Monday Message 23.06.25
The crisis within the criminal justice system extends far beyond the backlogs in the Crown Courts and the lack of sufficient criminal Barristers to prosecute and defend the cases. Long-term savage cuts across the whole of the criminal justice system have impacted on its ability to enable there to be a just and fair trial. The difficulties are wide-spread.
Equality of arms is a fundamental principle of our system. Every person accused of a crime should have access to legal representation and the necessary resources to adequately prepare their case. The current fees available for expert reports and the current system for forensic science are seriously damaging that principle.
We read of miscarriages of justice caused by difficulties with expert witnesses and flawed forensic science.
Expert Witnesses:
It is becoming increasingly difficult to instruct an expert on behalf of the defence in a criminal trial. There are fewer professionals with expertise who are willing to provide reports for the fees that the Legal Aid Agency will pay. Fees are much higher in the Family Court. In addition, experts are walking away from the criminal justice system due to a lack of certainty as to when they will give evidence during a trial. The prosecution has its own budget and can therefore afford to pay more than the defence. In child homicide cases and other areas where there are a limited number of expert witnesses it is proving impossible in some cases to instruct any expert within the UK who is able to consider and challenge the prosecution evidence. Where experts are only willing to be instructed by the prosecution, it is a growing concern that their evidence, whether consciously or subconsciously fails to be impartial. We are all aware of appeals against conviction based on errors in expert evidence.
Forensic Science:
In 2012 the Forensic Science Service was closed and work was then divided between commercial providers and police laboratories. The Parliamentary Group on Miscarriages of Justice has outlined that reckless policy decisions have brought forensic science to a point of crisis. Forensic science is not working for anyone, the courts, the Barristers, and in particular for the members of the public who are caught up in the criminal justice system. The role of police laboratories has increased and inadequate funding for defence experts leads to increasing risks of miscarriages of justice. Another major concern is the loss of DNA samples, CCTV footage, weapons, drugs and mobile phone data. In the period between October 2020 and September 2024, 30,552 prosecution cases, the equivalent of 2% of all prosecutions, were dropped due to missing evidence. This included 70 homicides and 554 sexual offences. The Metropolitan Police had 4.6% of cases dropped due to missing evidence. Further difficulties arise when people seek to appeal their convictions when vital scientific evidence has been lost or not retained.
The development of digital forensics has outpaced the necessary infrastructure to investigate the offences. In addition, a lack of proper investment has caused severe delays in provision of telephone data reports. There was a national backlog in 2022 of over 25,000 devices. There are too few trained digital practitioners in the police forensic units. Vital evidence which might undermine the prosecution case does not arrive in time for a trial. There is a plain inequality because the defence receive digital evidence far too late to adequately examine, analyse and challenge it.
Violence within Young Offender’s Institutions:
Young people aged between 15 and 18 years’ of age, housed in Young Offender’s Institutions, often arrive late at court. These delays can have a significant effect on the time estimates of trials. One in three of the places in which they are housed was deemed unsafe in the latest report by HM Chief Inspector of Prisons, Charlie Taylor. Cookham Wood, Feltham, Werrington, Wetherby and Parc YOIs are dominated by violence and disorder and weak educational provision. The rates of assault across YOIs is 14 times higher than in adult prisons. The Lord Chancellor has now permitted the use of PAVA Spray in three YOIs, Feltham, Werrington and Wetherby for a trial period of twelve months. Thirty seven organisations said that this decision reflected a broader failure of address the longstanding challenges of housing children within the custodial estate.
The claims of its disproportionate use against disabled people and those from minority ethnic backgrounds in adult male prisons have some analytical basis. PAVA spray was used on 800 men. Islamic prisoners made up 18% of the prison population, yet 34% were targeted with PAVA. Black prisoners made up 13% of the prison population but 43% were targeted with PAVA.
The Magistrates’ Court:
For the Crown Court backlog to be reduced, the Government are considering an additional Intermediate Court in which a Judge and two Magistrates would sit. There is already a national shortage of Magistrates and those that remain are required to reduce the significant backlog in the Magistrates’ Court. The number of Magistrates has reduced by 50% since 2012. The number of courts has also halved in the last 20 years. The average delay from the alleged offence to the completion of the trial is now 346 days. For some, it extends to three years. At the end of December 2024 the backlog of Magistrates’ Court cases had risen by 25% in the last two years to 310,000. Ineffective trials have risen to 22%. In 2024, 839 trials were cancelled on the day of the hearing because prisoners were not brought to court on time. More than 700 trials had to be adjourned on the day because there was no interpreter. The hidden costs of volunteering as a Magistrate are making it harder to recruit and retain Magistrates, particularly those from lower socio-economic backgrounds and from underrepresented groups. If Magistrates are to take the place of jurors in a new Intermediate Court, they must reflect the society which they serve.
Emily Dugan of The Sunday Times has written an excellent piece on her experiences of the Swindon Magistrates’ Court which can be read here.
The Legal Aid Agency:
The most recent information provided by the LAA is attached here.
Whilst we appreciate that there have been significant financial difficulties for members over the last two months we are led to understand that things have now improved and fees are being paid. If there are any areas or Chambers experiencing ongoing difficulties please do contact your Circuit Leaders or the CBA and we will forward your difficulty to the LAA. We are grateful to the LAA for their ongoing assistance over the last few weeks.
Sir Andrew Watson:
With sadness and regret we advise you of the passing of Sir Andrew Watson. Andrew was called to the Bar in 1966 by Inner Temple. He was head of 4 Fountain Court Chambers in Birmingham. The chambers merged with Coleridge Chambers to become Citadel Chambers in 2001. Andrew was a Recorder from 1991-2005. He retired in 2010. After his retirement he was a passionate supporter of preserving the countryside of Warwickshire and protecting it from over-development. Our thoughts and prayers are with his wife, Christabel, his family and friends. May he rest in peace.
HH Joan Butler KC:
With deep regret and sadness we advise you of the passing of Joan Butler KC. She was called in 1977. She was made a KC in 1998 and became a Circuit Judge in 2002. She was the designated family Judge for Nottingham between 2003 and 2013 and also sat in the Nottingham Crown Court. She retired in 2017. May she rest in peace. A eulogy will be held at Nottingham Crown Court on the 11th July 2025 at 09:45 in Court One. The CVP link for those wishing to attend remotely will be published on the list.
The Nuffield Foundation:
The Nuffield Foundation funded a report entitled Mapping the Changing Face of Cross-Examination in Criminal Trials in February 2024. As part of their ongoing work, they have been holding a series of workshops, “Language and the Cross-Examination of Vulnerable Witnesses.” The next session is at the Law Society Hall in Chancery Lane on Wednesday, 9th July. For further details, please see here.
Yours,
Mary Prior KC
Chair, The Criminal Bar Association