Monday Message 24.05.21

Independent Criminal Legal Aid Review:

The deadline for responses to the Call for Evidence is this Friday 28th May 2021 and we remind members of the Criminal Bar and Chambers who are yet to submit responses that they can draw on the second Response drawn up by the Bar Council which is being submitted this week on behalf of us all as well as  the CBA Interim Response. It is essential that the Review receives as wide an evidence base as possible, based on the experience of criminal practitioners across the circuits, in order to complete its assessment and to reach sensible conclusions as to the many iniquities of the current system and how to remedy them.

Prison places and court rooms, the cost of delay. The £64 million question:

All too often, we at the Criminal Bar talk about the human cost of delay to all who participate in jury trials whether they be complainants, witnesses or defendants as well as their respective families. When we insist on the need for more criminal court rooms to be opened in order to save the public from misery, the reply received is often founded on the financial burden to the criminal justice system incurred from maintaining extra Nightingale Court rooms.

Last month Justice Minister Chris Philp MP confirmed that 19 of the current batch of 30 leases for Nightingale Court buildings were up for renewal in June. At the time, we gave the same message that we and other criminal justice organisations have been repeating for, in excess of, 14 months. This is that we need, at least, 60 additional court rooms for criminal hearings in addition to a full opening of the existing Crown Court estate if we are serious about lowering the backlog in delayed trials and  reducing an overall case backlog that currently remains, stubbornly, at around 58,000, nearly 20,000 more than the number outstanding pre pandemic. Currently, barely 30 of the 60 Nightingale courtrooms functioning provide additional space for jury trials. On Friday, the Law Society Gazette picked up on local news that, among the current Nightingale Court buildings, Chester Town Hall, Lancaster Town Hall and Birmingham Theatre and Library, which handle both Crown Court cases and magistrates’ cases, are scheduled to cease operations by the end of June. No doubt the Ministry of Justice will save on lease costs from maintaining those buildings while it looks to open a “super-court” in Loughborough later this summer which aims to tackle the backlog of multi-handed criminal cases many of which have been in abeyance for over a year.

Serious underlying human and financial costs arise from a failure to match demand for trial space with the supply of court rooms capable of holding criminal trials. Details on how to measure, at least, part of the financial cost from trial delays can be found in MOJ data available on the prison estate which considers the cost of delays to custodial cases. Contained within the detail of a MOJ Impact Assessment for “Police, Crime, Sentencing and Courts Bill: Changes to release policy for serious offenders”, is the financial cost for every prison place, calculated as “£40,986 per year”. It is worth applying that cost, not merely to the overall prison population, but specifically to the remand population.

As of Friday 21st May 2021, the total prison population was 77,916, down from 82,707 two years ago. The sentenced prisoner population has been falling sharply for nearly a year, whilst the remand population, conversely, has been rising and, today, accounts for nearly one in five of all prisoners.  In the MOJ’s latest quarter analysis, at 31st March 2021 the sentenced prison population was 10% lower than at the same point the year before and at 64,783 represented “the lowest level for 15 years”. Conversely, however, “the total remand population (those held in prison awaiting trial, and those held in prison between trial and sentencing) has increased by 22% over the past year (to 12,262). This is the highest ‘as at 31 March’ remand population figure for ten years.” The increase is greatest amongst those prisoners awaiting trial which, as of the end of March 2021, was 8,308, up 26% in the last year. Earlier this year, data obtained by the charity ‘Fair Trials’ revealed that as of 31st December 2020, 2,551 people had been held in prison awaiting trial for eight months or longer. This points to an ongoing urgent need for more courtrooms.

Given the cost of over £40,000 a year to maintain one prison place, it is not only manifestly unfair but makes no financial sense for, possibly, up to a fifth of those in custody to have to wait a year for trial. A rough estimate is that this amounts to approximately 1,600 remand prisoners. If so, the cost to the taxpayer could be in the region of £64 million per year to keep these suspects locked up waiting for court space to become available for their trials.

In person hearings:

The brakes are being applied to the further expansion of the Crown Court estate at the same time as the return to a default position of in-person hearings for all criminal cases is on the increase. This is not the wisest approach for a long-term sustainable plan aimed at tackling the backlogs without there being a concomitant strategy to add more space to the estate so that hearings can be held and heard safely. Week by week, concerns arise about further waves of infections as the UK opens up its borders and overseas variants of Covid take hold in different regions. Distressed complainants waiting years for trial dates may be too traumatised to try and quantify the financial delays to their trials. Taxpayers, on the other hand, may want to take a different approach to weighing up the £64 million question. This amounts to how the Government could consider it cost effective to spend many millions of pounds keeping remand prisoners locked up for periods of a year and more as opposed to a far smaller sum maintaining Nightingale Courts to ensure more trials are heard and in a timely manner.

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