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Monday Message 16.11.20

Chair’s Update:
James Mulholland QC




Money, money, money. These three words are not just the title song of a hit for Abba 44 years ago. However, the opening lyrics will resonate for criminal barristers:

I work all night, I work all day, to pay the bills I have to pay 
Ain’t it sad
And still there never seems to be a single penny left for me
That’s too bad’

The Criminal Legal Aid Review is due to commence before the end of the year, the results of the Spending Review will be published in a few weeks and the spring budget is confirmed for March. It is now time for government to get serious and focus on what is needed both in 2021 and, at least 5 years ahead: money for the Crown Prosecution Service; money for the courts and money for criminal legal aid. Each of these is symbiotically intertwined and each is chronically short of the funding required. The various components of criminal justice can only function as a single system. If that is not understood, the whole system fails. Those that remain at the criminal bar will continue to present their case to the Ministry of Justice and to the general public as to why a lack of resources undermines the proper and fair prosecution and defence of criminal cases but unless and until Treasury understands the damage caused by their withholding of funds, the criminal bar is unlikely either to be able or prepared to provide the glue to hold a fractured system together.  The bar has received no financial support since the pandemic began. Many barristers are still waiting to do their first trial in over eight months and are on the cusp of bankruptcy. Others are either drifting away from the profession exhausted by the constant battle for survival or in a state of perpetual anger as they are expected, simply, to fall into line when others seek to bring proposals such as Extended Operating Hours into effect regardless of their objections whilst requests for basic financial assistance have been repeatedly ignored.

Lord Burnett CJ and his immediate predecessor Lord Thomas are united in their belief that a lack of government funding remains at the heart of the problems the criminal justice system has faced for decades.

In an interview on BBC Radio 4 on 30th October 2020, Lord Thomas said, ““the system’s been chronically underfunded for quite some time…Although each part operates independently it is of course interdependent…One of the delays in the  system is the amount of time it takes the police to investigate crime because there is so much data that we all have which has to be looked at. Secondly you need to make certain that you are giving people proper advice – the criminal legal aid system is grossly underfunded…. This is not only in the interests of defendants…but you must remember that there are victims of crime and complainants in rape crisis whose cases are pushed out and who aren’t able to get their problems resolved….I very much hope that what the Government will do is bring forward urgently  the Royal Commission that it has promised and it will give it a wide remit because it is no use asking someone to look at a system without looking at money. I looked at the Welsh criminal justice system and the rest of the justice system in Wales last year and the absolute guiding hand is money… An independent well-funded legal profession is essential to the way in which we all live and work.”

Addressing the House of Commons Justice select committee last week, Lord Burnett said: “And then there’s the money. This year there is no constraint on sitting days in any jurisdiction. So if we have a court room that we can use and there is a case able to be tried in it we will do so irrespective of whether technically we are running up against sitting day limits, in my view it is absolutely vital that the same approach is adopted next year and I would be very disappointed – a very mild word  – should funding from the Treasury to the MOJ not all for that, because if it does not allow for that, then the danger is that much longer backlogs are baked into the system. So my view for next year in all jurisdictions, is that rather than the traditional view to funding, which is to look at what you have spent this year and nudge it up a bit, or dare I say it occasionally suggested “nudge it down a bit”, there has to be a realistic assessment in every jurisdiction of likely work coming down the system. And in addition there has to be a clear understanding of the additional backlogs we have to clear.”

In April 2020, the Institute for Government published a report into the Criminal Justice System in which it considered the potential impact of the increase in police numbers and the coronavirus on the system. It provided various estimates as to the additional financial investment necessary for it to be able to cope with the numerous problems it was facing.  The Report stated, “[w]ithout subsequent additional spending, there will be bigger case backlogs – and therefore delayed justice – indefinitely”.

It considered that, with the further delays brought about by the virus, up to an additional £110m each year would be needed, simply, to bring the backlog back to 2019 figures within a two-year period.

The amount needed has, almost certainly, substantially increased as the backlog rises and the number of rooms used for trials slows. On Thursday the MOJ provided the latest monthly updates for the Crown Court to the end of September with 49,760 existing criminal cases. The outstanding case load has risen exponentially from 34,887 in September 2019. Any repeat of what Lord Burnett described as the “nudge it down” cost savings policy, will result in even steeper rises to a case backlog that is growing faster by the month. MOJ data confirms the system is creaking under an ever-widening deficit. The pre-Covid January 2020 peak showed 10,049 ‘receipts’ with 9,122 cases completed. In September 2020 there were 10,129 new cases coming into the Crown Court whilst the number completed had dropped to 7,831.

The types of cases populating the system and subject to considerable delay are important. Serious cases dominate. In the five-month period to February 2020, there was a 17% rise in the number of alleged sexual offences in the criminal courts when compared with the same period the previous year and a 19% rise in those involving violence against the person. These are real people, both complainants and defendants, trapped in limbo unable to move on with their lives. All are the victims of a government impervious to their suffering.

The government has pointed to the fact that by the end of October there were more than 250 trial courtrooms available to deal with jury trials. It is hoped that 300 will be ready by January; however, what is available and what is used are very different concepts. As of today, there are still only an estimated 206 rooms with trials actually listed. This is less than the number of courtrooms in use for that purpose in 2019 and which was unable to deal with more than 12,000 effective trials. We now have a trial backlog in excess of 33,000 which the existing estate is going to struggle to address within any timeframe that could be considered humane. The evidence indicates that far more money must be used so that more buildings are opened and then kept open on a long-term basis. As Florence Nightingale’s nursing system ended up as a permanent fixture within the health system, the use of additional court buildings will, inevitably, need to be part of the landscape for the foreseeable future.

As the number of police officers return to 2010 levels and if, as is reasonable, charging rates increase at the same average annual rate by which they decreased since 2010 the Institute for Government assessed that the courts alone would need an additional £225 million a year in actual spending, on top of current funding, to cope with the increase in volume.
If the Home Office is to do anything more than pay lip service to the proposition that punishment should follow crime, Treasury must invest in courts and barristers or we will remain where we are now: delays permanently inbuilt into the system; litigants in person representing themselves in criminal trials leading to the doubling of their lengths and larger numbers of complainants and other witnesses abandoning reported crimes and live cases. Greater numbers of innocent people will be locked up for longer periods. Meanwhile the numbers of sentenced prisoners will continue to fall but they will serve, on average longer sentences, whilst the prosecution lottery continues with increasing numbers of police reported crimes but few actually brought to trial, leaving faith in the criminal justice system further corroded.

There is only one solution. It is money. Provide proper levels of funding for all the institutions within the system, particularly, the bar after a generation of cuts and in order that the criminal courts open and remain so; otherwise government will have shut the door on the very public it claims to protect from harm.

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