The Law gazette report that HMCTS is ramping up court capacity amid the huge disruption caused by Covid-19. But the recovery plan is coming in for criticism, as the LCJ urges the government to be ‘realistic’ about funding
There is a sense of determined optimism in the government’s latest courts recovery plan. Judges are sitting, disposals are up and the number of hearings is creeping closer to pre-Covid levels.
Family courts have bounced back with particular gusto, with record numbers of sittings over the summer. Final hearings of tracked claims are expected to return to pre-Covid levels by autumn, and 600 courtrooms are available for family and civil hearings.
However, beneath the robust figures cited by HM Courts & Tribunals Service (HMCTS), there is evidence of a system under intense strain. In September there were more than 45,000 outstanding cases in the employment tribunal, and demand is expected to grow. Meanwhile, HMCTS is braced for a surge in possession hearings after a six month-stay, and the probate service is reportedly plagued by errors and delays. ‘There is already a significant volume of cases waiting to be listed so our focus now is on ensuring we process the current caseload as quickly as possible so we can manage the anticipated increase in demand effectively,’ it warned.
To tackle the backlogs, HMCTS said it is recruiting hundreds of staff; maximising judicial sitting time; reopening courts; and using more buildings as so-called Nightingale courts. Extended operating hours will continue until the end of the financial year in the civil courts.
The recovery measures have raised concerns. While the Law Society welcomed these efforts, president David Greene said HMCTS must make maximum use of normal court hours and the existing estate before introducing more drastic measures.
Nightingale courts are another point of contention, with commentators in both civil and criminal spheres claiming more buildings need to be opened up for trials. ‘It needs to be repeated that buildings outside the court estate with large rooms must be found and opened,’ James Mulholland QC, chair of the Criminal Bar Association (CBA), said.
‘In the four months since government was told about the need for a minimum of 60 extra courtrooms for criminal work, five Nightingale buildings now provide 10 extra courtrooms. The aim should not be to cram as many people as possible into the limited amount of existing space. With a virus that can be transmitted by close proximity, what is needed is more space.’
HMCTS provided no detail in its court update about how many Nightingale courts will open.
The cost of the recovery plan could also prove problematic. Giving evidence to the Commons Justice Committee last week, the lord chief justice said it is ‘absolutely vital’ that courts operate at full pelt next year.
‘This year there is no constraint on sitting days in any jurisdiction so if we have a courtroom that we can use and there is a case able to be tried in it we will do so irrespective of whether technically we are running up against sitting day limits. In my view it is absolutely vital that the same approach is adopted next year and I would be disappointed – a very mild word – should funding from the Treasury to the Ministry of Justice not allow for that,’ Lord Burnett of Maldon said.
‘My view for next year in all jurisdictions is that rather than the traditional approach to funding… there has to be a realistic assessment in every jurisdiction of the likely expectation of work coming into the system and in addition, there has to be a clear understanding of the additional backlogs we have to clear.’
HMCTS faces the unenviable task of clearing the backlog while simultaneously protecting court-users. And as courtrooms fill up, the cleanliness of public buildings is under growing scrutiny.
Mulholland told CBA members safety measures in courts have been ‘inconsistent for months’ and demanded that a national risk assessment be drawn up.
While this has yet to happen, the government is looking at the possibility of publishing court-risk assessment documents. Asked at a public user event how people can find out about specific safety arrangements for individual courts, HMCTS said individuals can request a copy from the court. However, it is ‘also doing some work in the court and tribunal finder service to explore whether we are able to, more proactively, put them up there to see’.
As the UK awaits vaccination, court backlogs are but one obstacle on the justice system’s own road to recovery.