Monday Message 09.02.26

Justice Needs Juries – Parliamentary Lobby Day – Tuesday 3rd February 2026

The Parliamentary Lobby day took place in the Houses of Parliament on Tuesday last week, supported by both the CBA and the Bar Council.

Around 90 barristers from all over England and Wales, including many of our Circuit Leaders, travelled to Westminster to meet MPs and Peers to discuss the proposed restrictions on the right to trial by jury. We are very grateful to everyone who took the time to support this event, including representatives of the family bar.

Our particular thanks go to the MPs and Peers who came to meet with us. We heard speeches from Fabian Hamilton (Labour MP  for Leeds North East), Nick Timothy (Conservative MP for West Suffolk, and Shadow Secretary of State for Justice) and Kirsty Brimelow KC (Bar Council Chair). The campaign to protect existing rights to trial by jury continues to have strong cross-party support.

A picture of those barristers who attended (braving the wind and rain) can be found here on the CBA linkedin page here, where you can also follow our collective progress.

Cassia Rowland addresses Bar Council

Cassia Rowland of the Institute for Government addressed a meeting of the Bar Council on Saturday 7th February 2026, setting out key findings from the IFG’s study of the potential impact of proposed jury trial reforms.

Details of the IFG’s findings are set out on the IFG website.

The IFG study has concluded that the creation of a Crown Court Bench Division will not make an appreciable difference to Crown Court delays or the backlog. Meanwhile, the effort the MoJ is putting into its proposed changes is taking focus away from the important investment, efficiencies and reforms which are essential, and would bring down the backlog.

Next Steps

The CBA and the Bar Council are continuing with their engagement with parliamentarians over the proposed reforms. There are a number of meetings scheduled over the next month.

The government have shown no sign of rethinking its support for the MoJ’s proposals. We expect shortly to see the publication of the draft legislation, together with the Impact Assessments which will supposedly show the economic and equalities impacts of the proposal.

Sir Brian Leveson’s Review of the Criminal Courts – Part 2

Part 2 of Sir Brian Leveson’s Review of the Criminal Courts – ‘the Efficiency Review’ – was published last Wednesday (5th February 2025).

Both the full report (which is in two volumes) and the helpful 24-page overview document can be found here.

The CBA’s initial response to the report can be found here.

Riel Karmy-Jones KC and Andrew Thomas KC met with Sir Brian and members of his team to discuss the report shortly before its publication. We are already engaging with both the MoJ and the Judiciary over the implementation of its recommendations.

Over the next two weeks we will set out a slightly more in-depth review of the report. The report is in two volumes, and we begin with an overview and with comments on the first half. This week we will look at its conclusions on:

  • ‘The Context’ – Nature and cause of the problems
  • ‘One Criminal Justice System’ – a call for joined up thinking
  • Police and Prosecution – Case Preparation
  • Disclosure

Overview of our response

This truly is a landmark report. The CBA welcomes its publication, and we broadly support its recommendations.

There will no doubt be debates on some of the details of implementation – such as on the appropriate use of video and AI technology – but these are areas where we agree that reform and modernisation are required.

This report contains a detailed analysis of the problems which have led to long delays in the Criminal Justice System (not just the courts), and all of their many consequences. Sir Brian has considered the impacts on all participants, including defendants, complainants, witnesses, court staff, judiciary and (importantly) the professions.

The report is comprehensive. It will (we hope) lead to many improvements in the governance of the CJS and the provision of services. In many places, it reflects work which is already taking place, such as the work of the Crown Court Improvement Group (CCIG) and Jonathan Fisher KC’s recommendations on disclosure, which can be found here.

Part 2 of Sir Brian Leveson’s review brings these various strands together and will undoubtedly be a touchstone for all of the debates on CJS reform which will take place over the following years.

There are 135 separate recommendations, but they vary in importance and in their form. Some are detailed and prescriptive. Others are relatively high level, calling on relevant agencies to “consider” whether a particular reform may be appropriate.

