The criminal courts of England and Wales are in crisis. The backlog of outstanding court cases stood at a record 60,000 at the end of March, according to Ministry of Justice figures released recently. Trials, for some, will not be heard until 2023. The tiny percentage of rape victims who see their alleged attacker charged face an average 1,000-day wait between the offence and the end of trial. The odds are cases will be heard in a crumbling, dirty building where basic services do not work and support staff have been cut to the bone. Such a state belies the notion that the country’s justice system is the envy of the world.
The pandemic, which initially shut courts in spring 2020, only served to exacerbate a problem that had built up as a result of swingeing cuts and disregard of the criminal justice system by successive governments over the past decade. It is not the courts alone that have suffered. Cuts there were mirrored in Legal Aid, and in the budgets for police and prosecutors. Taken together, that meant that the case backlog already stood at over 39,500 before the pandemic. Despite this, for the financial year leading up to March 2020, the MoJ had cut the crown court’s budget by another 15 per cent and reduced the availability of courtrooms, even as cases coming into the system rose from 103,087 in 2018 to 107,797 in 2019.
Desperate times have prompted calls for desperate measures, such as the suggestion that smaller juries, of seven rather than 12 jurors, be used to help clear the backlog. While that would be more palatable than juryless trials, such a remedy is misguided. It may have had some use last year as a temporary solution to social-distancing rules. But there seems little point in eroding a fundamental right to be tried by a full complement of one’s peers when lockdown restrictions are due to be lifted in England on July 19.
The answer is simple: more money. The Lord Chief Justice, Ian Burnett, has said the amount needed is “little more than a rounding error” for the Treasury to consider. The emergency use of “Nightingale” courts — repurposed civic buildings and even hotels and theatres — was a start. There is some evidence the backlog is shifting. Court time is allocated, even if judges and courtrooms are available, according to a budget arrangement between the MoJ and judiciary known as sitting days. The ministry’s recent decision to lift its cap on sitting days is welcome but this should extend beyond next year so that the maximum number of judges can preside over cases across the maximum number of courtrooms.
Like businesses everywhere, courts have discovered that the pandemic’s new way of working has thrown up some positive, cost-effective elements that can be continued. Many proceedings not needing the physical presence of juries or even defendants, such as pre-trial hearings and legal arguments, have been heard remotely. That has also spared judges and publicly funded barristers — some of whom, at the junior end, are paid less than the minimum wage once travel costs are factored in — the time of journeying across the country for hearings that last minutes. The importance of technology underscored by lockdowns has at last jolted more investment in courts’ antiquated IT systems.
The courts are the manifestation of the rule of law. If they cannot function properly, public confidence in justice is compromised. What is most needed is sustainable, long-term funding for the criminal justice system from top to bottom, rather than sticking plasters. Otherwise delays will continue, and justice delayed is justice denied.