Criminal courts: tackling a backlog blaze

“Courts will get unlimited funds to reduce record backlog of cases”: this was the headline on 22 April 2021. It was in every paper and news bulletin. Robert Buckland, our esteemed lord chancellor and secretary of state for justice come legal superhero, was flying to the rescue.

With criminal courts now experiencing an unprecedented backlog – which was, of course, caused entirely by the pandemic (for the avoidance of doubt, I am being sarcastic) – the Ministry of Justice (MoJ) stepped in.

Gone was the funding cap on judicial sitting days. From now on, every judge could sit and every available recorder could join them. The subsequent increase in hearing capacity would we were informed, smash the backlog and cure the delays now affecting the system.

Lack of planning

The headline was one every criminal lawyer would welcome. Unfortunately, it was not backed up by detail. Firstly, the mere lifting of the cap on sitting days is less ‘heroically running into a burning building’ and more ‘listlessly aiming a water pistol at a fire the MoJ started’.

Then, there was the question of where all of these judges and recorders would sit, now the cap was off.

A deeper reading of the announcement revealed no deeper planning and most certainly not the massive investment suggested. Would these “unlimited funds”, for example, find their way to the police, to release some of the pressure that has built up as they try to do their job with manpower numbers more suited to the 19^th century, giving them the resources to properly investigate crime?

Would these ”unlimited funds” find their way to the Crown Prosecution Service, to provide them with sufficient resources, whereby reviewing lawyers could take on the workload of five people, rather than the current ten?

Would those “unlimited funds” find their way to legal aid defence solicitors, driven to the verge of bankruptcy by cuts to state funding; and what can be charitably referred to as the gamesmanship of the Legal Aid Agency and then accelerated beyond that verge by the lockdowns?

Would those “unlimited funds” find their way to the criminal bar, to pay juniors a living wage and stem the exodus of talent to other disciplines and professions?

The answer to all of these questions is ‘no’. The announcement was no rescue; it was a public relations put-up job, and another example of a government that deals in headlines instead of action.

The reality, then, is depressingly familiar. But for once, an issue that bothers the legal profession has finally caught public attention. Why else was the misleading headline necessary?

The Crown Court backlog and the delays it has caused are visible symptoms of the degradation of our criminal justice system. The noise made by professional leaders, the circuits and, perhaps most loudly, by the likes of The Secret Barrister and other legal commentators, had been heard.

It was most likely the bad publicity from these news reports and disquiet shared on social media that spurred the justice secretary into his inadequate version of ‘action’.

Justice denied

For once, the man’s finger was on the pulse, because while these court delays  matter to us, they also matter to the public. And well they should, because while the old adage ‘justice delayed is denied’ might be a cliche, it is borne in truth.

We all know the reality of the delays. We know the desperate and dishonest attempts by this government to attribute the backlog to covid-19 are exactly that. We know what caused the Crown Court backlogs – up to approximately 57,000 at the time of writing, but already approximately 40,000 before any one of us had heard the word ‘coronavirus’ – and we all know that, ultimately, it comes down to systemic underfunding.

No politician ever lost a vote by taking a pound note out of a lawyer’s pocket and sadly, the same is true of policies detrimental to those accused of crime. This is why the court system has been targeted for starvation by successive governments.

But this announcement was stunningly short-sighted. The time was always going to come when these cuts started to affect others. We neither live nor work in a vacuum and so (to use a metaphor close to home right now) what affects those of us who apparently don’t matter will, in the end, spread like a virus.

This is why we are where we are today. We are often reminded how the delays affect the public’s faith in criminal justice. Even the majority who are not touched by the system are sufficiently outraged that the justice secretary issues lip-service with empty announcements to placate them.

Promises to, for example, “clear the backlog by Easter 2023” – an undertaking which I, having just fixed a trial in a serious case for January 2023, know is entirely untenable.

But what about those who do not work within the system and who take these empty assurances at their word? What about those complainants, witnesses, experts and defendants who are unknowingly caught up in the backlog and who will be exposed to the reality of what we dare to call ‘justice’? What are their thoughts?

I have asked many of them. And not just for this article; more out of morbid fascination. The answers I received  in recent years can be summarised in a single word: despair.

Successive governments have turned the desecration of a once world class system into an art form and have taken something which is, by its very nature, stressful and miserable and frightening, and  somehow made it worse.

Trusted no more

When I defended my first trials years ago, it was not an experience any member of the public relished. No one wants to be cross-examined or challenged in a room full of lawyers.

No one wants to put their fate in the hands of 12 strangers. And yet they trusted the system. Except in exceptional circumstances, when a witness came to court, they knew they would give evidence that day, related to something relatively recent.  

These days, the chances of a trial going ahead are often minimal. In a blatant manipulation of the boxes they need to tick, Crown Court list offices fill their daily lists with floating trials that require everyone to attend but which have next to no chance of being given a court. And when these cases do get a court, there is every chance those involved will be questioned about an event that occurred as long ago as three years earlier, due to delays in investigation, charging and obtaining a trial fixture.

No one working in the system wants this. It is depressing how it affects the public’s perception of our work, to see how it makes them look at us and to see just how many of them are withdrawing their support for prosecutions entirely, on the basis the time it takes is just not worth it.

Things do not need to be this way. We know this because it was not always this way. Our criminal justice system was never perfect but it was significantly better than it is today. We know the cause and no amount of empty MoJ announcements will convince us otherwise.

Tony Wyatt, Associate Counsel at Ewing Law and best-selling crime author under the pseudonym Tony Kent