A key argument which Sir Brian rightly makes is that the CJS has to be viewed as a whole – from police investigations at the start through to prisons, probation and aftercare at the end.

A very welcome chapter concerns the “workforce” in the CJS, including the professions. Sir Brian has recognised that there is a very real threat to the future of the professions caused not only by the relatively falling levels of remuneration for publicly funded criminal work, but also working conditions.

The risks faced by the Criminal Bar are significant, but in many respects they are even worse for Criminal Solicitors. There are welcome proposals for supporting training for criminal legal aid solicitors. Sir Brian has also raised the question of whether there is merit in ‘some sort of consolidation’ in the criminal legal aid market. His recommendation goes no further than to say that the MoJ should work with the legal professions to consider the best operating model. The CBA’s position is that any discussion around changes of that nature should be considered with the utmost care, respecting the valuable contribution provided by smaller local and niche firms. We do not want a return to Chris Grayling’s proposal for a market dominated by a handful of giant firms (the rejected ‘Stobart Law’ model).

Of course, we have strongly disagreed with Sir Brian over the Part 1 proposals for the creation of the Crown Court Bench Division (CCBD) and the removal of the automatic right of appeal from the Magistrates’ Courts. Those are, in truth, separate issues which should not cloud the importance of Part 2’s recommendations on investment and efficiency. Those Part 1 proposals will inevitably have to be treated separately because they require primary legislation for which there is no mandate. Put simply, it is the MPs and Peers in Parliament who will resolve those disputes, not Sir Brian or even the Deputy Prime Minister, David Lammy.

In the meantime, everyone concerned must get on with the important job of bringing Sir Brian’s Part 2 recommendations into effect. It is important that this report is read in full throughout government, from the Prime Minister down.  This report should be a wake-up call to the Treasury of the consequences of neglecting an essential public service. As Benjamin Franklin once said, “an ounce of prevention is worth a pound of cure”.

‘The Context’ – Nature and Causes of the Problems in the CJS

Chapter 2 of the report is headed “The Context”. This analyses the reasons why the criminal courts have become increasingly inefficient, leading to backlogs and delays. There has been a careful examination of the data and also engagement with the judiciary, the professions and other stakeholders.

Sir Brian sets out the scale of the crisis.

Since 2019:

  • Crown Court backlogs have more than doubled (from 35,000 cases to 80,000).
  • Magistrates Court backlogs have increased by 74% (from 215,000 cases to 373,000).
  • The median average time taken from sending a case to its conclusion has increased by 58% (from 101 days to 160 days).
  • The remand population in prison has increased by 75% (from 9,700 to 17,000).

However, the report does not just reflect these simple ‘all case’ averages. It also highlights the fact that the delays disproportionately affect certain types of case. Delays have increased across the board, but the truly enormous effect has been on the cohort of ‘not guilty / defendant on bail’ cases. A large proportion of these are cases of RASSO and violence.

The report identifies a number of causes.

  • Courtroom capacity has been reduced. In the Crown Courts, that manifests as a reduction in the number of sitting days.
  • Sitting hours per day have decreased. That reflects the delays and breakdowns which we experience daily , and also a significant rise in the number of ineffective trials.
  • Hearing time per case has increased, reflecting an increase in complexity in the work.

“The most significant cause is chronic underfunding at every step.”

Sir Brian is blunt in saying that most of these problems are due to underinvestment. MoJ spending as a whole has declined in real terms since 2007/08. The report highlights some of the worst cuts, including a 69% cut in capital spending and 33% cut in day-to-day spending. The workforce in our courts was cut by 22% and criminal legal aid by 42%. There have been some steps taken to halt the decline in spending, but overall when adjusted for inflation MoJ spending remains 14% below 2007/08 levels (compared to an average increase of nearly 20% across all departmental budgets).

The report highlights the reduction in capacity caused by court closures and maintenance failures. Between 2010 and 2021, 162 Magistrates’ Courts were permanently closed (50%), as were 8 Crown Court centres (11%). There are £1.3 billion worth of repairs outstanding. Whilst HMCTS claim that disrepair has only a marginal effect on Crown Court capacity (they say it is only 2%), the report also highlights independent research which shows that this does not capture the real potential cost, which includes the fact that this prevents expansion.

