Monday Message 15.02.21
James Mulholland QC
The five year-plan for criminal justice had a formal launch last week via our presence before the House of Commons Justice Committee. The select committee states that it “scrutinises the policies and work of the Ministry of Justice”. Last Tuesday was the Committee’s third evidence session in “its enquiries into Court Capacity and the Future of Legal Aid”. On behalf of the Criminal Bar Association, I gave evidence as Chair, alongside Emma Fenn, barrister at Garden Court Chambers. In our testimony, we gave an account of what the CBA believes is needed if we are to make the MOJ’s “Court Recovery Plan” a success in the short term, and, in the longer term, allow for sustainable criminal justice which restores timeliness back into every stage of the system from investigation and charging decisions through to prosecution, defence and court process. As part of the process, a fundamental reappraisal is required of the statistics that have been available to HMCTS and wider policy makers for over a year as it is the MOJ’s own data that places key matters around Crown Court case backlogs into their proper context. Without understanding the information readily available around Crown Court trials, solutions based, solely, on the size of overall case backlogs will result in unnecessary and inappropriate changes which are, at best, unworkable and, at worst, impact negatively upon the quality of the experience for the court user, let alone, the quality of justice delivered.
The Solicitors’ profession was represented by Daniel Bonich Chair of the Criminal Law Solicitors’ Association alongside Hollie Collinge, a solicitor advocate at Kelly’s Solicitors. Together, over a three-hour session, representatives of the CBA and CLSA shared their first-hand experience as criminal lawyers and their combined understanding of the available data, to deal properly with issues related to increasing the capacity of the courts to hear cases and legal aid. All of us had the same important message about the difficulties facing the profession and the need for continued investment to sustain the criminal justice system and those who work within it.
Court Capacity – the CBA view:
Latest criminal courts data shows that the volume of outstanding cases in the Crown Court reached 56,003 by 24th January 2021, up from 54,115 at the end of December 2020. The previous high for outstanding cases over the past 10 years was 55,456 at the end of 2014. At the Select Committee, I emphasised that, whilst the volume of outstanding Crown Court cases is serious, we need to remain calm and not seek impracticable solutions such as EOH Courts or those which undermine the quality of justice delivered by interfering with the jury system itself. The issue is not the size of the backlog but whether there is a system in place ready to ensure such cases can be completed within as short a timeframe as possible once the current lockdown ends. In the past, a substantial backlog, similar to that currently in existence, was evidence of a properly functioning justice system where serious criminality was investigated and then pursued diligently through the courts.
In 2010 the total number of jury trials due to go through the Crown Courts amounted to 58,974. 37,338 of those trials were concluded during that year in that they were either effective with juries sworn and evidence heard, or cracked. The remainder were ineffective or vacated. 18,949 trials took place. The mean average it took an allegation to go through the system to its Crown Court conclusion in that year was 391 days. In 2019, the number of jury trials due to go through the Courts for that year had fallen to an all-time low of 36,733; an inevitable consequence of the lowest ever charging rate – 7.1% of all police recorded crime, down from 15.5% in 2015. During 2019, 20,332 trials were concluded although with only 12,094 being effective; a larger number of trials amounting to 12,659 was vacated. Despite the massive drop in trials, the average time it took for a criminal case to proceed through the system from allegation to conclusion in the Crown Court had increased to 511 days. The reason for this increase was that the Government reduced the number of court sitting days from 110,000 in 2015/16 to 97,400 in 2018/19 and then 82,300 in 2019/20 although a further 3,700 extra days were added during the course of the year. This meant that there were as few as 210-220 courtrooms available to conduct jury trials, a use of only up to 45% of the court estate. During the two-year period from 2018-2020 the amount of money spent on Recorders dropped from £19,046,187 to £9,579,481.
The go-slow was an extraordinary political decision which put cost savings above the interests of ordinary people and brought delay and inevitable suffering to all those involved in trials whether they be complainants, witnesses or defendants. The experience of the court user was forgotten; deemed expendable. However, this Government was fortunate to the extent that it undermined the criminal justice system at a time when trial numbers were at a record low level. Although the volume of criminal cases coming into the Crown Court system has now increased significantly over the past six months, we have, recently, dealt with similar numbers before. In six out of the seven years between 2010 and 2016, the criminal justice system concluded in excess of 30,000 trials – that is, I repeat, a combination of effective and cracked trials – and did so with courtrooms at a lower capacity than is currently envisaged. Even in 2019, when many courtrooms remained locked, access to 210-220 trial courtrooms led to 20,332 trials concluded.
