Professional court users' access scheme update
On Monday 19 August, HM Courts and Tribunals Service (HMCTS) announced it would be rolling out a new, adapted security search for members of the professional users’ access scheme.
HM Courts and Tribunals Service (HMCTS) has been piloting extended operating hours both as part of the court recovery plans in response to the coronavirus (COVID-19) pandemic, and as part of the court reform programme.
This page covers:
- temporary operating hours
- previous pilots and evaluation (including COVID and flexible operating hours)
- our view
- what we're doing
- resources
Temporary operating hours
In July 2021, the Ministry of Justice announced that resident judges would have the option to open courtrooms for longer under new ‘temporary operating arrangements’.
They proposed two models that would run alongside normal operating hours in the other courtrooms:
- blended
- remote
These measures are temporary and timebound. They’ll come to an end six months after any court chooses to bring them in, and HMCTS will monitor their impact.
The local judiciary can decide which of the two models to use. There should be careful discussion and consideration with local court users, including legal practitioners.
Blended model
The blended model involves running two separate jury trials in one courtroom:
- one trial from 9am to 1pm
- another trial from 2pm to 6pm
This is an extension of the COVID operating hours (COH) trialled in 2020.
Remote model
The remote model is for sessions:
- that are held entirely remotely
- where the hearing takes place outside of the standard 9am to 5pm operating hours
- consisting of non-trial work, such as pre-trial preparation hearings (PTPHs), mentions and sentencing
Past pilots and evaluation
In 2020, HMCTS piloted COVID operating hours (COH) in seven Crown Court centres as part of its criminal recovery plan to address the growing court backlogs.
HMCTS held a rapid consultation to determine whether it should extend the COH model to more courts from January 2021.
Download our consultation response
In July 2021, HMCTS decided to temporarily extend the model (now known as the blended model under temporary operating hours).
The flexible operating hours (FOH) pilot ran from September 2019 to March 2020, in two civil and family courts in Manchester and Brentford.
The pilot tested:
- if civil and family court buildings can be used more effectively
- the benefits of letting people attend court outside normal sitting hours (from 10am to 4pm)
- how more flexibility impacts legal professionals (solicitors, barristers, court staff and judges)
Throughout the FOH pilot, we sat on the Evaluation Advisory Group panel and offered expertise and guidance to the evaluators.
The independent evaluator (IFF Research and Frontier Economics) analysed the data gathered throughout the pilots to measure the project’s success.
The final evaluation report was published in July 2021. It was originally scheduled to for January 2021 however this was delayed due to the impact of COVID-19.
The factors they looked at included:
- public users’ experience
- efficiency of courtroom use
- speed of and access to justice
- the experience of legal professionals attending an FOH hearing
- the financial impact on individual solicitors, local authorities and legal support organisations
The evaluation found no “strongly positive or negative impacts” across any measures.
The report suggests that if FOH are pursued more widely in the future, participation might need to continue to be “a matter of choice” for legal professionals and some members of the public.
Members of the public include those with childcare responsibilities, who are financially vulnerable or who do not live near the court.
Evaluation plan for flexible operating hours pilots (PDF 730 KB)
Our view on extended court hours
During the pandemic and recovery
Our primary concern throughout the pandemic has been to ensure that justice continues to be delivered and that all users are safe.
During temporary operating hours, we remain concerned that extended hours will have a disproportionate impact on advocates with caring responsibilities.
Additionally, we are not sure:
- how practical it'll be to bring in such measures, given the demands this will place on court staff, judicial time and lawyers
- to what extent any extended sessions will increase capacity in practice
After years of underfunding and cuts, there was already a significant backlog in the criminal courts which has been exacerbated by the pandemic.
We understand, therefore, the need to reduce the pressures on courts and tribunals, particularly given the unprecedented challenges presented by the pandemic.
While we share the objective of seeking to reduce the backlog in the court system, we remain to be convinced that COVID operating hours (COH) deliver any significant additional capacity.
Although more cases were disposed of during COH, this appears to have been largely due to the fact that shorter, less complex cases were allocated for these times, which means that more cases could be allocated, and therefore a greater number of those cases cracked.
It’s our view that the vast majority of benefits observed in the pilots would equally have been delivered had the same mix of cases been allocated to courts operating normal court hours.
Read our consultation response on extending COH
In general
In normal circumstances, we’re concerned that extending working hours in courts could have a negative impact on solicitors and other court users, including:
- those with children or caring responsibilities
- those with disabilities
- vulnerable people
- some religious groups
- legal aid practitioners
- junior lawyers
- business owners (as later hours may mean extra costs, such as overtime pay for staff)
We’ve asked HMCTS for more details on:
- whether solicitors with childcare or religious commitments would be exempt from extended hours
- how solicitors’ working hours will be protected (and how they tell the court if they’re scheduled to attend cases in early morning and late evening slots on the same day)
We’ve fed back to HMCTS about specific concerns such as:
- pressure on legal aid workers
- that clients on low incomes may struggle to afford public transport at peak times (and so miss their hearings)
- how the system will consider court users’ preferences when scheduling sessions – without doing this, courts could be breaching anti-discrimination legislation
- that court users may be at higher risk of intimidation at night
Our recommendations
Our view is that HMCTS must carefully consider the impact of COVID-19 on our justice system and ensure that any future operating hours proposals work for all court uses – legal professionals and clients alike.
We’ve suggested that other approaches might better meet the objective of clearing the backlog:
- make proper and full use of existing judges and courts, added to by part-time judges and court space
- the Ministry of Justice must ensure it’s making maximum use of normal court hours, with no restrictions on judges sitting while there are courtrooms (real, virtual or Nightingale) available where they could be working
- using unused public buildings – including buildings which have been closed but have remained unsold – as Nightingale courts
We believe solutions such as first rolling out digital scheduling in all courts could make predictions for hearing lengths more accurate.
What's happening
- July 2021 – lord chancellor takes the decision to endorse temporary operating arrangements – on a short-term, timebound basis
- July 2021 – HMCTS publishes its evaluation report for the FOH pilot
- January 2021 – we give evidence to the Justice Select Committee’s session on the future of legal aid and court capacity
- December 2020 – we warn that COH are not the answer to the criminal courts backlog
- November 2020 – COH pilots finish and HMCTS issues rapid consultation
- August 2020 – COH pilots begin in Crown Court centres – we issue guidance for litigators and solicitor advocates
- March 2020 – FOH pilots in civil and family courts finish
- September 2019 – pilot begins in Manchester and Brentford
- July 2019 – the government publishes a framework for evaluating the pilot
- May 2019 – we give evidence to the Justice Select Committee as part of its inquiry into how the court reform programme affects access to justice
- November 2018 – following our extensive lobbying, the government announces that the pilot in criminal courts will not go ahead. It also acts on our suggestion to compensate legal aid solicitors for taking part in the pilot
- December 2017 – we respond to HMCTS’s proposals, pointing out the strain on the criminal justice system
- October 2017 – the government sets out its proposals for an FOH pilot
- September 2017 – the government delays the pilot to February 2018
- August 2017 – after we raise issues with LITs, and senior officials from HMCTS and the Legal Aid Agency, the government agrees it needs to engage more with criminal defence solicitors before starting the pilot
- May 2017 – FOH pilot is pushed back due to snap election