The National Audit Office (NAO) published a report in October 2021 assessing the Ministry of Justice (MOJ) and Her Majesty’s Courts & Tribunals Service’s (HMCTS) plans for, and progress in, reducing the backlog of cases in the criminal courts. The report identifies that the backlog in cases had been growing in the year leading up to the pandemic, and that the Crown Court backlog looks to be a pervasive issue which will continue beyond 2024.
The report notes that in the year leading up to the pandemic, the Crown Court backlog had increased by 23% due to the lower allocation of sitting days in the Crown Court due to an expectation of decline in new Crown Court cases, which remained the expectation despite an increase in police funding.
The pandemic then caused all jury trials to be suspended between 23 March and 18 May 2020. The Crown Court backlog continued to grow as cases were held up in the magistrates’ courts, where the backlog grew 19% during the first lockdown alone. However, the magistrates’ courts’ backlog peaked in June 2020 and has been recovering since, whereas the Crown Court backlog continued to increase up to June 2021, although at a slower rate since March 2021. Cases waiting for trial account for more than 90% of the increase.
There are various factors affecting delay such that not all areas or cases experience the same delay. London experienced the biggest increase in the backlog in Crown Court cases - and increase of 73% as compared to 18% in the South West. Additionally, sexual offences and offences of robbery and possession of weapons have seen relatively large increases in waiting times, likely due to the likelihood of defendants to plead not guilty in those types of cases.
The report notes that some aspects of the response by HMCTS were successful, such as introducing emergency governance structures and rolling out technology to facilitate remote hearings. There was also an increase in the criminal court capacity by 30% in the Crown Court and 7% in the magistrates’ courts between September 2020 and July 2021 through the use of temporary courtrooms and increasing the use of remote attendance. However criticisms include that the latest models indicate that the Crown Court backlog could be between 17% and 27% higher than the pre-pandemic levels by November 2024, and additionally that the MOJ and HMCTS have a poor understanding of how the pandemic and recovery programme have affected vulnerable and ethnic minority users.
The report highlights with statistics what all practitioners know to be the case – that the courts, particularly the Crown Courts, are overwhelmed, and that defendants who have pleaded not guilty are waiting an unreasonably long time to have their trials heard. The report goes beyond simply stating that financial investment in the system is needed, to pointing out that without a better understanding or assessment of what supports better case quality, any investment will not be good value for money.
However, one of the most worrying aspects of the report is its acknowledgement that the MOJ and HMCTS have limited understanding of how the recovery programme, including remote access to justice, has affected users and outcomes. This mainly focuses on the barriers to access for certain vulnerable groups, but also notes that there has been no meaningful analysis by the MOJ or HMCTS on users’ ethnicity data which was recommended by the Lammy Report in 2017 and as such there cannot be an assessment of how certain groups have been impacted by the pandemic.
The report does not highlight that one such vulnerable group are children and young people who are awaiting trial in the Crown Court. Not only are this group already vulnerable by virtue of their age, and without the protections afforded by the Youth Court, but they may now be waiting over a year to have their trials heard, either in custody, or whilst subject to restrictive bail conditions which may be limiting their ability to attend education, training or employment and also to take part in the normal aspects of life necessary for social development. On top of this, many of those children and young people awaiting trial in the Crown Court will cross a significant age threshold between the date of the commission of the offence and trial, meaning that if they are convicted, they may receive a harsher – in some cases adult - sentence than if their trial had been heard without delay. This is both arbitrary and unfair. The report makes no reference to the fact that their analysis of backlog includes Youth Court cases however it assumed to be the case that they are included with the magistrates’ court statistics. This underlines the extreme importance for practitioners in arguing strongly to keep Youth Court cases in the Youth Court, and applying to sever from adult co-defendants wherever possible given the disproportionately serious impact on sentencing for children and young people whose cases are subject to lengthy delay.
Vivien Cochrane, Partner, Shearman Bowen