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Crown Court Trials : A statement from the chair of the Criminal Bar Association

Caroline Goodwin QC, chair of the Criminal Bar Association, said:

“Any change from the norm even those contemplated by any extra emergency powers needs careful consideration. This is not the time for knee-jerk reaction. We note that justice minister Chris Philp made mention before Parliament this week of reducing the minimum number of jurors needed – from nine to seven – but states that this a distant consideration requiring changes to primary legislation. 

Last week the Lord Chancellor Robert Buckland similarly stated on radio that while this was a possibility it remained a distant possibility and that the immediate focus remained on the resumption of jury trials that would be safe for jurors.

The focus for everyone via the committee chaired by Mr Justice Edis is rightly on the resumption of jury trials within a court building setting – that must remain the focus short, medium and long term if we are to deal with a Crown Court backlog that was snowballing for a whole year leading right up to the suspension of trials and whose cause has nothing to do with Covid-19.

A former high court judge, a former president of the Supreme Court, and a former Lord Chancellor, have all also drawn to our attention the possibility of judge-only trials as a means of both resuming trials and reducing the case backlog. Unhappily this academic debate fails to address the root cause of the problem. What is needed is for Treasury to fully invest in the Crown Court, thus enabling the maximum number of courts to sit, together with the maximum number of judges.

Only this approach will restore public confidence in the criminal justice system.

The public do not wish to hear about delays and the fact that there are not enough courts to hear their cases. The extraordinary events of the past seven weeks are not to blame for the backlog, but rather the past seven years of continued government cuts.

The latest statistics from the Ministry of Justice published on 26 March reveal that 107,797 cases went through the Crown Court in 2019; yet for many, their days in court never came due to the Ministry cutting the Crown Court sitting days allowance. This has proved catastrophic. The Crown Court case backlog ballooned by 13% in one year to 37,434 as at 31 December 2019. There were 12,473 cases with fixed trial dates set for commencement last year, but “vacated”. It can be no co-incidence that courts were kept closed and judges forced not to sit.

That backlog continued to grow right up to the cessation of trials on 23 March and has grown again since. If there had been no short-sighted cuts, the issue of a backlog would not have raised its head. It is startling to note that only 12,094 trials took place in 2019. Shockingly also for the whole of 2019 a greater number, 12,473 trials, were vacated meaning a fixed date had been set with defendants, victims and their families all ready only to find that the trial date was pushed back into 2020 or now for some beyond. These statistics fail to record the many trials set down on warned lists in 2019 only to be bumped and bumped again so they may only now be appearing on fixed dates well into 2020 or even 2021.

All this happened long before Covid-19 and this perpetual booking of trial dates only for them to be bumped once more, and the backlog to balloon further, continued right up into March this year. The gross miscalculation taken over a year ago by the MOJ to take a 15% cut to the Crown Court budget for the whole of 2019/20 needs redressing. That miscalculation created a car crash-like pile-up of Crown Court cases that could not be dealt with as we commenced 2020 and again had nothing to do with Covid-19. This was cost cutting pure and simple. Crown Court receipts – all cases coming into the system – indeed rose, not fell last year, as the MOJ’s own statistics attest, to 107,797 in 2019 from 103,087 in 2018 and yet effective trials declined.

There is now a desperate and urgent need to address the backlog that has been created. The senior judiciary are examining how to resume jury trials safely because of the additional impact of Covid-19. Unlike previous years the Treasury has to step up and acknowledge its responsibility to the wider public, and invest in the Criminal Justice System.Meanwhile this week before Parliament Justice minister Chris Philp ruled out the notion of judge-only trials and insisted jury trials were here to remain. Only investment in the court budget will address both the case backlog and as importantly the charge to completion delays in the Crown Court that the government fails to acknowledge in public which now result in on average three years for both fraud and rape cases.

The MOJ’s own figures show that the mean average time for offence to completion for all offences was 335 days by q4 2018 and by the final quarter of 2019 had risen to 348 days. The mean average time recorded from offence to completion for all rape cases reached 2,543 days by q4 2018 and by q4 2019 had risen to 2,626 days. Delays for adult rape charge to completion by q4 2018 hit 1,321 days and fell back in 2019 but still averaged 1,081 days by q4 2019. These delays are simply unacceptable. Offence to completion times for fraud took a mean average of 1,029 days by q4 2018 and fell back marginally to 993 days by q4 2019. 

Turning to the importance of juries – they are an integral part of our justice system. They bring a collective wisdom and objectivity to cases, being socially responsible, not just in the more routine cases but in the most factually and legally complicated.
The criminal justice system remains the preserve of our collective responsibility, and not the domain of any elite minority. 

The right to trial by jury remains, as Lord Devlin remarked “the lamp that shows that freedom lives.” Maintaining general public participation in juries, without delineation for crime categories, ensures that the embers will continue to burn that fire the lamp of freedom.”

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