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Ministers under pressure to fix criminal case backlog in England and Wales

UK politics & policy

Ministers under pressure to fix criminal case backlog in England and Wales

Lawyers and politicians demand action as jury trials are pushed back as far as 2022

The number of outstanding cases in crown courts in England and Wales increased from 39,549 in March to 43,676 by July 26 © FT Montage/Dreamstime

The UK government is facing mounting criticism over its efforts in England and Wales to deal with a backlog of criminal court cases which has caused some jury trials to be scheduled for 2022.

The backlog originates from a government miscalculation of the number of crown court hours needed to deal with criminal cases in 2019, but the issue has been made worse by the coronavirus crisis. Crown courts were closed and jury trials suspended between mid-March and mid-May.

The number of outstanding cases in crown courts in England and Wales increased from 39,549 in early March to 43,676 by July 26, according to HM Courts and Tribunals Service.

The backlog is such that some jury trials have been scheduled for next year or 2022.

Ministers are looking at various ways to reduce the backlog. The government has notably announced 10 so-called Nightingale courts — temporary facilities which hear criminal and civil cases in buildings such as town halls — although only six have opened. One due to open this month will be located in a medieval knight’s chamber in Peterborough cathedral.

But lawyers are warning that the measures are not enough, and have also flagged how many existing crown courts are not being used, possibly because of Covid-19.

Social-distancing restrictions mean that jury trials now have to take place over two or three separate courtrooms linked by video. 

A pilot scheme to see if remote jury trials could be held with participants in different locations © Justice/AVMI

“The failure of the government to pay for and open swiftly sufficient extra buildings to host jury trials since the middle of May, on top of the ongoing empty state of so much of the existing crown court estate . . . means the jury trials backlog is growing exponentially,” said Caroline Goodwin, chair of the Criminal Bar Association, which represents barristers dealing with criminal cases.

Judges and politicians are concerned about the impact of trial delays on victims of crime and defendants, who now face anxious waits for justice.

This month, Judge Keith Raynor, sitting at Woolwich Crown Court in London, released a suspected drug dealer on bail — rather than remand him in prison — because he will not be tried until next year. 

Labour is demanding action from the lord chancellor Robert Buckland. “I am really worried,” said Charlie Falconer, shadow attorney-general. “The lord chancellor needs to get going with this — it’s about finding bigger courts and better use of existing places. If we don't do something as a matter of urgency, it will get worse and worse.”

One contentious idea to cut the criminal case backlog is to curb jury trials.

Mr Buckland said in June he had been looking at proposals to temporarily curtail jury trials for certain offences, which would instead be dealt with by a judge sitting with two lay magistrates. 

Kerry Hudson, president of the London Criminal Courts Solicitors Association, said solicitors ‘can’t work extended hours on top of the extended hours we already work’

But legislation would be needed to facilitate the changes. Bob Neill, chair of the House of Commons justice select committee, said he believed any curbing of jury trials “would struggle” to secure parliamentary approval. “It should be absolutely the last resort,” he added.

Another proposal to reduce the backlog is extending the sitting hours of courts. Last week an extended hours trial began at Liverpool Crown Court, but the proposal is contentious.

While some judges and magistrates are keen to sit longer hours, the proposal faces strong opposition from barristers, particularly those with childcare responsibilities, who said it could prompt them to quit.

One female barrister living in Yorkshire, who is a single parent with two school-age children, said: “If extended hours is rolled out, I will have to rethink my whole career. This would mean zero time with my children.”

Kerry Hudson, president of the London Criminal Courts Solicitors Association, said that solicitors would also struggle. “We can’t work extended hours on top of the extended hours we already work,” she added.

HM Courts and Tribunals said while it was piloting extended court hours in Liverpool “we would not expect legal professionals to work longer”.

“We have worked throughout the pandemic to keep the justice system running, with nearly 80 per cent of crown courts now hearing jury trials and more Nightingale courts opened,” it added.

Many lawyers expressed concern that whatever action the government took, it would struggle to reduce the backlog.

There are also fears that some barristers already demoralised by years of declining legal aid rates for representing defendants, and who have seen a hit to their income because of the pandemic, may simply decide to quit.

A survey in July by the Bar Council, which represents criminal barristers, found that 38 per cent are uncertain whether they will still be practising law in 2021.

The government has insisted all options to reduce the backlog will be considered, and that it wanted to “sweat” the assets of the crown court network.

Suella Braverman, attorney-general for England and Wales, told MPs last month: “We have a very big backlog and we need to take radical steps. Tweaks around the edges will not do.”

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