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Monday Message 23.11.20

Chair’s Update:
James Mulholland QC




“That is a political choice.”  So, Lord Burnett CJ concluded, part way, through his address to the Bar Council conference last week. The five-word sentence sat in a single sentence paragraph. The conclusion followed his assessment of how to calculate the monetary requirements of the criminal justice system for the next two years: “the correct way to determine the financial needs for 2021 to 2022 is to look carefully at the anticipated volumes of work coming into the system, coupled with the accumulating backlogs as a result of Covid, and then make financial provision with that in mind. There must be sufficient resources to enable the courts and tribunals to work to full capacity, having regard to all capacity factors, otherwise backlogs will not be tackled.” 

Our most senior judge could not have been clearer. He knows the evidence. Government knows it too. The volumes in the system, both current and anticipated, are rising. The Crown Court case backlogs were high pre-Covid due to funding cuts and are now overflowing. The implication is that, were the decision in the hands of the judiciary, then the judiciary would fully fund the system. However, the decision lies elsewhere. It is one for the politicians to make. The Lord Chief Justice has made it as simple as possible. He has given directions for government to follow. Government has made the wrong decisions before; now Treasury has an opportunity to make amends.

In response to a Parliamentary question last week, Chris Philp MP, Parliamentary Under-Secretary of State for the Home Department provided statistics for the amount spent on recorder sitting days over the last five years.  They gave an indication of the swingeing cuts imposed on the courts over two successive financial years from March 2018 to March 2020; a period when the pandemic had nothing to do with the ability of courts to remain open and judges to sit. They reveal a drop of almost 50% in the funding of the part-time judges upon whom the criminal justice system relies; yet, many were left idle and useable courtrooms deliberately kept shut, whilst the case backlog grew. Between March 2018 and March 2019, the “spend on recorders” as Mr Philp disclosed, dropped from £19,046,187 to £14,918,592. Between March 2019 and March 2020, it fell again to £9,579,481. This cut contributed to the dramatic increase in the case backlog.

In March 2019, the Criminal Bar warned government of the inevitable consequences if recorders were not permitted to sit. Government had a choice to listen and to act. It failed to do either. When confronted, it focussed on the fact that the backlog had previously been higher. However, it failed to recognise that this was a backlog created with the lowest ever number of cases charged and one which introduced greater delays to trials than had ever been seen before in our society. All this happened long before the term ‘Covid’ was first used.

The full disclosure, at last, by a government minister to parliament, of the 50% cut to the use of recorders, is an important reminder as to why the backlog had risen 25% to around 40,000 by the end of March 2020.
These cuts have had a greater impact than, simply, reducing the number of usable courtrooms. Whilst re-opening these rooms and replacing those that have been sold off is a necessary pre-requisite, addressing capacity has never just been about physical space but also about personnel.

Individuals are essential to the trial process. Lord Burnett stated as such last week: “[w]hen people talk of capacity in the courts, their focus is often on the capacity of courtrooms in which hearings can take place. That is an important aspect of the concept of capacity, but it is not the only one. There are at least four others. First, the capacity of the courts in every jurisdiction to transact business depends upon the availability of judges and magistrates. Secondly, capacity depends upon sufficient HMCTS staff to support hearings for which there is physical and judicial capacity. Thirdly, capacity in each jurisdiction depends upon the ability of the major external players to support the hearings. Fourthly, capacity depends upon sufficient financial resources being made available by Her Majesty’s Treasury through the Ministry of Justice to the courts”.

However, replacing staff who have lost their jobs or lawyers who have been forced to leave the profession as a result of massive cuts will take far longer than the time it took for them to depart.
Significant reductions to full time court staff accompanied the restriction on sitting days. Many were replaced with temporary employees. As of March 2019, 14.2% of staff were agency workers, an increase of 6% in three years. Inevitably, the loss of knowledgeable and experienced individuals had a substantial effect on the smooth running of cases and reduced morale amongst those that remained.

