Monday Message 14.07.25

The CBA Snap Survey:

The Government have made clear that this review is something that they will consider with an open mind. They are interested in other suggestions as to how the system could be saved from collapse and have invited our views. These will be presented in a written document for the Government with our suggestions. The response will be drafted by a team which will be chaired by Andrew Thomas KC, Francis FitzGibbon KC and Jeremy Dein KC. Time is of the essence.

To aid our response we will be sending a survey to you this week so that everyone has the opportunity to express their views. We will reflect your position to the Government. This is a survey, not a ballot. It is short and will not take up much of your time. It asks for constructive suggestions and thoughts so that we can do all we can to ensure that the right to jury trial is preserved and that we demonstrate practical steps which would reduce the backlog. You are best placed to help with this. Please, therefore, respond.

The Leveson Review – our view:

Decades of underfunding across the entirety of the criminal justice system is well known and well documented. Cuts to the budget for the MOJ were public knowledge and known by the Government. Whatever media headlines were created, the sad fact is that the criminal justice system was neglected and allowed to crumble and fade into disrepair. People should not ordinarily be made to work in dilapidated buildings, without adequate air or ventilation, where jurors sit in coats and hats in winter or holding fans to try to keep cool in summer. Successful businesses would not have signed contracts with organisations who provide essential services without stringent consequences for their failures to comply.

We work in an environment where access to wifi and technology often fails and causes significant delay and stress. Yet, this is the current reality for staff and users of the court system. For there to be efficiency, the starting point has to be to ensure that buildings are safe and functioning, prisoners arrive on time, interpreters are at court, there are enough magistrates, judges and barristers available to do the cases, and the technology, the photocopier, the toilets, the lifts, the recording and play back systems all work. These are some of the essential and urgent changes that the criminal justice requires before it can even begin to reduce the backlog.

Even with these fundamental problems, the courts function, but only because all of the participants in the system work extremely hard to make the best of these limited resources. Juries make final decisions in 99% of cases. They are proven to be impartial, making decisions based on the collective experience that they bring to the courts. Every agency in the criminal justice system would work more efficiently and quickly if the structure and support was in place for us all to do so. Juries and jury trials are not the problem. The excellent work that juries do should be acknowledged and they must be part of the solution.

The Government decides each year what number of days each Crown Court room can be open and utilised for cases. Opening court rooms costs money and, far too often, that money has been spent on other more politically expedient things. The common mantra is – there are no votes in criminal justice. Alongside chronic underfunding, the same mantra dictates the stance of the Government on criminal justice; to be tough on crime, to increase prison sentences, to create unnecessary, but headline-grabbing, new offences, all to attempt to gain cost-free popularity. We hope for change.

The new Government inherited a crumbling system. One of its first key decisions in September 2024 was to confirm a dramatic reduction in sitting days which then increased the backlog by 4,000 cases in six months. Within weeks of making this decision, the new Government was advised by HMCTS that there were a maximum of 113,000 Crown Court sitting days available. The Government increased sitting days in stages to 110,000, but by then, the damage had been done.

The backlogs of cases in the Crown and Magistrates’ Courts are a national disgrace.  Added together, they amount to almost 400,000 cases and they are rising. Behind each of the cases is a human story.

We fully accept and appreciate that there must be significant change in order to decrease the backlog to manageable figures. We appreciate that the new Government commissioned two reviews. The first is the Gauke Review and it makes serious and considered suggested amendments to the current sentencing regime. It recommends that short custodial sentences are the exception, not the norm, and that many more offenders should be given community disposals. There are currently 12,000 committals for sentence within the current backlog. Increased community orders might reduce the numbers of committals for sentence in the future and the substantial shift to community sentences may also reduce the number of appeals against sentence. This all needs careful consideration.

We agree that something must be done and we appreciate the time and care taken by Sir Brian Leveson in his review.

