Monday Message 12.05.25
For most people, Saturday the 3rd May 2025, was part of the long bank-holiday weekend to be spent with friends and family. For over a hundred members of the Criminal Bar it was a day which was spent at the CBA Education Conference, at their own expense, learning from excellent speakers how best to deal with appeals from every criminal court. The determination, amongst those of us who remain, to be the best that we can be, is a matter of great pride for the CBA and should be appreciated and admired. Our thanks go to the Director of Education, Paul Jarvis KC, his committee, our esteemed speakers and to Aaron Dolan for flawless organisation of another first class event.
On the 23rd April 2025 the Michael Sieff Foundation launched its report on Justice for Children with SEND and Neurodivergence. The report can be found here. Children with neuro-disabilities have higher rates of being incarcerated, receive longer sentences and are at a higher risk of reoffending than those without such conditions. The report was designed to address these issues by offering practical, fully costed and effective reforms to the Youth Justice System. If your practice involves dealing with children this document is a must read. The Criminal Bar undergo specialist training before undertaking work in the youth court and must certify that they have the necessary skills, knowledge and attributes to do so. In 2019, the SRA consulted on whether Solicitors who undertake this work should be required to have Higher Rights qualifications. They did not implement this requirement but are continuing to keep advocacy standards in the youth court under review, including whether mandatory training or accreditation are required. The CBA are working with the very talented Kate Aubrey-Johnson, one of the authors of the report, to consider the best training programmes moving forwards.
The future of the Criminal Justice System:
The prison population in England and Wales is due to rise to between 95,700 and 105,200 by March 2029. In April 2025 operational capacity was 89,228 and the prison population was 88,084. There is little available space and we cannot build our way out of this crisis. The Leveson Review is to suggest “radical” reform to reduce the backlog of cases within the crown court and to create swifter justice. Where are those sentenced to imprisonment in the swifter justice process to be housed? Is there a correlation between the Gauke Review and the Leveson Review so that those who are currently imprisoned for offences with a maximum sentence of two years or less, or those who would currently receive a sentence of two years or less for criminal offences will not receive custodial sentences in the future? If that is to be the position, then there is little doubt that the opposition will stoke up anger amongst the public with rhetoric that this Government is soft on crime. Whether the Government has the courage to send fewer criminals to prison or whether they will yield to public opinion and, as a result, shelve the recommendations in both of these reviews remains to be seen.
If there is to be a mid-tier court between the Magistrates’ Court and the Crown Court, where victims and defendants are to be tried without a jury for serious criminal offences, this can only be to speed up the trial process and any resultant sentencing. This will require significant numbers of skilled criminal Barristers and Solicitors with Higher Courts rights who have experience in conducting Crown Court trials. Those Solicitors who continue to conduct cases in the Magistrates’ Court are an ageing group with many legal aid solicitors leaving the profession because it is no longer financially viable. There has been a 40% drop in the number of firms willing to do criminal cases in the last 10 years. There has been a 26% drop in the number of duty Solicitors since 2017 and numbers continue to fall. Nearly half of all defendants appearing in the Magistrates’ Court on imprisonable offences do not have legal representation and this has risen by 35% in 2022. Solicitors without Higher Rights cannot therefore fill the gap in the mid-tier court without further reducing their numbers in the Magistrates’ Court.
We understand that the mid-tier court will have a Judge and two Magistrates. Magistrates are unpaid volunteers who need to work for an employer who will allow them to take a minimum of 13 full days or 26 half days off work to sit. Inevitably, that limits the people who can become Magistrates. The latest available statistics demonstrate that over 80% of them are aged 50 or over and many are retired. Only 4% are under 40. It takes 12-18 months from application to appointment. Low morale has been noted by the Magistrates’ Association. Their numbers have decreased substantially and rota teams experience difficulty in finding magistrates who are available to sit. Last year, 151 trials were adjourned on the day of trial because there were no Magistrates available. There is a national shortage of over 13,000. This was the rationale for increasing the retirement age to 75. The maximum sentence that they can impose was increased in 2022 and reduced shortly thereafter due to prison overcrowding, so any further increase will inevitably have the same result. The Magistrates’ Association accept that research demonstrates that diverse bodies make better decisions 87% of the time. When there is already a recruitment crisis, where are the diverse and younger Magistrates coming from to sit in this mid-tier court?
Backlogs:
There is a significant backlog of cases in the Magistrates’ Court. CBA research has revealed that, as in the Crown Court, the receipts are outweighing the disposals in every quarter. In the final quarter of 2024 receipts were 70,305 and disposals were 63,744. Of the 309,939 cases in 2024, 73,567 were trials, a rise of 26% from 2023. In 2024 there were 84,178 trials. The ineffective trial rate in 2024 was 22% and 21% of scheduled trials were vacated. This means that it is not running at full capacity or efficiency. In the Crown Court the ineffective trial rate is 25% and 38% of the scheduled trials were vacated before the day that the case was due to start. That amounted to 19,088 cases vacated before the trial date and 7,822 were not effective.
