WICL Letter – DJ Brennan – Evening Courts




Dear DJ Brennan

Women in Criminal Law (WICL) has, this evening, been made aware of an announcement by HMCTS that Highbury Corner Magistrates’ Court will be sitting with extended operating hours, between 4pm-8pm, with immediate effect. This announcement, undated but communicated to solicitors’ firms today, has taken them, and us by surprise and is most unwelcome.

We may have missed any publicity relating to this new policy and are not aware of a consultation or any reasoning given for this sudden and dramatic change. We would like to express our very deep concern about the detrimental effect that this change in working hours would have on practitioners and the discriminatory impact this would have on women working in the criminal justice system.

Extended Court Hours have been considered on a number of previous occasions and has been piloted and abandoned as being unworkable at least once. Previously labelled, ‘Extended Operating Hours’, ‘Further Operating Hours’, ‘COVID Operating Hours’ and ‘Temporary Operating Hours’, we note that today’s announcement seeks to rebrand this policy as ‘Evening Courts’. Whatever the label, we are firmly opposed to any such policy.

In the light of the fact that the announcement made clear that the new operating hours would be effective from tomorrow (less than 24 hours notice), we would be grateful if we could be urgently provided with a copy of the decision with the reasons for it, any consultation on the decision and any impact assessment that has been done.

For your information, we have previously drawn to HMCTS’s attention, the negative factors such a policy will have on practitioners, most recently in response to the HMCTS ‘Consultation with Legal Professionals on Covid Operating Hours in the Crown Courts’, commencing on 27th November and closing on 10th December 2020. In particular, we have expressed our concerns about the discriminatory impact of evening courts, including in the areas of gender, race, religion and disability. We repeat those concerns now. We believe any such scheme is unworkable and discriminatory, especially in regards to advocates with caring responsibilities (which HMCTS previously accepted will be disproportionately female). At the previous consultation we presented data to HMCTS on this issue.

We endorse the previous proposal of the Criminal Bar Association Working Group on Court Capacity:

• legal advice should be taken by HMCTS on the lawfulness of the announcement (seemingly without any consultation process), and • the proposed scheme should be referred to the Equality and Human Rights Commission for assessment of the indirectly discriminatory impact on all groups with protected characteristics.

In light of the short time frame available before this policy is put into effect, we draw your immediate attention to the following important sources:

a. Women in Criminal Law Survey on Extended Operating Hours Executive Summary, dated 28 September 2020 (https://www.criminalbar.com/wp-content/uploads/2020/09/WICL-EOH-Report-Results1.pdf)

b. Report of the Criminal Bar Association Working Group on Court Capacity, dated 2 December 2020 https://www.criminalbar.com/wp-content/uploads/2020/12/2020-Report-of-the-CBA-Working-Group-on-Court-Capacity-2.12.20.pdf)

c. The Bar Council Female Retention Panel Statistics

d. The racial disparity in earnings highlighted by the BSB report ‘Income at the Bar by Gender and Ethnicity’ November 2020 (https://www.barstandardsboard.org.uk/static/1ee64764-cd34-4817-80174ca6304f1ac0/Income-at-the-Bar-by-Gender-and-Ethnicity-Final.pdf).

In light of the discriminatory impact that ‘evening courts’ will have, we invite you to suspend the commencement of such a scheme and invite you to consider the above research papers, analyse the reasons that previous schemes were abandoned and consult with practitioners.

We would also invite you to meet with a member of our Policy Team to discuss matters further, at a date and time convenient to you.

Kind regards WICL