Monday Message 22.02.21
James Mulholland QC
Planning a Five-Year Budget:
The Budget is due in, barely, a month. The Criminal Bar Association and the public at large expect some long-term planning and concomitant funding to be put in place for the criminal justice system to ensure that a core government duty, overlooked for several years, can be fulfilled: that a state should do its utmost to protect all its citizens from harm. That core duty cuts both ways: to keep people safe from would-be offenders in their homes, on the streets, at schools and to and from the workplace but, to ensure also that the cases of those suspected of criminal offences are dealt with within a reasonable timeframe and without any compromise as to the quality of justice upon which we all rely. For the Budget to have some lasting impact for the criminal justice system and the public at large – which it must be remembered pays for the Budget through taxes – there must be some long-term, joined up planning.
Last November’s spending review covered criminal justice funding for one year ahead for 2021/2022; the financial year starts in just six weeks. The only exception made was a four-year package for prison construction across England and Wales worth £4billion in capital funding. Government proclaimed the biggest investment for a century but only introduced it into the back-end of the criminal justice system. There is little sense putting such eye watering sums aside for prisons over the next few years when there is only short-term funding for the middle-end, the engine room of the system, the court process and no extra funding whatsoever put aside to pay for the publicly funded lawyers whose role is fundamental to whether or not prison becomes a relevant consideration.
After much hard-fought campaigning led by the CBA, the criminal justice system is being given temporary resources to address delays to cases as we emerge carefully and safely from the post pandemic world. Nightingale courts are welcome and the most appropriate, albeit overdue, solution to address delays created by Government funding cuts between 2018-2020 and will help tackle the backlog in the next two years. However, with just over 30 nightingale criminal court rooms due to be up and running by the Spring we are only half-way to fulfilling the 60 extra court rooms needed for criminal work if we are to deal swiftly with delays.
In the longer-term, it is vital that the lessons of the past are learned. We have a charging rate at rock bottom yet serious crime continues to rise. The CBA has made it clear that a five year-plan for criminal justice is urgently required. A key area must be the link between the front-end of the system, prosecutions via the Police and Crown Prosecution Service and criminal court capacity. Last year a locked Crown Court room became the symbol of our failing criminal justice system, with part time judges sitting at home whilst delays increased and police felt compelled to drop serious criminal charges in favour of out of court disposals instead of a court-led prosecution in the public interest.
Restoring Prosecutions, Reopening Courts:
Last week’s official Criminal Justice figures from the Ministry of Justice painted a stark picture of how much more investment is still required into the criminal courts system. Prosecutions for the year to 30th September 2020 fell by 25%. Over those 12 months, out-of-court disposals for crimes increased by 11%, largely driven by a 22% increase in community resolution orders from 105,000 to 129,000, a record high since their introduction in 2015. That trend began six months before the pandemic when politics was preventing Crown Courts from functioning properly and ready-to-go trials from commencing at their allotted times.
Insufficient extra court rooms for trials to go ahead on time has put pressure on the system. Police chiefs have responded by trying to ease that pressure. The National Police Chiefs’ Council (NPCC) has edicts in place not to pursue criminal charges whenever it is appropriate to use out-of-court measures, such as a caution or community resolution.
Community resolutions have their place in a functioning system but alongside, not as an alternative to, criminal prosecutions for serious offences; anything less and public faith in law and order begins to crumble. The only sustainable response to delays in criminal proceedings is to open more court rooms so prosecutions can be dealt with in a timely fashion.
The Spending Review in November 2020 (SR 20) summarised its previously committed spending on Criminal Justice for 2020/2021 as follows:
“over £270 million in 2020-21 to support the recovery of the justice system, including funding to ensure safety in prisons and courts and funding to reduce backlogs in the Crown Court caused by Covid-19.”
As for 2021/22, under SR20 Treasury committed as follows:
“an additional £337 million for the criminal justice system in England and Wales. This includes £275 million to manage the downstream demand impact of 20,000 additional police officers and reduce backlogs in the Crown Court caused by Covid-19.”
This level of investment needs to be repeated for five more years up to March 2027. We need to return to a Criminal Justice System which provides consistency and which dispenses justice for all in a timely manner and with consideration for the many, including the vulnerable, who are impacted by it rather than one which lurches uncertainly onwards with cuts and closures leading to interminable delays and a disregard for all engaged in the process. Justice for complainants, suspects, witnesses and the victims of crime cannot be written off as mere “downstream demand” in the cold numbers-speak of a profit and loss spread sheet. These are human beings with lives irrevocably harmed as justice is delayed. The Budget cannot come soon enough.
Many congratulations to Lucie Wibberley who has been elected as Assistant Secretary from 1st March.
If you have not yet done so, please complete the survey in relation to the Protocol.
Regrettably, we report the loss of another valued member of the Criminal Bar. Franco Tizzano of Farringdon Chambers passed away last Friday after a long illness. He was an excellent advocate and first-rate human being who will be greatly missed. Our thoughts are with his family and friends.