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Monday Message 29.03.21

Chair’s Update:
James Mulholland QC

Measuring Crown Court recovery: sentenced prisoner population:

This month a series of articles ran across most local papers highlighting what seems to be an increasing use of community resolution orders to dispose of serious police reported crime rather than prosecution through the courts. By way of example, three papers, Bracknell News, Reading Chronicle and Bucks Herald reported, “Ministry of Justice data shows crimes including child sex crimes and other sex offences, drugs trafficking, stalking, robbery, firearms possession, kidnapping and blackmail were handed informally and not taken to court by Thames Valley Police.” The picture was similar across England and Wales from Dorset, Wiltshire and Hampshire, through to Essex, Cambridgeshire, Warwickshire, North Wales, Cheshire and Lancashire. Many of the reports included this data, “[o]f hundreds used for sex offences, two were for cases of child sex exploitation, four for rape and seven for sexual grooming. It is likely that others may relate to sexual contact between children.”

I repeat what the CBA has stated for several years, that we need reassurance that the use of community resolutions for serious offences is not linked to cost-cutting measures; otherwise, victims of crime could perceive such orders as “justice on the cheap.” The public must not feel justice itself is being sold short.

When faced with these legitimate concerns and a detailed breakdown of Community Resolution Orders examined offence by offence across police forces nationwide, an MOJ spokesperson recently replied that, “custody rates for offences which should be tried only in the Crown Court were at their highest in a decade, showing that serious offenders “continue to be pursued vigorously through the courts where they continue to get longer sentences”. This reaction was given just days before the launch of the Police, Crime, Sentencing and Courts Bill.

A closer examination of overall “custody rates” from Government data, however, provides a much clearer and more accurate picture. The sentenced prisoner population, as at 31st December 2020, was down 10% on the previous year to 65,171, “which represents the lowest level for 14 years”. With overall charging rates for all crime down to just over 7%, half that of five years ago, and the significant increase in delays to Crown Court trials, the sentenced prison population has been in freefall since last summer, as fewer people are being tried whilst those who have come to the end of their term continue to be released. At the same time, the numbers awaiting trial on remand or yet to be sentenced are soaring, up 24% in one year, to 12,066. The MOJ reported that, as of 31st December, this was the highest “remand population figure for nine years”.

For “custody rates” to provide any support to claims that the Government is serious about pursuing serious crimes “vigorously” through the courts, the focus must be on the size of the sentenced, not the remand, population. Many of those on remand will be acquitted and for those individuals, their families and the witnesses in their cases, delays to trials are a serious matter. For public faith in the criminal justice system to be taken seriously we have to focus on outcomes. A remand population that is at a decade-high with a sentenced population at its lowest for 14 years, is a sign of a criminal justice system being pushed to the limit. Any justice system based on a custody “rate” that focuses, primarily, on the remand population is one that will be rightly accused of presuming guilt before a fair trial is held and, therefore, one with a fragile grasp of the rule of law.

Appropriate response by HMCTS:

The opening by HMCTS this week of two additional Nightingale Criminal Court rooms in Bolton is the right response to our rising remand prison population and the need remains for more Nightingale Crown Court rooms across England and Wales after Easter. It is also encouraging that, last week, HMCTS confirmed that it has increased the number of courtrooms suitable for jury trials involving multi-handed cases of three or more defendants from 83 in November 2020 to 110 in March. A vigorous pursuit of justice begins with investigating and charging reported crime where appropriate and ensuring that for those serious offences destined for the Crown Court, where a not guilty plea is entered, a jury trial will take place at the earliest possible opportunity. It costs to invest in the police, invest in the CPS, invest in criminal legal aid and to open more and bigger crown court rooms, but justice on the cheap is no justice at all. That fundamental approach to criminal justice needs to be addressed before serious consideration is given to many of the provisions in the Police, Crime, Sentencing and Courts Bill.

Wishing you all a happy, and timely, festive break.

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