the best of times, is reluctant to afford flexibility to counsel. WICL has heard from many who fear that EOH will force them to leave their chosen profession. Indeed, an unacceptable number of survey respondents said they would either have to leave or change their work.

One WICL member emailed us explaining how poorly the pilot was working at Liverpool Crown Court in terms of efficiency and commenting that the general feeling was that more time was lost than gained. She summarised as follows:

‘Overall I’d say it was disastrous as anticipated but we hear HMCTS deemed it a great success! No doubt because it simply meant they could say that ‘x’ amount of trials were listed and started.

I feel quite cross about the whole thing from how counsel on circuit have been treated for raising objections to the clear disregard by so many members of circuit for colleagues who would really suffer if EOH became a routine way of working.’

Support us and keep fighting for the focus to be drawn back to the proper funding of and investment in the courts which is necessary to recover the caseload and get back to listing cases with shorter waiting times and doesn’t risk the fate of women, carers, the disabled and BAME community members of the profession being collateral damage. But also lobby your professional bodies, MPs and colleagues. Now is the time for us to come together and fight for the future of the profession, and there is no time to waste.

- Ravinder Saimbhi is a barrister at 33 Bedford Row specialising in criminal law.