With respect, however, we do not accept that the only solution is to reduce the role that the public plays in our criminal justice system in deciding whether members of the community have committed crimes, or to increase that role for Judges combined with Magistrates. We do not agree that trial by Judge alone for fraud/complex cases, or by Judge or District Judge and two Magistrates for all either-way offences which have a maximum sentence of three years’ custody or where the likely sentence is three years’ custody is the best solution. We do not consider that an election for trial should amount to no more than agreeing that a Judge at the first hearing in the Crown Court will choose whether a person is tried by a jury or a judge and two magistrates.

We do agree that there are a number of criminal offences where sentences have been inflated. The maximum sentences for those offences are rarely, if ever, imposed. Such offences could remain in the Magistrates’ Court. We would wish to see the underlying data to understand whether such changes, together with the consequences of the Gauke Review would remove the requirement for a CCBD at all.

In our considered response to the consultation, which can be read here drafted by Francis FitzGibbon KC, Jeremy Dein KC and their committee, we suggested affordable remedies to the crisis but made plain that the most urgent task was to find solutions to the backlog with minimal delay, rather than to suggest far-reaching reforms which required significant time, funding and additional legislation. Structural change can only succeed if the people who have to implement the changes agree, accept and believe in them. In this case, the people in question are the criminal Bar and criminal Solicitors.

Our immediate recommendations were:

1. to remove the cap on Crown Court sitting days so that they can operate to capacity (113,000.)
2. Re-open mothballed courts and use other parts of court buildings to increase capacity.
3. Triage cases in the backlog to remove those that can be resolved in the Crown Court or remitted to the Youth Court.
4. Promote engagement between judges and parties to resolve cases.
5. Reform LGFS payments to reward early engagement and advice.
6. Impose appropriate time-limits in court proceedings.
7. Enforce or revise prisoner transport contracts.

To a large extent, these recommendations have been considered, but through the lens of the new proposed CCBD. Sitting days are said to require to be increased over time to 130,000. As a result, additional court rooms are needed. Triage is to occur by Goodyear indications, there is to be an increase in credit for guilty pleas and a pilot scheme to delay PTPH hearings by 12 weeks. Proper funding for professionals in the early stages of cases, and by a new calculation based on complexity markers (as used in the AGFS) for litigators, will reform LGFS payments in a positive way for criminal Solicitors. We welcome the acceptance of many of our recommendations.

The recommendation that we made to impose time-limits in court proceedings has not been considered. Modelling which suggests reductions of 20% in the length of trials in the CCBD has not taken into account this suggestion. It is not clear to us whether the realities of daily life in the Crown Court and the obstacles faced in presenting cases have been included in the modelling.

Our medium-term recommendations were:

1. To end the annual allocation of sitting days.
2. To improve and refine data collection.
3. To reform the pre-trial process, including the PTPH.
4. To reform legal aid payments.
5. To reclassify certain either-way offences.
6. Technological improvements.
7. To reform sentencing procedure
8. To improve conference facilities
9. To restore levels of service in HMCTS to enable appropriate listing and administrative decisions
10. To recruit more legal advisers
11. To apply the efficiency recommendations in the 2015 review.

Most of these recommendations would fall under the category of efficiency. That, we understand, is part two of the review. Our position is that efficiency really should have been at the forefront of things. Without seeing what cost-limited or neutral changes could improve efficiency, reduce the length of delays and trials, it is difficult to see how these radical proposals can be evidentially made or costed.

The volume of receipts to the Crown Court demonstrates that the global number of cases being sent is not that much higher than pre-pandemic figures. Disposals are reducing, hence the backlog increases. Of the cases in the backlog, there are 12,000 committals for sentence, 3,000 appeals and 58,000 Crown Court cases, with a guilty plea rate of 62%. Guilty pleas are entered later in the process for a variety of reasons.

