‘Monday’ Message 06.07.21

Freedom Day: Stage 1 of a seven-year strategy

The public is being encouraged to look forward to ‘freedom day’, due to take place in just under a fortnight, when many of the restrictions to which we have long been subject will cease. Whether it will represent freedom to the numerous complainants, witnesses and defendants caught in the nightmare of delays experienced over the last few years is debatable. As all of us who practise within the criminal justice system know, freedom must be available to all and not just a privileged elite and it can only be created by a holistic, strategically planned and properly funded system containing a sufficient number of experienced legal professionals to maintain the edifice.

If a ‘freedom day’ is to have genuine significance for the tens of thousands of people in limbo, we must return to a time not seen in over two years where the weekly number of trials concluded exceeds those vacated.  In the weeks and months ahead, those essential components of the system, particularly criminal bar, HMCTS court staff and judiciary, will need to work together with understanding and sensitivity as to how they deal with the consequences of the removal of many restrictions in order that the number of jury trials can increase whilst ensuring that the physical and mental health of all involved in the trial process continues to be protected in the face of an ongoing risk.

The lifting of pandemic restrictions in place for over a year will add trial room capacity but considerable concerns remain about the availability of criminal barristers and recorders who are essential to prosecute and defend all those cases waiting in the backlog. There is no quick-fix for restoring numbers to the criminal bar after the exodus of the last five years because of poor rates for work done and a contempt for their well-being. After short sighted cost cutting led to plummeting prosecutions over the last five years, the Home Office and MOJ have had to abandon their own policies and pay for long overdue increases to the ranks of police and Crown Prosecution Service prosecutors as part of a recruitment programme in an effort to restore experience and morale.  Public services do not exist in a vacuum; they exist, survive and thrive by the quantity and quality of the people who run them.  The same principles which are considered relevant to the restoration of a functioning, efficient police and CPS must be applied to the public-minded criminal lawyers who support those self-same public services by prosecuting and defending the cases the police and CPS bring to court.
That is why we enter the final stages of submissions to the Criminal Legal Aid Review with a commitment to restoring defence fees across the board.  The survival of the independent Criminal Bar matters not just for each and every criminal barrister but for the multitude who will be denied access to justice if it fails.

With two weeks to go to ‘freedom day’, it is important to analyse where the criminal justice system is today. Last week in Parliamentary questions, Virendra Sharma MP asked the Secretary of State for Justice, “ what steps he is taking to tackle the level of cases that are withdrawn due to (a) court delays and (b) case backlogs”? Justice minister Chris Philp MP, stated “[i]n the courts we have taken decisive action to address the impact of the pandemic on how quickly cases can be heard” concluding that those measures have “enabled disposals to return to pre-pandemic levels in the Crown Court, which is over 2000 cases per week, and we completed over 7,000 jury trials last year”, before promising ,“[w]e will continue to address the outstanding caseload and reduce delays by increasing capacity in our physical estate, running Crown Courts to the fullest possible extent, using every judge and courtroom to maximise court sitting days.”

However, that is not the complete picture. MOJ figures show that in the first three months of 2021 26,092 cases were received into the Crown Court whilst there were 23,555 disposals during the same period. In that sense, disposals are back to pre-pandemic levels as during the first three months of 2020 a similar number were resolved in the Crown Court (23,319), but a higher number came in (25,942). We have to return to the first quarter of 2019 to see disposals (25,924) exceeding case receipts (25,770). The case backlog on 31st March 2021 peaked at 59,532.  It has begun to reduce over the last few weeks but we still have a long way to go in order to address the delays from a much enlarged backlog.

Mr. Philp is correct that over 7,000 of jury trials completed in 2020; it amounted to 8,353, comprising 5,366 effective and 2,987 cracked. However, more than twice that number, 19,626, failed to conclude in the same period; 2,257 were ineffective and 17,369 vacated. In the first quarter of 2021 many more trials were listed than preceding quarters totalling 4,189, but that number is still approximately 25% down on pre-pandemic levels (5,099 in q1 2020) and a third fewer than two years ago (6,698 in q1 2019). During the first quarter of 2021 5,078 trials were vacated, so still about 25% more than those listed.

The disparity between the total number of trials received into the Crown Court and those disposed of is even clearer. The same MOJ data reveals that 62,775 trials were recorded as Crown Court “receipts” in 2020 while total trial disposals numbered 46,018, increasing sharply the Crown Court trials backlog (which had been slowly rising in 2019) to 46,317 by the end of 2020.  The first quarter of 2021 saw 16,704 trials arrive in the Crown Court, whilst 14,239 trials were concluded.  There is a marked improvement in the number of trials being completed and that will continue once the removal of social distancing rules increases the use of existing trial room capacity; however, the capacity of criminal barristers to deal with the volume of cases is close to its limit, particularly, as many courts appear determined to return to a default position of in-person hearings. Meanwhile, despite total case volumes remaining vastly lower than seven years ago, we now have the highest trials backlog in records dating back to 2014:  48,755 as at 31st March 2021. It has been two years since the number of trials disposed of exceeded those received into the system. This is at a time when Government ministers are committing to a significant increase in prosecutions.

Soon, court capacity will no longer be the immediate problem and the strains continually placed upon a beleaguered bar will return to the fore yet again. Government must start to redress the pay rates for criminal advocates for work done as soon as possible or there will be insufficient professionals working within the system to meet demand not only next month but next year and the year after that. If justice is to be served without undue delay, we need a plan and we need it now.

Nominations for 2021 Bar Pro Bono Awards:

Nominations for this year’s Bar Pro Bono Awards are now open! If you know someone who has dedicated their time to others and deserves to be celebrated, please nominate them by 12th September, there are many categories available! Find out more here

Wellbeing Research Project:

The University of Cambridge has invited CBA Members’ to assist with a research study on ‘The role of chambers as a structural attribute of self-employed practice in supporting self-employed barristers’ emotional labour’.

The questionnaire takes approximately 15 minutes to complete and can be accessed here

Annual General Meeting:

The AGM will take place on Tuesday 27th July via a zoom meeting room.  If you wish to attend, please contact the administrator.

Vice Chair Elections:

The election is now open.  Candidates for the 2021 Vice Chair Election are Narita Bahra QC (2 Hare Court) and Kirsty Brimelow QC (Doughty St Chambers).  Please vote via the website before 16.00hrs on Monday 19th July.  ‘Manifestos‘ and further voting instructions can be accessed here.

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