How can we stop the disproportionate impact of EOH/COH in the Crown Court?

The EOH pilots and plans, now imaginatively retitled ‘Covid Operating Hours’, were recently expanded upon during a Q&A presentation by HMCTS on 23rd September 2020.

When I asked whether HMCTS have recognised the clear discriminatory impact of the EOH/COH model, the response was, “it would be wrong to say no and try and draw a line under it. We recognise this could have different types of impacts on different types of users, including legal professionals. It has been designed in a way by the Working Groups so there are provisions in place for the legal professionals/practitioners to be able to, in advance of a listed hearing date, to request that it be moved where it causes practical issues or issues such as where they have caring responsibilities, childcare responsibilities or it’s not practical because of long distances to travel to get to court. These provisions have been put in place and the experience in Liverpool was that they were helpful, and they worked.

… Part of the assessment is to see how well that works, we’ve been working very closely with the Bar Council in these pilots to understand the impact on individual barristers and solicitors as well. To get a real understanding of how it’s working and what impacts are. From all of that assessment will come a decision on our ability to scale this up to help us recover the caseload and get back to listing cases with shorter waiting times.”

The presentation suggests that a flexible ‘pick and mix’ approach will be available to legal professionals in the Crown Courts and that list offices will accommodate the needs of counsel. This position is incongruous with the actual experience of attempting to obtain any change to listing for counsel’s availability which, in criminal matters, has generally been at the very bottom of the list of considerations the court will take into account. That is why the voices of the 480 people who completed the recent WICL survey are so important. The theory and rhetoric simply do not fit the reality.