Sitting days

The “sitting day” is the unit of currency which has been used historically to determine the provision of resources in all jurisdictions. In particular, staffing levels follow sitting day allocations. As is well known, in the two financial years leading up to April 2020, there were very substantial cuts in the sitting days in the Crown Courts. During the course of 2019 it became clear that the volume of outstanding cases in the Crown Court was rising and so additional sitting days were agreed by the Lord Chancellor at the end of 2019. In Civil and Family, in broad terms, the sitting day allocation was designed to match the likely availability of judicial resources, that is both salaried and fee-paid judges. Volumes of work in both the County Court and the Family Court were increasing before Covid engulfed the nation. Sitting days, or more accurately sessions, in the Magistrates’ Court, were adequate to deal with the volumes of work flowing through that court.
During the initial lockdown from March 2020, and in the months that have followed, the position in all jurisdictions is that as much work as it has been possible to do consistently with social distancing and available technology, has been done.
The Lord Chancellor and I have agreed that sitting days are not a constraint in any jurisdiction for the remainder of this financial year. My expectation is that the same position will be agreed for the next financial year. That means that if there is capacity to deal with cases, they will be dealt with without regard to sitting days.

Capacity

The capacity of the courts, in each jurisdiction, depends upon a range of factors which together contribute to the ability to dispose of business.

Physical Capacity

There is the physical capacity of our court estate. This receives a good deal of attention but is only one of a number of important factors which bear upon capacity. The increased use of technology to enable some hearings to be conducted with all participants attending by phone or online video link, or some of those participants, enables courts and hearing rooms to be used which, because of their size, would be unsuitable for physical hearings given the need for social distancing. That said, it is not only the suitability of court rooms that has an impact on capacity. In all courts there is the wider question of general footfall. Social distancing must be maintained in the public parts of courts and in the facilities available for parties, their lawyers and witnesses. In the criminal courts, particular difficulties with social distancing in the cells coupled with necessary legal visits present acute problems. In all the court buildings, local steps have been taken, often through physical adjustments, to enhance the number of court rooms that can be used with precautions being taken in the public parts. For example in some locations portacabins have been used. As this memorandum is being prepared, HMCTS are on course to achieve the goal set out in their recovery plan [1] for the Crown Courts to have 250 courtrooms available to hear simultaneous Crown Court trials. HMCTS plans to equip a further 40 or so courts for Crown Court trials over the next few months in addition to a number of ad hoc courts being established outside the current estate. Physical capacity is thus a significant issue in the Crown Court for trials, particularly for multi-handed cases where defendants are in custody. In the Family and Civil courts the physical capacity of the courts is not presenting immediate problems, neither is it in the Magistrates’ Courts save for the capacity of cells.

Judicial capacity

In all jurisdictions, work is increasing. Our expectation is that work in the Criminal, Civil and Family jurisdictions will continue to increase for the foreseeable future. The system faces an acute problem in dealing at the same time with increasing demand and accumulated backlogs which result from Covid. In each of the jurisdictions the judicial resources are made up of salaried judges as well as fee-paid judges. In the Magistrates’ Courts there are salaried judges, fee-paid judges as well as the body of magistrates.
In both the Magistrates’ Court and the Crown Court, the best estimate is that there will be sufficient judicial resources to deal with the cases for which we have physical and staff capacity in the foreseeable future. For the last two or three years it has not been possible to offer Recorders more than their minimum sitting and even that has been difficult. We expect to be able to provide Recorders with more sitting opportunities. To recover backlogs in the Crown Court the fee-paid Recorders will be a vital resource.
Similarly, in the Magistrates’ Court, the District Judges (Magistrates’ Court) can be supplemented by increased use of fee-paid deputies. Our experience is that the magistrates have been keen to keep sitting. In addition, there is something of the order of 1,000 new magistrates who have been appointed and are in the process of being trained. They will provide additional judicial capacity.
The position in the senior courts (the High Court and Court of Appeal) presents no difficulty with judicial resources. The same is not true of the Family and County Court. As the Committee knows well, the District Bench is well under-strength. The last two competitions have not provided as many judges as were needed. Large numbers of deputy district judges have been appointed (over 300 in 2019, and over 100 in 2020). The latest recruits are still undergoing training. Last year’s cohort is gaining experience.
The District bench, and the deputies, provide the main judicial resources for both the County Court and the Family Court. It will be necessary, in the short term, to encourage deputies to increase their commitment to sitting to deal with the new and outstanding cases in both jurisdictions. Our hope is that the current competition for the District Bench will deliver a larger number of candidates for appointment next year. Additional deputies will be sought. But in the meantime there will continue to be pressure on judicial resources in those courts which could well have an impact on capacity.