When we are all able to work together, we can make significant change. We have a large number of Resident Judges who, if provided with the resources and staff to open all of their available court rooms all year could work with the professions to make significant inroads into the backlog. The CBA worked with Lord Justice Edis on his successful 12-month pilot scheme to eradicate rape trials which had been waiting for trial for over two years.  Lord Justice Green and the Crown Court Improvement Group are working with all agencies in the criminal justice system to improve efficiency, listing, the sentencing process, and the use of AI. Their work will make positive changes to delays and to efficiency. When issues of bullying, revealed in our CBA Survey were highlighted to the judiciary, they took immediate and valued action to meet with us, allow criminal Barristers to share their experiences at the Resident Judges’ Conference and to consider a collaborative way forward. This all demonstrates that some change can be cost-neutral and significant.

Other changes will cost, but before we spend millions or billions of pounds on a new scheme, we urge the Government to do two things:

1. Open all the court rooms across England and Wales which sit empty every day.
2. Use efficiency processes to significantly reduce the backlog.

Only after this can the Government determine if the CCBD is truly something that is required and necessary. Is it the only solution, or is the solution much simpler? Might we preserve the public’s right to be on a jury and preserve the right of all to have their guilt determined, and for the accounts of complainant’s and witnesses to be heard, not by a Judge, but by a jury? Are the words that all Judges who have presided over jury trials for decades say at the end of a case true? They thank the jury for their public service and often say that trial by jury is the light that shows that freedom lives and how it would be a sad day if Judges had to make these decisions. We agree.

Retention and recruitment of criminal barristers will be as vital under the new scheme, if brought in, as it is under the old. If this system is implemented then it will require a vibrant criminal Bar who believe in the suggested changes. The matched pupillage funding scheme is a welcome proposal as is the clear message that the CCBD would be a branch of the Crown Court and that there will be no reduction in the quality or experience of those appearing within it. Advocates will be required to be members of the criminal Bar or solicitors with Higher Rights of Audience. Nothing less will do. Anything less would inevitably lead to the conclusion that the CCBD was, in fact, a Magistrates’ Court.

Judicial Mentoring Scheme:

If you are over five years’ PQE, are considering applying for a judicial post in the next two years and:

• Are from an ethnic minority background;
• Attended a non-fee paying state school; or
• Were the first generation in your family to attend university

You are eligible to apply to join the Judicial Outreach mentoring scheme.

Full details can be found on the Judicial Careers Portal.

Sad News:

The CBA are sorry to hear of the passing of two of its members; Michael Wolkind KC and Martin Lewis.  The following statements have been prepared by their friends and family.

Michael Wolkind KC:

We are sorry to hear of the  death of Michael Wolkind KC on 12th July. He was called to the Bar in 1976 and took silk in 1999. He was for many years considered one of the most audacious and effective advocates at the criminal Bar. His style was inimitable but inspiring.  In a different era he represented many of London’s biggest crime families as well as David Copeland, the London nail bomber and Tony Martin the Norfolk farmer at his appeal. Tony Martin sent him a Christmas card every year and he kept in touch with and even visited many of his ex clients.

He was for many years at 2 Bedford Row before setting up on his own; many will remember his appearance in Legal Cheek as Britain’s self styled Top Silk (for which there was some competition)

He leaves behind three children and an inexplicable devotion to Barnet Football Club.

His funeral is on Monday 14th July at 2pm at Cheshunt Woodland Burial Site and there will be shiva prayers next week in North London for those who might wish to attend.

Many of you on the SE Circuit and beyond will know his ex wife Kathy Hirst at 15NBS. Feel free to drop her a line at [email protected] for further details.

Martin Lewis:

Castle Chambers are sorry to announce the passing of Martin Lewis.   Martin was called to the Bar in 1978 following a successful career as a solicitor. Martin was predominately a Defence Advocate who worked fearlessly on behalf of his clients. He had a wicked sense of humour, that  often brought a smile to court proceedings. An old school, no nonsense barrister who was driven by a sense of justice. He will be missed by all

CBA Vice Chair:

We, the CBA Officers and Executive Committee congratulate Andrew Thomas KC of Lincoln House Chambers, Manchester on his nomination and uncontested election to Vice Chair of the CBA.

Andrew will assume the role of Vice Chair from 1st September 2025 and Chair from 1st September 2026.

Yours,

Mary Prior KC
Chair, The Criminal Bar Association

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