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15 February 2023

The criminal justice system is broken, and neither gaffer tape nor the Tories will fix it

The crown courts ended last year with a backlog of 61,737 cases – a figure that “tough on crime” Rishi Sunak can’t ignore.

By Rachel Cunliffe

If you want to understand what has happened to Britain’s justice system, the figure to start with is 525 days. That’s the average amount of time victims of serious crime were being forced to wait for their cases to be heard three years ago, before the World Health Organisation had even come up with the term “Covid-19”. The crown courts in England and Wales ended 2019 with a backlog of 37,434 cases; the latest figures, released this month, show they ended 2022 with a backlog of 61,737. 

It is impossible to put a positive spin on these numbers, but the Justice Secretary, Dominic Raab, did his best. Perhaps in an attempt to deflect attention away from the accusations of bullying that are currently threatening his job (claims he denies), Raab tweeted: “Backlogs in the crown court have fallen by nearly 800 cases in two months now that courts are able to run at full capacity.” He continued: “Our measures to tackle the backlog, like allowing courts to sit for more days, are having an impact.”

Watching a Tory minister try to take credit for increasing sitting days – the number of days that judges “sit” in court each year to hear cases – is interesting, given it was a Tory government, in which Raab served, that cut them in the first place.

For all that the Tories have tried to blame Covid, a 2021 report from the National Audit Office details how, in a perverse cost-cutting drive, the Ministry of Justice allocated 16 per cent fewer court sitting days in 2019-20 than in the previous year. This decision was based on the misplaced assumption that, following a recent decline in crime, the number of cases entering the court system would fall. The result of that mismodelling was a 23 per cent increase in the crown court backlog in the year leading up to the pandemic, which then ballooned as lockdown restrictions forced courts to close. Between 31 March 2020 and 30 June 2021, the crown court backlog rose by 48 per cent. The waiting list is yet to return to pre-pandemic levels.

Staffing shortages make the delays worse. When criminal barristers went on strike last summer, Raab accused them of “holding justice to ransom”. He didn’t mention that their real earnings had fallen by 28 per cent since 2006 (according to the Criminal Bar Council), nor that government-set fees are so low many junior barristers earn below minimum wage. The situation is so acute that lawyers are quitting the bar, and there is also a shortage of crown court judges.

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This doesn’t garner the same panicked headlines as the shortfall of doctors and nurses. But when hundreds of cases are being delayed because there is no one to prosecute or judge them, someone in the government should probably take notice.

Then there are the courts themselves. The crisis has become steadily more apparent as the very buildings in which justice is delivered quietly disintegrate. A survey conducted by the Law Society in December makes colourful reading: lawyers report flooding, broken toilets, faulty air-conditioning units, furniture held together with gaffer tape, not to mention a lack of reliable wi-fi. Two thirds of respondents had experienced delays to cases due to the state of buildings in 2022. It’s a situation so metaphorically on the nose Charles Dickens would have thought it unsubtle: crumbling court houses to symbolise the crumbling justice system. And that’s before you get to the irony that several of the government’s “Nightingale Courts”, hurriedly set up to address the pandemic backlog at a cost of £34m, are located in former court buildings that were closed by Tory governments since 2010 to save money.

[See also: The British justice system is broken – and its new IT system is making things worse]

This is the context to consider as the Tories seek to burnish their “tough on crime” credentials, clinging to their reputation as the party of law and order. When the new deputy party chair, Lee Anderson, argues in favour of the death penalty on the grounds that “nobody has ever committed a crime after being executed” or Rishi Sunak claims to have “tightened up sentencing laws for the most violent criminals”, they should be challenged. Do they think it’s fair to force victims to put their lives on hold for more than a year before their case is heard? And if not, what are they going to do about it?

The answer, tragically, is probably not much anytime soon – this isn’t high on the list of voter (and therefore government) priorities. YouGov’s tracker shows just 13 per cent of people consider crime one of the most important issues facing the country – compared to 67 per cent for the economy and 50 per cent for health. There’s a reason the austerity axe fell so heavily on the Ministry of Justice, cutting its budget by a quarter. Unlike with the NHS, we like to pretend we will never have to engage with the criminal justice system. 

But I wonder if that’s about to change. After all, anyone can be a victim of a crime – or, indeed, accused of one. Recent cases, including the murder of 35-year-old Zara Aleena, whose killer was free to attack her because of probation service failures, have underlined the risk to a society when the justice system malfunctions. The Labour Party has seized on crime; the shadow home secretary, Yvette Cooper, has criticised Tory hypocrisy regarding law and order. This may not be a headline political issue quite yet, but momentum is building.

The latest figures show that our courts system – a cornerstone of any civilised society – is no longer fit for purpose. Broken and dilapidated, it has fallen apart both literally and figuratively. It will take more than gaffer tape to put it back together.

[See also: Dominic Raab’s defenders are wrong – being “tough” doesn’t work]

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This article appears in the 15 Feb 2023 issue of the New Statesman, Why the right is losing everywhere