Staff capacity

I have indicated that the HMCTS headcount for support in the courts is dictated by sitting days. It follows that even without the pressures of Covid, if the volume of work in all jurisdictions continues to increase, there will be a need for additional staff to support the hearings. Furthermore, the expansion in the use of online video hearings of one sort or another calls for additional staff support to set them up.
The need for additional staff to support recovery in all the jurisdictions has been recognised not only by the judiciary but also by HMCTS and the Lord Chancellor. The Lord Chancellor secured additional funding to recruit 1600 new court staff. That is taking time and, inevitably, new members of staff may not immediately be able to undertake all the tasks necessary.
At a local level, difficulties continue in some parts of the country in setting up online hearings and otherwise having sufficient staff to support hearings. Running court buildings in compliance with social distancing guidelines calls for additional staff. Increasing the through-put of cases in all jurisdictions is vital to recovery and will only be possible if a sufficient complement of HMCTS staff is available to support them.

Other participants’ capacity

The capacity of the courts to deal with cases depends not only upon the physical space to do so, judicial resources and the availability of staff but also the capacity of others whose involvement is necessary. For example, dealing with increased volumes of cases, or conducting cases with the assistance of technology, depends upon the ability of others to play their part.
This is perhaps most obvious in the criminal context. Major players include the Crown Prosecution Service, defence lawyers, the police, the Probation Service, and also the prisons. The capacity of prisons to enable prisoners to attend hearings remotely and for their lawyers to speak to them remotely is critical. So too is the ability of the CPS, and other lawyers and the police, to attend hearings remotely.
An insight into the importance of such relationships comes from our experience of video remand hearings. Long before Covid, pilots were running in some parts of the country which enabled remand hearings in the Magistrates’ Courts to be conducted with the defendant at the police station. Following lockdown, to their great credit, every police force in England and Wales enabled remand hearings to be conducted remotely with the defendant remaining in the police station. This enhanced public safety and enabled very many more cases to be dealt with in a given session than would have been possible had the defendants attended. That freed up the Magistrates’ Courts to deal with other work. The police forces of England and Wales have decided unilaterally to withdraw that co-operation for reasons of their own. That decision, being implemented on a force-by-force basis, will disrupt the operation of the Magistrates’ Courts and reduce the throughput of work. It is doing so already in the areas where the decision has been implemented. I am deeply disappointed that the decision has been made and hope yet that the intervention of ministers might reverse the position.
In the Family Court, when dealing with care cases, the ability of CAFCASS and local authorities to take part, as well as other parties including family members, in the difficult circumstances that they face, feeds into questions of capacity and the ability of the system to cope with increased volumes of hearings.

Funding

The Lord Chancellor has secured two additional tranches of money from the Treasury during the Covid emergency. In particular, money has been agreed to support the additional staffing to which I have referred, and also to pay for the rapid rolling out of technology to support hearings. Many courts had long conducted telephone hearings for procedural matters and the use of video was well established in some courts. That said, it is remarkable to reflect that most judges were not equipped with telephones that could handle conference calls before Covid struck. That was put right very quickly. Video hearings could be conducted in a small number of courts, but during lockdown judges in all jurisdictions quickly moved to using commercially available online platforms. The Cloud Video Platform was being piloted in a number of courts before Covid. That has now been made available across jurisdictions and has contributed to the capacity of our courts to deal with work over the last few months. A better system was under development as part of the modernisation programme. That work is still underway but will need continued financial support from the Treasury through the Ministry of Justice.
The experience in all jurisdictions has been that where the modernisation programme has been most advanced, the courts in question were better able to weather the initial storm. In particular, those courts which were digitised were better able to cope.
As Covid struck, the programme to digitise the public law work in the Family Court was about to start. It had to be paused but is now underway. The County Court remains a paper-based court – something which is quite astonishing in 2020.
Alternative Dispute Resolution (ADR) has proved to be very successful in the Civil and Family courts. The increased investment in ADR has encouraged the early resolution of cases which in turn will increase capacity.
The Reform Programme must be completed. The Ministry of Justice is in the process of securing the next tranche of money from the Treasury. To my mind, it is unthinkable that there can be any question other than that the programmes under development must be seen to their conclusion.

November 2020