The problem has been made worse by the fact that different parts of the criminal justice system have been treated differently. Beginning in 2007/08, there were cuts across the board to the entire CJS. A decision was then taken to restore funding to the police, and to embark on a substantial recruitment drive. This eventually resulted in an increase in the number of prosecutions, but without a corresponding increase in capacity in the courts, probation and prisons.

Workforce Issues

The report also sets out challenges for the workforce in the criminal courts. The number of solicitors undertaking criminal legal aid work has fallen by a third since 2014. The total number of junior barristers who undertake criminal work has dipped but is now roughly equal to 2017/18 levels. However, there has been a significant loss of experienced barristers, including a 25% reduction in the number of KCs undertaking criminal legal aid work. That suggests that the criminal bar has been better at recruitment than at retention. The crisis in retention of full time criminal barristers was made clear over four years ago in the Government-commissioned independent Review of Criminal Legal Aid by Sir Christopher Bellamy, published in November 2021.

As Part 2 of the Leveson Review recognises, this loss of criminal legal aid workforce does not just impact on the availability of criminal lawyers to conduct the work. There is a corresponding loss of experienced professionals to prosecute cases, and to progress to fee-paid and salaried judicial positions.

‘One Criminal Justice System’

Chapter 3 addresses the need for joined up thinking.

A key theme of the report is the importance of seeing the work of the criminal courts in the context of the Criminal Justice System as a whole. Within this section of the report there are many detailed recommendations for the government and courts’ administration, all to the end of achieving a ‘single vision’ for the CJS.

Important recommendations in this section include:

  • The appointment of a “Criminal Justice Adviser” reporting directly to the Prime Minister, to coordinate the work of CJS agencies across government. We agree that this is necessary to ensure that the CJS receives the priority it desperately needs.
  • The creation of an independent body (such as an HM Inspectorate of Courts Administration) to examine HMCTS’ operation of the Courts. We agree with this: allowing HMCTS to ‘mark its own homework’ is not enough to ensure proper governance and accountability.
  • Improvements to data gathering and performance assessments.

Sir Brian’s Review echoes the CBA’s own submissions. We have made clear for over a decade – in repeated consultations with government and across Parliamentary select committees – the importance of joined up planning and commensurate funding as between the different agencies from start to finish of the criminal justice process.

It is positively damaging to increase police funding to increase charging rates without also funding the Courts to process the resulting increase in prosecutions; likewise, if the productivity of the criminal courts is to go up, there must also be corresponding provision for the probation and prison services who will have to manage convicted offenders.

Police and Prosecution – Getting it Right First Time

In Chapter 4, Sir Brian has placed emphasis on the speed and quality of case preparation by Police and CPS. He has made detailed recommendations about the interaction between the two agencies, the introduction of national standards and improvements in training. An important recommendation is the removal of the requirement for the police to redact information before sharing it with CPS, an unnecessary process which has caused considerable waste and delay.

The report places considerable emphasis on the use of technology to improve services, including the greater use of video technology to provide advice to suspects in police custody, and the use of AI for case preparation and disclosure purposes.

We support the broad thrust of these proposals, but a lot of work will be required to ensure that they are deployed only where appropriate, and without compromising fair treatment of suspects and the fairness of prosecutions.

Disclosure

Chapter 5 of the report considers disclosure. Sir Brian emphasises his recognition of the importance of proper disclosure to the fairness of proceedings. The report refers to some of the failures which have occurred, from Judith Ward through to the Post Office Horizon scandal.

Sir Brian does not propose any change to the statutory tests within CPIA or to fundamental principles. The discussion focusses on the difficulties of managing effective disclosure in the light of the volume of digital evidence which we all now have to contend with.

