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25 January 2021

Why the government can’t blame the crisis in our courts on Covid-19 alone

Even before the pandemic, dramatic spending cuts to the Ministry of Justice had made year-long trial delays common.

By Rachel Cunliffe

There is a story the government wants to tell the public about the scandalous state of the British justice system, the backlog of cases and the months or even years people spend waiting for their day in court. It is a story about Covid-19 and the difficulty of conducting trials in the midst of a pandemic. And it is compelling. 

Last week, four justice watchdogs for England and Wales – the chief inspectors for policing, prisons, probation and prosecutions – issued a stark warning: “unprecedented and very serious court backlogs constitute the greatest risk to criminal justice”. Their intervention followed news that the outstanding criminal case backlog is over 457,000, of which about an eighth are crown court cases for the most serious crimes. According to Justin Russell, chief inspector of probation, the “the Covid-19 pandemic has meant severe delays and numerous cancellations throughout 2020, and this has had a negative impact on everyone involved.” 

At first glance, this looks like a grave misfortune, but not one that can be blamed on the government. Administering justice in a Covid-secure way was always going to present major challenges, and a backlog was inevitable, especially after the emergency move to suspend jury trials for nearly two months during the first lockdown. The government’s response to the latest figures was that the Ministry of Justice had acted quickly to implement a “courts recovery programme”, investing in digital technology and establishing 36 “Nightingale court rooms” to boost capacity. 

Framing swift access to justice as just another unavoidable casualty of the pandemic suits the government. It might be sad, frustrating, even ruinous for unfortunate individuals involved, but no one could have foreseen this crisis.  

Except that isn’t the whole story. The reality is that the UK’s justice system was crumbling long before Covid-19 existed. 

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When I interviewed legal professionals on this subject back in June, the word that kept coming up to describe the lengthy delays was “routine”. The lawyers I spoke to were deeply dispirited by the situation but they were also accustomed to it. And while the virus has made a bad situation worse, the idea that the justice system in the pre-Covid era was functioning well is a myth. In their intervention the inspectorates noted that the backlog for crown court cases now exceeds 54,000, but it was already at 37,434 in December 2019 – a two-year high at that time.  

The revelation that some crimes from 2020 will not be heard until 2022 has been covered as though it were news – it isn’t.  A year ago, government figures showed that the average time taken for a crown court case to go from offence to completion was 525 days. That means that defendants, complainants and witnesses have long been forced to put their lives on hold for 17 months or more.  

And at the outset of the pandemic, just days into the UK’s first lockdown, Caroline Goodwin QC, chair of the Criminal Bar Association, was warning that the “criminal justice system can no longer be so shamefully and abusively cut back to the brink of collapse”. So while it might be comforting to dismiss year-long trial delays as a Covid anomaly that will be swiftly corrected once the vaccine rollout is complete, the structural issues that brought the justice system to near breaking point a year ago will persist.  

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Those issues can be traced back to the decision by David Cameron’s government to cut the Ministry of Justice’s (MoJ) budget by 25 per cent as part of its austerity programme. Primarily as a result of those cuts, the pre-Covid justice landscape was one of courtrooms closing across the country, sitting hours being restricted and chronic understaffing. 

That means if the government is serious about addressing the backlog and restoring the justice system to something resembling functionality, it has two choices. The first is sustained investment to reverse the cuts and provide courts with the funding, staff, and buildings they need to run properly. Considering that the MoJ budget for 2019-20 came to a total of £8.05bn, less than a tenth of the cost of the High Speed 2 railway (HS2) and about a third of the allocated budget for Dido Harding’s beleaguered Test and Trace service, speeding up access to justice is cheap by comparison. In fact, court closures are already proving a false economy. Around the corner from Prospero House in Borough, south London, one of the emergency Nightingale courts set up at a combined cost of £10m, sits what was once Blackfriars Crown Court and is currently a film set for a Netflix drama, having been sold to developers in December 2019. One wonders whether it would have been more cost-effective for the MoJ to retain it. 

Sadly, with a chancellor whose obsession with fiscal discipline is already being tried by the daunting cost of the pandemic, the courts system is unlikely to escape further austerity. 

If the supply of justice cannot be increased, the economically literate response is to reduce the demand. This would not mean letting people get away with crimes, but rather thinking more pragmatically about what the criminal justice system should be used for – something for which justice reform advocates have long campaigned

In 2019, England and Wales imprisoned 173 people per 100,000 of the population – the highest level among western European jurisdictions. And as a result of the current backlog, people on remand facing trial – that is, individuals who have been charged but not convicted of a crime – now make up 15 per cent of the prison population. Encouraging a less prison-happy attitude among both police and the Crown Prosecution Service would help reduce the backlog and direct resources towards trying the most serious crimes in a timely manner.  

However, if it is naive to expect Rishi Sunak to loosen spending limits, the idea of the Home Secretary, Priti Patel, who has long advocated tougher sentences, taking a more relaxed view on crime and policing seems outright delusional.  

It looks increasingly likely that the government’s response to the justice crisis will be to pretend it does not exist. When the alarming figures on backlogs and waiting times were released, a spokesperson pointed to a one-off investment of £450m “to boost recovery in the courts and deliver swifter justice”, and said that “Crown Court cases reached pre-pandemic levels last month” – as though the chronic delays exposed in January 2020 were something to be proud of.  

The other risk is that the government may use the pandemic to increase the use of magistrates courts as a cheap alternative to jury trials (which are lengthy and expensive). The Justice Secretary, Robert Buckland, mooted the possibility over the summer, while the Magistrates Association has tweeted that last week’s backlog figures show “why magistrates’ sentencing powers should be extended from six months custody to one year”. 

Again, the trend towards greater use of magistrates courts pre-dates Covid and has long been a concern to legal professionals, who fear the erosion of the Magna Carta-enshrined right to trial by jury. The Covid crisis could provide an excuse for the government to increase the maximum sentences imposable by magistrates and reduce the cost and inconvenience of trying defendants via jury.  

Despite the fierce resistance such a move would attract from across the political spectrum, it is easy to see how cutting costs and corners may look more appealing to the government than boosting investment or looking soft on crime. Patel and Boris Johnson know what is popular among Conservative supporters, and voters rarely ponder the state of our courts unless they have the misfortune to be ensnared in them. 

Yet as long as the government refuses to take responsibility for the justice crisis it has created, the Conservatives have no right to consider themselves the party of law and order.