Fulford LJ is the Judge in Charge of Reform. This is a noble aim. The Justice System should reform. We should look at ways whereby modern technology is utilised effectively (effectively being the operative word). We should strive to make sure that the Justice System remains fit for its stated purpose (this is not the same as being popular).
I certainly have the greatest of respect for Fulford LJ, the office he holds and even his special responsibility of reform. But this is not what we need right now. What we need is a Judge in Charge of Getting the Basics Right.
This is not a sexy job title. This is not something which looks good on the CV when going for one of the big jobs. But it is needed in the Criminal Courts. And it is needed before we even begin with the ambition of reform. There is no point attempting to augment something which does not work in the first place. Even Chris Hoy would struggle on a titanium framed penny farthing.
Let’s examine the Flexible Operating Hours pilot which Lord Justice Fulford has recently defended and the reality of every day life in the criminal courts. The FOH pilot has the stated aim of utilising the court estate with greater efficiency and operating at times which is more convenient for court users.
Let us look at the reality. The reality is that a trial scheduled to start at 10am today did not get underway until 2.15 because the defendant was not produced from custody. This was because the van set off from the prison housing the defendant at just before 10am, a prison which is over two hours away from Court. This was not because something went wrong. This was not because it was only realised that the defendant was required at the last moment. This is because this is the way it is. This is the accepted reality of life in the courts. Whilst I cannot say it happens every single day (although I would not be surprised to find out it does) it happens with such frequency that every court user will recognise the scenario I have described.
A courtroom sat empty whilst we awaited the van. A witness who could reasonably have expected their evidence to be concluded today was sent away until tomorrow.
Now I can predict with certainty that barely a single prisoner will be delivered to court in time for an 830 am start or even a 930 start. Those prisoners who are in the afternoon shift will not get a lie in (you can bet that only one van will drop off so the defendant required for an afternoon hearing will come with the morning lot) and experience shows they will be lucky to get a Pot Noodle on their return in the evening. Imagine that in a trial. Day after day of early starts, hours in cramped court cells, a curled sandwich at lunchtime and no hot meal all week. If this is reform then it is only in the sense of the word used when Pink Floyd reform. We are not putting the band back together, we are putting the workhouses and the squalor of Victorian gaols back together.
For late defendants you can substitute inadequate interpretation provision, poorly prepared lawyers, courtrooms sitting empty because there is no budget for judges (yes, really) and videolink technology that has all the reliability of an Austin Allegro built on a Friday afternoon. The Criminal Justice System is beset with difficulties. Solving these have to be the priority, not opening all hours.
We are told that, should the Pilots be a success, the greater efficiencies will allow money to be spent on the rest of the system. We all know that “greater efficiencies” means closing court buildings. And that has huge consequences which are only amplified by FOH.
Again, an example based on the reality of attending court. It is proposed that Newcastle will operate from 930am. This will require lawyers being there before then to conduct their discussion with their opponents and confer with their clients (if they are lucky enough to be on bail and therefore have a prospect of being there themselves on time). The earliest you can get to Newcastle from Birmingham by train is 9.27. From Liverpool it is 9.14. From Manchester you can get there with an hour before court. If you leave on the train at 5.47. And from London the earliest you can get there is 9.40am (or you could drive and leave the house at about 3.30 am).
This means that those lawyers with a hearing in the 930 court will either have to appear by videolink (not always practical, desirable or even achievable) or will have to stay the night before. The stay the night before will be at the advocate’s own expense (it is relatively uncommon to receive travel expenses and when you do they only cover the trial, not ancillary hearings like the sentence) and that expense may well come out of a fee which is £45. Or even £0. A more efficient use of the Court Estate may require the judicial car park at Newcastle to accommodate a caravan or two. Or maybe a yurt. Perhaps the dormant canteens can be reformed into dormitories.
So this demonstrates a fundamental problem with the FOH that you don’t need a pilot, or even a train driver, to spot. They instantly throw a time and financial burden on the lawyers. And yet this only highlights a growing problem with the accessibility of courts. As the local court closes it will be the witness, the plaintiff, the victim and the innocent that cannot get to their nearest court by public transport. So the greater efficiencies strived for within the pilot turns the Justice System into a more remote silo of justice physically removed from the community it works to keep safe.
These FOH pilots cost a small fortune. The CPS have to pay their staff more. Consultants will make a small fortune evaluating the results. Civil servants will devote time and energy writing blogs and implementation strategies. Right Honourable Lord Justices (or Lords Justice) will have to devote judicial time to writing letters to the ill-informed.
Yet it is the ill-informed that could tell them all they need to know. It is the ill-informed who know the defendants will not be produced in time. It is the ill-informed who can look at a train timetable and realise they cannot get to court on time. It is the ill-informed who know that they will have cases that appear in both shifts in any given day and will be at court from 8 til 7. It is the ill-informed that know that those with childcare responsibilities will have their careers turned upside down by the unpredictability of our work being stretched over two or three shifts from dawn til dusk.
So I go back to where I started. We do not need a Judge in Charge of Reform. We need a Judge in Charge of Getting the Basics Right. We need defendants produced on time. We need facilities that work and allow us to do the jobs required of us. And where do I suggest getting the money to fund these basics? Well you could start by scrapping the FOH pilot. After all, I don’t need six months evaluating the burns to my lap to work out that a chocolate teapot is not the way to make my morning cuppa.