Trying the judges’ patience

People shouldn’t have to wear bobble hats in court, says chief justice

We have enough courtrooms to hear jury trials in England and Wales and enough money to pay for them, the lord chief justice told MPs yesterday. What we don’t have, Lord Burnett of Maldon added, is enough judges.

He was doing all he could. More High Court judges would be sitting in the Crown court. Retired circuit judges were being encouraged to return. And recorders — lawyers who sit part-time as judges — were being asked to sit more often.

I can confirm this. The other day, a recorder told me he was getting constant phone calls asking if he was free the following Monday to hear a four-week case. He told the court staff that he had recently taken on a very senior — and very public — position that made it impossible for him to sit in the Crown court. Please make a note of that, he pleaded, not for the first time.

Burnett was giving oral evidence to the Commons justice committee. He was on good form, despite a heavy cold. So was the committee. Maria Eagle MP noted that the backlog of jury cases awaiting trial was more than 60,000. She quoted an answer to an MP’s question last week from James Cartlidge, a justice minister:

I am pleased to say that the spending review provides an extra £477 million for the criminal justice system, which will allow us to reduce Crown court backlogs caused by the pandemic from 60,000 today to an estimated 53,000 by March 2025.

“A fall of 7,000 in that time doesn’t sound like an enormous hit in tackling that backlog,” observed Eagle.

“Well, I agree,” replied Burnett. His comment was left to hang in the air.

Eagle had been a justice minister during the last Labour government. A Conservative member of the committee, Paul Maynard MP, had briefly been a justice minister in 2019. Noting that Burnett had already told the committee about the poor conditions in many court buildings, Maynard asked the chief justice whether that made it harder for the courts and tribunals service to reduce the backlog.

Burnett confirmed that this was one of the factors that inhibited judicial recruitment. It also had a direct effect on court capacity:

When the ceiling falls down in a court, as it does from time to time, that court is out of action for some time. Every winter, we lose hearings because the heating is broken. There is a limit to how much you can expect people to sit in court in coats and bobble hats and gloves.

And in the summer we have the reverse problem. In many of our buildings, the cooling systems break down and they become intolerable. Every year we have lifts breaking down, which take ages to repair. That means courts can’t be used.

It was not reasonable to expect staff, public, lawyers and judges to endure conditions that were “simply intolerable”, Burnett told the former minister.

Maynard responded with a striking observation:

You mentioned that this was not a universal situation, that there were courts of a good standard. I’ve yet to see one — but I’ll take your word for it.

He then asked about the effect on court throughput. But Burnett had not forgotten his old advocacy skills:

To hear a former parliamentary under-secretary of state from the Ministry of Justice say he’s never seen a court in good condition is…

“It may just have been where they were taking me on my visits,” Maynard interjected. “Maybe they wanted to get more money out of me.”

Burnett has done just over four years as chief justice and demonstrated total mastery of his brief. The contrast with ministers — who until recently had deliberately reduced the number of days the courts were allowed to sit, precipitating the current shortage of criminal lawyers and specialist judges — was left unspoken.

He was thoughtful about long-term reforms to criminal justice — “Covid has taught us that our system is more fragile than we had thought” — and he suggested it might be time for another review like the one by Sir Robin Auld, which recommended controversial jury reforms 20 years ago.

On allowing witnesses to pre-record their evidence in sexual assault cases, the chief justice said it was important to tread cautiously and wait for the evidence. There was a risk that defendants were less likely to be convicted by juries who did not hear live witnesses.

And he disclosed the protection that was being offered to family judges, who often sat in small courtrooms with nobody else present but a warring couple. Some parents couldn’t approach their difficulties rationally, he explained, and they saw the judge as part of the problem. Protocols had been agreed with the police, he said. Arrangements had been made with social media companies to take down inappropriate postings. And courts were now granting injunctions against parties to protect judges.

When Burnett mentioned low morale among the judges, he was clearly not referring to himself. But being appointed chief justice is not meant to be a life sentence, even for someone who is still only 63. With good behaviour, the guidelines suggest a term of about five years. But if Burnett decides to hang up his wig next year or the year after, he’ll still have served longer than any lord chancellor, for example, appointed since 2003. And he’ll be a hard act to follow.

Update 20 November: there is now a transcript of the session.

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