Sir Brian has recommended the removal of the ‘rebuttable presumption’ that certain categories of material should normally be disclosed to the defence (see para 86 of the AG’s guidelines). He has concluded that rather than simplifying the decision-making process, the presumptions have placed a disproportionate burden on the prosecution. The volume of material far exceeds what was originally envisaged, much of which (he believes) does not really meet the CPIA test for disclosure.

His recommendation is that the rebuttable presumption should be removed from the AG’s guidelines. This does not affect the prosecution’s duty to schedule the material, but (he argues) will allow a more case-specific approach to whether the material in fact meets the test for disclosure. The report refers to taking other measures to promote “a more consistent use of the existing framework”, which no doubt would take the form of additional guidance (eg. the CPS manual of guidance and/or training).

We recognise the reasons behind this recommendation, but the CBA would wish to engage on the detail of any changes to the overall framework of disclosure guidance. There is always the risk that a proposal which is designed to reduce the burdens at one stage of the process simply move the burden to another stage, such as by increasing the risk of disclosure being litigated before the Court: that would add to the burden on the judiciary and inefficient use of court time. Also, early disclosure is important to the promotion of early resolution of cases.

As noted already, the report recommends measures to speed up the process of redaction, including the use of AI. This may give rise to an increased risk of errors. To address this, one recommendation concerns placing legal duties on defence lawyers who receive inadvertently unredacted material to prevent its further disclosure. Whilst this would reflect existing ethical duties around inadvertent disclosure (eg. disclosure of privileged communications) care will have to be taken about what this might mean in practice. Would it require defence lawyers to review voluminous material before providing copies to their clients? And how are defence lawyers meant to know whether details have been disclosed inadvertently or deliberately?

There are a number of recommendations over the increased use of technology, including AI, to review unused material for disclosure purposes. This is work which is already in-hand elsewhere within government, and which has been considered carefully in the Fisher Review. A key recommendation, for example, is a proposal to use AI to produce summaries for the purposes of scheduling material for review.  Sir Brian balances this also with a recommendation that there should be early defence engagement in search strategies.

These proposals will need careful scrutiny, including as to the auditing of such systems and the training and guidance which will accompany them. Accurate summaries are essential to the effective disclosure of unused material. They are fundamental to the ability of both prosecution reviewing lawyers and the defence to recognise whether material may be of significance to the defence case. They are the foundation of focused disclosure requests and Section 8 applications.

The report recommends a revised Criminal Practice Direction should introduce potential sanctions for non-compliance with defence duties of disclosure in relation to Defence Case Statements. He has rejected proposals for sanctions against legal representatives themselves (an approach with which we agree). He proposes a new form of sanction, namely a rule which would prevent the defence from relying upon matters which had not been disclosed within the Defence Statement. This is a significant step up from the current rules, which are limited to allowing adverse comment as a result of non-disclosure.

There is also a welcome recommendation for improved training and guidance to improve the consistency of disclosure in RASSO cases.

In next week’s Monday Message, we will go on to discuss Sir Brian Leveson’s recommendations on:

  • Listing and Case Allocation
  • Preparation for First Hearing and Case Management
  • Remote Participation, including increased use of video hearings
  • The Judiciary and the Legal Workforce
  • Hearing Processes, including PECS, Interpretation, Digital Jury Bundles, Expert Evidence and Section 28
  • Other CJS issues

Circuit Leaders’ call for Evidence of the Causes of Delay

Any members who experience delays in the Crown Court due to matters such as late production of prisoners, court system failures, please email your Circuit Leader with the details.

Please Keep Writing to Your MP

Writing to your MP remains one of the most effective ways for those who practise within, and best understand, the criminal justice system to make their voices heard. Many of you have written. Please write again, and please also encourage colleagues who work in other jurisdictions of the law to write, together with friends who may share our view on the matter.

As before, the following resources are available: 

PLEASE do CC in both

so that we can continue to collectively monitor numbers.

Yours,

Riel Karmy-Jones KC                        Andrew Thomas KC
Chair                                                  Vice-Chair
The Criminal Bar Association           The Criminal Bar Association

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