Using 400 Crown court rooms for trials:
Whilst it is important that we proceed with caution and work on the basis that the virus will return, there are currently 293 Crown court rooms available for socially distanced Crown Court jury trials. 70 court rooms are being converted for safe use in large multi-handed trials. However, we have an existing Crown Court estate of approximately 491 courtrooms and further work needs to be done to increase the number of functioning safe court rooms for trials. As of 10th February, we have 17 Nightingale Court rooms being used for criminal work. A further 15 courtrooms for crime will shortly be announced making use of former court buildings and other locations. This is a significant step forward but we need another 30 such court rooms for criminal hearings taking the total extra to, in the region of, 60. If we can reach, close to, 400 useable courtrooms for jury trials by the summer, using a combination of the existing Crown Court estate and Nightingale Court rooms, we will be at levels which will enable us to make inroads into the backlog in under two years. All this depends on sufficient regard being paid to all parts of the system, particularly, the professional court users who keep it running. Ongoing use of CVP will also be essential to ensure administrative hearings are conducted remotely in order to reduce footfall, maximise courtroom space for jury trials and facilitate hearings. Without CVP, there will, almost certainly be, insufficient numbers of lawyers to cope with inevitable increases in caseload.
Criminal Legal Aid was also discussed. The CBA and CLSA made it clear that if the CLAR2 Review fails to bring up to date pay schemes where rates were set by government and, therefore, deemed acceptable in excess of, two decades ago but which have, since, been significantly reduced, then, people will continue to leave and no-one will be left to deal with the backlog. Many criminal lawyers are struggling to make a living wage. We are a disappearing profession. 45% of full practice criminal barristers are 45 years old and over. The average age of a criminal duty solicitor across England and Wales is 47. In excess of 120 criminal solicitors’ firms had collapsed by last summer. All of this undermines basic public access to justice. It is essential that an Independent Payment Review body is established to depoliticise legal aid and to provide a clear structure going forward. We cannot have the same interminable struggle every few years where we are compelled to repeat the same arguments and to justify our existence.
Government needs to introduce a comprehensive five-year plan for a criminal Justice system which has been left to wither for the last decade after swingeing cuts were made throughout every area from the police, CPS, Court staff and estate, Criminal Solicitors and the Criminal Bar to probation and prisons. The public will no longer accept low charging rates whilst serious crime continues to rise. We must have in place a system equipped to deal with greater numbers of criminal cases and which guarantees that all trials are heard on time. More courtrooms and judiciary will need to be in place alongside the required levels of experienced court staff.
HM Inspectorate of Court Administration:
I argued the case before the Committee for a fresh HM Inspectorate of Court Administration. Such a body was created by the Courts Act 2003 with the responsibility of inspecting and reporting on the system that carried on the business of the courts and the quality of the services it provided but, after a government review, it was abolished in 2011. The lack of such a body to review the actions of the various agencies within the criminal justice system has created a serious void. Whilst HMCTS falls under the general gaze of the National Audit Office, the pandemic has highlighted a long-standing need for a much stronger body independently to supervise and report regularly on its conduct. In relation to the CPS, the workings, performance and, arguably, more recently the funding, of the organisation and its leadership have benefitted from the robust supervision of an independent HM Inspectorate whose scope for scrutiny and evaluation reaches wide and runs deep.
During the last 18 months, far too many important decisions have been taken by HMCTS, justified with nothing more than bald assertions and without any underlying evidence published in support on matters ranging from timeliness of trial dates to basic hygiene in the Court estate and safety measures. Those that work within the criminal justice system are entitled to a much more open and transparent approach. Dysfunctionality has also been evident in relation to the interaction of the various groups which, together, comprise the system. HMCTS has responsibility for the safety of the courts but has appeared either unable or unwilling to exercise control over safety issues that arise in the cell areas. The Service asserts that it works closely with the judiciary but the problems surrounding the closure of Bournemouth Crown Court, recently, have demonstrated that this is not always the case. Rarely has the need for structured oversight of the criminal justice system been so clear.