In early February, before any inkling of Britain being shut down because of Covid-19, Her Majesty’s Courts and Tribunals Service was already in deep crisis. Relentless cuts to the service – supposedly a cornerstone of the rule of law – had caused delays in hearing criminal cases that took the justice system to the edge of chaos.
Recognising this, the Ministry of Justice (MoJ) announced it would increase the sitting days in crown courts in the first half of 2020-21 by 4,700 to 87,000. The Criminal Bar Association immediately responded that it wasn’t enough; the number of sitting days was still 10,000 fewer than in 2019, and 27,000 fewer than in 2015-16. At the start of the year, again pre-coronavirus, the government admitted that the average crown court case took 525 days from offence to completion, compared with 392 days in 2010.
The result of Covid-19 is that the delays have now stretched beyond 18 months, with some courts now listing cases into early 2022. Social distancing guidance means that only a small proportion of existing courtrooms can accommodate trials. There are discussions between MoJ officials and senior judges about how to contain the problem. It includes opening up to 100 courts that are the judicial equivalent of Nightingale hospitals, and courts sitting six or even seven days a week.
Matters are so desperate that nothing has been ruled out: but any changes that would restrict the right to jury trial or temporarily reduce the number of jurors required – for example to the juries of seven used during the Second World War, would require legislation for which the government has hitherto shown no appetite. Yet because this problem predates Covid-19, and is the result of successive justice secretaries failing to confront the Treasury with the shocking consequences of cutting funding to an essential service on which the stability of society ultimately depends, it will not go away just by addressing the Covid-induced aggravation. The situation will continue to worsen because the government refuses to recognise the grotesque underfunding that created this fiasco.
To begin with, the cut in police numbers by 20,600 since 2010 left forces struggling to process cases that require a crown court trial. It now takes on average 331 days from the date of such an alleged offence to charging someone with it, compared with 205 days in 2010. A further aggravating factor is that, as so many cases involve drugs crime, and rely heavily on forensic evidence from mobile telephone records, it can take a year to analyse such evidence – because there are so few specialists trained to do so. And such evidence is not confined to drugs cases.
But it was the political decision to cut the number of sitting days for courts in order to save money that really fuelled the problem. On one day last August, 127 out of 260 available courtrooms surveyed were idle, including 12 out of 15 at Southwark. During August a total of 25 per cent idle might be expected, but this was almost 50 per cent. Another survey the following December showed that of 729 available courtrooms, 350 were not sitting. Chris Henley QC, who was then chairman of the Criminal Bar Association, said that “there is a deliberate and aggressive squeeze on court capacity by the government to save money. Judges are being told to stay at home or take extra holidays on full pay because so many courtrooms are shut. This is nothing to do with a lack of work.” HMCTS has reduced the days on which it will pay for sitting judges, even though those judges continue to draw a salary and wished to sit rather than do nothing. In 2019, at any one time an average of 17 per cent of courts were idle.
This has a terrible effect on defendants, victims and witnesses. Some of the last were already waiting up to two years to give evidence, which must affect the quality of their testimony even if they gave a full contemporaneous witness statement. Adjournments of cases have reached a record high, with some trials being moved 100 miles to courts that suddenly had the capacity to try them.
Some remand suspects have been released because the custody time limit of 182 days, or six months, has been reached. Sometimes this creates a danger to the public, their alleged victims (many of whom were in any case vulnerable) and possibly to witnesses. When the 182-day limit is reached, the defendant must either be bailed or a court must extend the time limit, but such extensions are governed by strict criteria. In the present crisis it has been generally accepted there are unusual factors that might force such an extension; once the crisis has passed, however, such extensions will start to look like a denial of justice and will become increasingly controversial.
Some criminal courts have recently resumed jury trials, but most have no capacity to try cases with more than one or two defendants. The planned Nightingale-style courts – known as Blackstone courts – can be convened anywhere, but are entirely unsuitable for dangerous or multiple defendants. We await proposals for Blackstone courts capable of trying, in secure conditions, numerous cases where multiple defendants, often young, must be tried together. Even if all existing courtrooms were reopened, and additional Blackstone courts provided, there would remain a shortage of court staff – clerks, ushers, administrative and custody staff, whose numbers were cut with the reduction in sitting days, and any new recruits would have to pass through rigorous security checks as well as needing the skills for the jobs.
The final aggravating factor has been that, during lockdown and the temporary reduction of crime it brought, many police forces have advanced with work on outstanding cases, and are now ready to present these for prosecution – notably in the “county lines” drugs networks. So there will soon be a new surfeit of serious cases to add to the backlog already there.
In recent years the job of justice secretary and lord chancellor – which until 2006 was always done by a qualified lawyer as lord chancellor, with experience of the courts system and the process of justice – has been passed around to a succession of non-lawyers without the slightest clue of the needs of the system. They have been pushovers for a Treasury desperate to save money, even to the extent of thinking it is cheaper to delay cases and have judges sitting around for perhaps a sixth of the year doing nothing.
The present Lord Chancellor and head of the ministry, Robert Buckland, is at least a barrister. He has at his disposal, should he be prepared to use it, a powerful argument to put to his cabinet colleagues and to the Treasury (currently in an attitude of unprecedented largesse) to open up all England and Wales’s courts, get all our judges back working full time, and to bring justice swiftly to defendants and victims alike. Otherwise we shall have a scandal in which delays of nearer three than two years between an offence allegedly being committed and a trial will become commonplace. This would not just be another embarrassment for a government already viewed as highly incompetent. It would cause confidence in the system, already low, to haemorrhage, and with it respect for the rule of law. And what happens then is anyone’s guess.