The Lord Chancellor has recently been given permission to recruit 1,600 additional court staff but this has proven extremely difficult. The reason for this, almost inevitably, rests with a system which is massively underfunded in all areas and which does not treat those who work within it with respect. The pressures are significant and the rates of pay low. There is no security of tenure bearing in mind the previous cuts and many of the courts in which staff work remain in significant disrepair. An example can be found at the Central Criminal Court where three of its six public lifts have been out of action throughout the pandemic and when only one person at a time is permitted in any lift.

The Government has also forgotten those who represent both prosecution and defence in our adversarial system. Despite 30-40% cuts in real terms to the rates of remuneration over the last decade or so and despite the fact that criminal barristers have suffered a massive drop in income over the last eight months, we still await the Criminal Legal Aid Review. This was announced by the Ministry of Justice in December 2018 but, as yet, we still do not have a firm date for its commencement.  It is an irony that one of the foundation stones upon which the Review will build is that the publicly funded criminal bar is significantly under-remunerated for the work it does and that retention is a major problem yet the extraordinary delays to the setting up of the Review have contributed to those concerns and exacerbated the situation. Even if it was to report in summer 2021, which appears unlikely, criminal barristers would have waited 2 ½ years for findings that were, in every sense, urgent. These are the individuals whom government expects to pick up the pieces and yet the actions of Treasury are actively encouraging them to leave the profession. There is no longer time to put off key decisions as to investment for the bar; otherwise, the backlog will continue for years. Were HMCTS able to open the full estate of 490 courtrooms, there would, almost certainly, now be insufficient barristers or recorders to deal with the volume of cases. The Government’s plans to reduce the backlog in the short term are based on a false assumption.

The criminal barristers upon whom government relies to prosecute and defend are leaving because they have no choice: they are unable to pay their household bills or make their tax payments.  Government does have a choice and it is a political one: spend and ensure that justice is done; or don’t spend or worse, cut again, and risk a state of anarchy.

Lord Burnett is not the first to make it plain that political decisions on funding have had a significant impact upon the ability of the courts to deal with criminal cases in a timely manner.  In a letter to the Bar Council in summer 2019 Lady Justice Macur, then Senior Presiding Judge for England and Wales, said: “The decision not to reduce the backlog was a political decision.” The backlog has risen from a rate of 1,000 cases a month when that statement was made to a rate of 2,000 cases a month for the last six months. It will continue to increase for the foreseeable future. As Lord Burnett put it, “There has been much reporting on the reduction in some types of crime during the initial lockdown. But during that period, the police were not idle. They were able to follow up intelligence leads and concentrate on gangs and organised crime. The mix of Crime coming into the system as a result of all of that activity is likely be more complex and time-consuming. It is a mistake to look only at the number of cases outstanding without trying to understand the nature of the mix of those cases. Volumes of crime rose again after the end of lockdown. Add to that the well-publicised planned increase in the number of police officers and the recruitment by the Crown Prosecution Service of hundreds of lawyers and one can see that the magistrates’ and Crown courts are likely to be dealing with substantially increased volumes of work in the next year and beyond, quite apart from the additional backlog built up during Covid.”

The criminal justice system is now synonymous with egregious neglect and delay; so too is the approach of government with a failure to address, or even, to understand the basic needs of those who work within that system. It is time for Treasury to listen and then to take action. If it fails to heed the words of the Lord Chief Justice or to acknowledge the weekly evidence showing the direct causal link between lack of funding and delay, then there is little hope for the future. Government has put cost savings above people’s lives in the past; it cannot afford to do so again.

CBA Bursary:
Applications are still invited for awards from the Bursary Fund. The competition is open to CBA members under 7 years call until Monday 7th December and focusses, primarily, on those from financially disadvantaged backgrounds. Please see our website for more information.

Bar Benevolent Association:
The BBA has recently announced that it still has money available for those in financial difficulties, particularly, as a consequence of the pandemic. The Association is there to provide assistance for barristers. Please do not suffer in silence.

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