Monday Message 15.03.21
James Mulholland QC
The cost of tackling delays:
How many Crown Court sitting days does it take to deal justly with delay? This serious question will be addressed this week when the Ministry of Justice and the Treasury agree the final budget for Crown Court sitting days for the upcoming 2021/2 financial year. Evaluating the scale of the budget sits at the heart of what, ultimately, remains a political decision as to what length of time may be considered just for any case to travel through the courts from allegation to its conclusion and when that period of time becomes one of unjust delay to all participants, defendant and complainant alike.
After this week’s tragic events surrounding the death of Sarah Everard, which triggered a wave of concern about wider issues relating to delay within the criminal justice system, the Home Office and Number 10 should be concerned about the message sent to the public by a restriction on any existing Crown Court room to operate to capacity within the existing estate or which fails to plan ahead for the introduction of further Nightingale courts. The number of sitting days needs to be significantly greater than the previous high in the last decade of 109,321 in 2015/16.
The public will expect to see, at least, 120,000 sitting days both for the new financial year 2021/22 and the year after as clear evidence that the MOJ is and remains committed to the reduction of growing backlogs to trials by increasing the number of court rooms. Longer term planning is essential based on an understanding of the risk that the virus may well return over the next couple of years and that we face an inevitable and substantial increase in charging rates during the same period from the current rock bottom figure of 7.1%. We need Government decision making in relation to the criminal justice system which is considered and humane rather than a combination of untutored and impractical solutions, cost cuts and sound bites. A number less than 120,000 and Government will, rightly, stand accused of a smoke and mirrors approach to mounting court delays in relation to those, seemingly, ever fewer police-reported crimes that do result in prosecutions. Working out how we arrive at this number is set out in broad numbers below but using the most up-to-date official data from the MOJ and Treasury.
Matching trial backlogs and Crown Court room capacity to a six- year prison building plan:
Firstly, we must factor into calculations the number of Crown Court rooms needed for both jury trials and the other administrative hearings which make up the overall case backlog, totalling 56,875 as at 21st February 2021 and which now exceeds the 10 year high last recorded at the end of 2015.
Within that total case backlog, the number of outstanding Crown Court trials is estimated to have grown to almost 35,000 based on latest official court data, double the 17,400 trials recorded as outstanding exactly a year ago. For the week ending 1st March 2020, deemed by the MOJ a “pre Covid baseline”, 347 trials concluded, comprising 202 effective and 145 cracked, while 372 trials did not take place that were scheduled to do so, comprising 292 vacated and 80 ineffective. However, as of the week ending 21st February 2021, a total of 143 trials concluded comprising 140 effective and 103 cracked, whereas more than four times that number, 643, did not conclude as scheduled, comprising 579 vacated and 64 ineffective. Whilst a significant mismatch was evident between concluded trials and those postponed in the year before Covid-19, a vastly increased divergence has been a consistent weekly theme since early last autumn.
In December 2020 the MOJ reported that, for the third quarter ending 30th September 2020, the time from receipt of a case in the Crown Court to its completion had increased by 20% year-on-year. For Not Guilty pleas, that delay was broken down as follows “the median duration from receipt to completion at the Crown Court increased by 35% from 223 days in Q3 2019 to 302 days in Q3 2020.”
Even if Government decides quietly that it is acceptable to tread water and maintain those new extended delays in concluding the 35,000 outstanding trials despite the incredible human cost, those trials still require sufficient budgeting for court rooms and judges to ensure they conclude at all. In addition, there needs to be a structured five-year funding increase for Crown Court sitting days to deal with what Treasury said in November would be “downstream pressures” on the courts from the recruitment of 20,000 extra police officers and, as a consequence, a significant increase in prosecutions and, eventually, convictions. That assumption can be read into last November’s Spending Review when Treasury signed off on a £4billion MOJ investment into a six-year prison building programme, to provide 18,000 additional prison places, which, if filled, would be the biggest increase in the prison population in over a generation.
120,000 sitting days:
As part of the Criminal Courts Recovery Plan, HMCTS has assured us that a total of 293 rooms in the existing 491 Crown Court room estate are now capable of hosting jury trials along with the arrival of a total of 31 court rooms for trials via Nightingale Courts. Taking into account the approximate figure of 120 Crown Court rooms now available to deal with non-trial hearings, we should have, by this summer, around 444 court rooms dealing with all hearings including trials. The CBA maintains that we must not stand still. We need another 30 to 40 further temporary court rooms to assist with outstanding trials, bringing the total on stream to between 475 and 485 court rooms with judges presiding over hearings. Assuming the Crown Court can sit for up to 50 weeks in a year, five days a week, that would require around 120,000 Crown Court sitting days for at least the next two financial years of 2021/2 and 2022/3 if the Secretary of State’s own assessment for bringing the backlogs back under control by Spring 2023 is to be taken seriously.
Soft on crime, two tier justice system:
It is time to get serious and ensure a just number of Crown Court sitting days. Setting a budget of 120,000 Crown Court sitting days will send a clear message to the public that this Government takes criminal justice seriously for all its citizens and genuinely aims to structure a return to a justice system of which we can, once again, be proud. If criminal cases fall by the wayside because the courts have been deprived of the resources they need to deal with them, that will rock public trust and risk people taking matters into their own hands. We will end up with a two-tier justice system. Any skimping on the Crown Court sitting days budget and the public will justifiably feel short changed and question whether this Government, whilst tough on cuts, is soft on crime.
Notice to members about public comment relating to live criminal cases:
Members are reminded that the law relating to contempt of court pertains to all ongoing cases and does not differentiate between criminal lawyers and other members of the public. Everyone should restrain from commenting on any such case or contributing to any public discourse which may impede or prejudice the course of justice in those proceedings in any way. Public discourse includes, without limitation, discussion in open forums including seminars, lectures and via all forms of social media platforms or reporting via the regulated publishing media.
Another great loss to the profession:
It is with considerable sadness that I have to report that Jason Dunn-Shaw of the Kent Bar Mess has recently passed away. As Don Ramble put it, Jason was ‘a humane, funny, brilliant, mischievous person and a fearless advocate’. He will be sorely missed.