The Coronavirus pandemic has had widespread effects across society, and nowhere is this being felt more keenly than in the justice system. The already enormous backlog of outstanding cases in the criminal courts has only been exacerbated by the Coronavirus pandemic, and now stands at almost 50,000. For reference, in the year before the pandemic, only 12,000 cases were heard. Some defendants are being bailed for three years, sometimes accused of serious offences; others are being held in custody for up to 18 months. It is a grim picture.

We have already discussed the Government’s plans for weekend courts, and criticised that they were arrived at with little to no consultation with stakeholders. It seems that the Government may have learned at least some lessons, as their latest efforts to impose what they call ‘Covid opening hours’ (COH) on the courts is being consulted upon.

Lawyers and other stakeholders however remain dissatisfied pointing to prior failed attempts to extend court opening hours, fundamental problems with extending hours when there is already a lack of funding, and equalities issues. The Criminal Bar Association has gone so far as to describe the current consultation as ‘a sham, intended to give a veneer of legal legitimacy to EOH [extended opening hours] which is currently scheduled for a national roll out in January 2021’.

Naturally, an allegation of a poor consultation piqued our attention. From the off, there may be some severe problems. The consultation is very short, running from 27^th November to 10^th December. Although shorter consultations are not unusual, and the courts have at this time accepted that shorter consultations may be acceptable given the pandemic, 13 days seems remarkably short for a consultation that could have significant consequences for the administration of justice, and potentially the imposition of lengthy prison sentences. Not only that, but given that most of the respondents would be expecting to be working above-regular hours, and that many will also have caring duties, the 13 day consultation period seems deeply deficient.

The consultation document itself was not published on the usual site that brings together all central Government consultations, instead being appended to the bottom of the original page that covered the response of the Courts Service from back in July. The page header makes no mention of it, and so far as we can tell it has been publicised more widely in only one tweet from HM Courts and Tribunal Service, retweeted once by the Ministry of Justice.

The consultation document itself is a mixture of summarised data from the COH pilots that were run in seven sites across England and Wales, a proposed approach to widening the use of COH, and five summary questions. It has to be said that the document is not a triumph of design. Rather than the usual standard word-format pdf, it is a pdf of a slide show, with all the limitations that that entails. The data provided lacks detail that may be necessary for proper responses to be given, and gives no direction to the more thorough report on the pilots. There are no mentions of cost, limited discussion of any covid safety measures, or health assessments that have been made and nothing on the wider public health risks to either the general public or other court users.

There are five questions:

1. How do you think we could improve the proposed COH model?
2. What features of the COH model work well and should be strengthened?
3. What would we need to consider in the transition and roll out of COH?
4. Are there any other user groups in the Criminal Justice System that we should consider, and why?
5. Do you agree that, should we proceed with further roll-out, the operation of COH should be reviewed in April 2021, and what do you consider are the key points the review should focus on?

Although they cover the most pertinent points, the questions neglect to ask certain key questions that we might expect, such as “Do you agree with the proposed COH model?”, something which as we saw in R (Derbyshire County Council) v Sheffield Combined Authority is an important thing in any consultation, and seem to rather proceed on the basis that COH is the only choice. Although single-option consultations have been held to be solid in the past, particularly in cases like this, there is a significant risk of predetermination arguments. The pre-determination argument is one that the Criminal Bar Association raises itself in its letter to the Acting CEO of HM Courts and Tribunal Service.

Perhaps the most notable absence in the questions is any mention of equalities, and here we find more potential problems. The PSED statement (perhaps notably not an equalities impact assessment) published alongside the consultation document acknowledged that there may be a potential for indirect sex discrimination with COH having a greater impact on those with caring responsibilities ‘if it is accepted that women are more likely, than men, to care for children and dependant adults’.  It goes on to acknowledge that there may also be religious impacts, as Islamic prayers take place from Friday afternoon, and the Jewish Sabbath starts from sunset on Friday. For a Bar which remains significantly male and white and has been taking steps to deal with equalities issues, this is a significant flaw, and has the potential to increase the already large numbers of women considering leaving practice. This fundamental problem is further exacerbated by the fact that the PSED assessment was based only on the views of 40 legal practitioners, only 13 of whom were women.

Responses to the consultation are being taken solely by e-mail, not in and of itself a fatal flaw as we saw in Article 39, however as a less targeted consultation we might hope to see at least a couple of alternative methods such as by post or telephone. It is also a little unclear who they expect to respond. The ‘next steps’ section of the consultation document includes the following paragraph:

“We would like responses coordinated through the representative bodies (Bar Council, Law Society, Criminal Bar Association) but we also propose to offer a webinar for practitioners to present the COH pilot assessment findings and proposal.”

The implication of this paragraph would seem to be that they consider primary respondents to be the representative bodies. The webinar they discuss seems only to have been announced on twitter on 1^st December, with a deadline of 10AM on 4^th December for any questions. A short timescale, with limited reach is unlikely to be seen as fair in any circumstances.

In all then, the consultation seems to be severely wanting, at almost every stage. We should remember perhaps at this point that in multiple cases, it has been stated by the courts that consultation should be as far as is possible, a self-correcting process. In light of the heavy criticism from across the legal sector of this consultation, we might be about to see an interesting point raised which we have yet to see be discussed. How can the consultation process be legitimately self-correcting, when it is so short? It seems unlikely that ministers will pause the consultation process to take further views and correct it.

The Criminal Bar Association has made it clear that they will call for further action if the scheme goes ahead, and other representative bodies have indicated their support. The Government response to this consultation in light of the strength of feeling against the measures looks sure to be interesting, and we wouldn’t be at all surprised to see further action, and potentially even court challenges if they attempt to impose the new scheme.