Justice delayed
If justice is denied, the judges must speak out
Baroness Newlove, the government’s independent victims’ commissioner, is the latest criminal justice professional to express concern about the justice secretary’s decision to cap the number of cases that the Crown Court in England and Wales will be allowed to hear this year. No cap had been imposed since before the pandemic.
In her annual report yesterday, Newlove said:
I am concerned that chronic and unacceptable delays are becoming ingrained in the system. This year, the Ministry of Justice’s initial target of reducing the backlog to 53,000 by March 2025 proved overly optimistic. They were forced to significantly revise this estimate upwards, with the Crown Court backlog now predicted to remain above 64,000. At the time of writing, the situation has demonstrably worsened, with a record backlog of over 67,000 cases.
On 10 September, justice ministers announced a cap on the number of days judges could sit during this financial year. “We plan to sit more than 105,000 days in the Crown Court,” they told MPs, without explaining that there had been no such limit for the past three years:
A Liberal Democrat MP pointed out that this year’s figure was 2,000 less than the number of sitting days planned for 2023-24. But the minister, Heidi Alexander, said there would still be more capacity in the Crown Court this year than in six of the past seven years. “Everyone can see the state of the public finances,” Alexander added, “and justice is not immune from that.”
After pressure from the judges, the cap has reportedly been increased to 106,500 sitting days this year. But Baroness Carr of Walton-on-the-Hill, the lady chief justice of England and Wales, is said to have told ministers that this is “at least 5,500 fewer than the capacity of the system”.
Newlove told The Times that the courts should be open seven days a week. The backlog was causing victims “real and undue distress” as they faced a wait of months, possibly years, to see justice being done.
Analysis
As Alexander indicated, capping the number of sitting days is to meant to save money. There are two ways in which it might do that.
First, it should reduce the number of part-time judges — recorders — needed in the Crown Court. If they are not sitting they are not paid.
Secondly, it could slow down the rate at which offenders are sent to prison. Reducing the prison population — or, at least, slowing down the increase — should save resources.
But, as you might expect, it’s more complicated than that. The last time there was an artificial cap on sitting days — from 2015 to 2021 — a number of full-time circuit judges were paid to do nothing.
And some defendants are remanded in custody awaiting trial. So increasing their wait saves no money at all. Indeed, it may cost more because some of those defendants would have been acquitted or sentenced to less time in prison than they ended up serving on remand.
More cynically, the longer a trial is delayed the less likely it is to take place. Defendants previously held in prison may be granted bail and abscond. Witnesses may no longer be available. Judges may enforce time limits and order acquittals.
Comment
This is a topic that is little reported and little understood. Ministers are reluctant to say why they are deliberately increasing the already lengthy delays in the criminal justice system. Judges would prefer not to get involved in what they no doubt regard as an unseemly public spat.
In my view, the senior judiciary is under an obligation to explain — on the record — what is going on. Perhaps the sitting cap makes no difference because there are not enough prosecutors or defence lawyers to support a higher throughput of cases. Perhaps delaying trials is a subtle move towards Scandinavian-style prison waiting lists.
But if judges believe that ministers are making it harder for the courts to deliver justice, they should make sure the public knows who is to blame.
Well said, Catherine Edgar, in the sense that- a number of years ago for example- those students to me when I was still a very active criminal defence advocate clearly LOVED what they observed and were absorbed in it, convinced like me that it was a noble strand of legal practice. And yet: then they would tell me, with much regret, that they would have to turn to SAFER, actually REMUNERATIVE fields of law in order to pay their University fees, get married, etcetera,etcetera- rather than take what they viewed as a leap into a void with a disregarded and even maligned aspect of practice. I was disturbed and puzzled by what is effectively the reduction in sitting hours, where it seems like the pantomime horse with two heads pulling in opposite directions. Reduce the backlog ? Absolutely . And so: you reduce the sitting hours? Yes, financially we are as a nation in straitened circumstances, but……? Whose responsibility is it? The government’s. But as Joshua says where is the required workforce of both solicitor and counsel advocates to come from in order to take on more cases. Back to remuneration and appropriate recognition and endorsement of our work?
Roll on a worthwhile review of the reality and viability of this caring and vital facet of a caring profession. As to the sentencing review, then the sooner we get real over those who TRULY NEED to be confined the better. Half the trouble in my view is a species of nimbyism, that is:” Of course, we should reduce the proportions of our fellow citizens in prison, but (for retailers) NOT shoplifters, (for this, for that activity and wrongdoing) NOT for……..” Such exceptionalist approaches threaten to kill any outbreak of reality over overuse of prison STONE DEAD.
As a law student, observing and experiencing the persistent shortcomings of the justice system and its failures, I question why I would want to become a part of it.