Justice reform risks targeting the wrong fix

Many years before the COVID-19 pandemic, legal professionals were issuing warnings about how our chronically under-funded, under-resourced justice system was not far from collapse. Five years after that cataclysmic event the backlog in cases has only grown, and not in a way that the pandemic alone can explain.  

Since that time, we have had the latest round of reviews capped by those of Sir Brian Leveson KC, which recommended a whole battery of new measures met with varying degrees of enthusiasm by members of the profession. And now, we have the Lord Chancellor’s proposals.

The government, citing the growing backlog in the criminal system, has produced a series of blueprints for what it calls ‘Swift and Fair Justice’. They contain a range of ideas: some welcome, like the promise to increase sitting days; others distinctly less so. Chief among them, the proposal to restrict the right to trial by jury to only those cases which are likely to receive sentences of more than three years on conviction.

The initial leaked proposals from the Ministry of Justice went far beyond even this, initially seeming to propose that only murder, manslaughter or rape matters should receive jury trials. More troublingly, they appear to have been floated without any consultation with the wider legal profession. 

Jury trials are not responsible for our current backlog - they make up only 1% of the trials in England and Wales. Any attempt to recoup sitting days by removing them, rather than by increasing sitting days, recruiting more Judges and court staff or rebuilding our crumbling court estate (as lawyers have been entreating successive governments to do for years), would be tackling the problem from the wrong end.

There are, of course, other recommendations arising from Leveson’s report that would have a range of beneficial effects not only on the justice system, but on the wider society at whose edges it touches. Diversion from the criminal courts for minor matters and a great emphasis on Out Of Court Resolutions, or increasing credit for early guilty pleas to 40%, could be implemented right now and relieve a considerable portion of the burden. 

Even more so, removing the cap on sitting days, the re-opening of mothballed courts and an urgent review of our prisoner transport system would have a transformative effect on a system that is currently working substantially under its full capacity, and would be welcomed by the professionals who staff it. And yet the government seems determined to press ahead with the most controversial and least substantial component of its changes, come hell or high water.