The picture of backlogs is not the same across England and Wales. Statistics provided to the CBA demonstrate interesting regional variations. The most severe backlogs are in London, the South East and the Midlands. The backlog in London is 16,075. The ineffective trial rate is 29%. Of the 9,950 trials scheduled, 2,506 were ineffective. In the South East, the backlog is 16,114 cases with an ineffective trial rate of 23% and 24% of trials being vacated before the hearing day. In the Midlands, there is a backlog of 12,899 cases. The ineffective trial rate is 29% and 42% of trials were vacated before the day of the hearing.
Some of the Circuits do not consider that the number of outstanding cases in their courts are unmanageable and cannot see why they should be part of a national three-tier court system.
In the North West the backlog is 10,238. In Liverpool the ineffective trial rate is 14% and 45% are vacated before the day. The North East has a backlog of 10,493 and the South West 6,034. In Wales it is 2,663 and, in fact reduced in the last quarter of 2024.
Of course, the number of prosecutions of serious sexual offences is increasing each year and, as a result, the national backlog of adult rape cases rose by 25% in 2024 and the backlog of sexual offences rose by 18%.
All courts are plagued by delays caused by late delivery of prisoners, lack of interpreters, and a lack of advocates. None of these things will change in a new court. We will await with interest whether the new mid-tier court will have better resources or services, but we doubt it. We are also not convinced that the new court will be vastly quicker than the current jury system, particularly if the court is obliged to provide written factual and legal determinations. No doubt the new scheme will have within it a pilot scheme and a regular review date because the deprivation of a right to trial by jury is not something that should be done without good cause. We would resist any efforts to remove the requirements for properly trained and skilled advocates to be conducting criminal trials in the mid-tier court, particularly in circumstances where a Judge is deciding guilt and punishment. In 2024, 126 trials were adjourned because there was no Judge available to conduct the case.
The current position:
The Public Accounts Committee has told all Government agencies that the solution to the current backlog cannot consist of apathy whilst we await the results of the Leveson Review. The 110,000 sitting days is being triumphed as a great improvement, but it is far from the maximum number of days that courts can sit. It is therefore saddening but not surprising for us to be receiving emails from the Resident Judges at Wood Green and Isleworth informing us that due to a reduction in their sitting days capacity, a number of trials which were due to be heard in two years’ time are now to be heard in three years’ time. Trials cannot be held for prisoners on remand within the custody time limits and so to achieve that bail cases have to be adjourned further. Rape cases will wait two years for a trial. Standard bail cases will wait three years. Because the courts do not know what their allocation for sitting days will be in 2026 they have to be cautious and cannot plan ahead. The real efforts that the judiciary and the Criminal Bar have made to reduce the backlog are being frustrated and further barriers to progress are being added. It must feel to some of our Resident Judges that they are being penalised for being efficient.
The Criminal Bar awaits news from the Government as to how it intends to ensure that the 56% of us who are actively seeking to leave the Criminal Bar can be persuaded to remain.
Pupillage:
Many congratulations to all of the students who received offers of pupillage this week and particularly those at the Criminal Bar, whether as employees or the self-employed. We are delighted that you have chosen, despite all of the difficulties, to join us. We will continue to support you throughout your career and will fight to ensure that our profession survives, grows and flourishes in the years ahead. It is still a privilege to be a member of the Criminal Bar and to be able to prosecute and defend the most serious cases across England and Wales. We look forward to seeing you at CBA events in the years to come and in robing rooms across the country. The officers, our executive and our CBA Young Bar Committee, led by Emma Fielding, are here to assist you.
If you did not receive an offer of pupillage this year you have our sympathies. Many of our most successful practitioners did not get pupillage in their first round of interviews. Do not lose hope. We are here to help you succeed. CBA membership is open to you as it is to our new pupils whether at the self-employed Bar, the CPS or the employed bar.
Section 28 of the Youth and Criminal Justice Act pre-recorded evidence:
HMCTS is currently developing its own in-house technology to support the delivery of Section 28 of the Youth and Criminal Justice Act pre-recorded evidence special measure to replace the current Vodafone contract.
The new technology, known simply as ‘PRE’, will soon be launched in every Crown Court in England and Wales and the High Court.
It is important that advocates who deal with s.28 work are aware of the new technology and actions they will need to take to gain access
PRE will soon be launched in every Crown Court in England and Wales and the High Court, therfore HMCTS are hosting a webinar on Thursday 15th May at 16.30hrs.
Details on how to book for the webinar and to register for a new PRE account here.
Calling members of the Junior Bar – can you be an advocacy buddy?
Southwark Crown Court in conjunction with ICCA are running two competitive mock trials to be judged by Southwark Judges on the 2nd June 2025 from 4.30pm.
They are looking for assistance from members of the junior bar to work with the selected students – helping them to prepare to gain the most from the experience. We are ideally looking for those who have completed their NPP training.
If you are interested please contact Marie Spenwyn for further information by Friday 16th May.
Yours,
Mary Prior KC
Chair, The Criminal Bar Association