Even before the coronavirus outbreak, tens of thousands of criminal court cases were already waiting in the queue to be heard. Since then, pandemic restrictions on trials have created a bottleneck, with over 50,000 Crown Court cases now standing in need of deliberation.
“We’re seeing ordinary, short cases being listed in 2022,” Amanda Pinto QC, Chair of the Bar Council, told me. “And it matters, because people get disengaged if they think it’s going to be hanging over them for a very long time. None of that is in the interest of justice.”
The wait between an alleged offence and a criminal trial can now last up to four years—which may make it harder for those involved to remember key details of a complicated case. The delay can also prevent people involved in a crime—both victims and alleged perpetrators—from moving on with their lives.
Defendants out on bail can find it difficult to get jobs, start families or study while awaiting trial. They also often face restrictions on their movement. Pinto, who specialises in international financial wrongdoing, said that some of her clients have struggled in the long gap before trial. “There’s a real stress to waiting while it is bubbling in the background. And obviously, the longer you’re in the criminal justice system, the more punitive it is.”
The remand population is currently at over 12,250—its highest in six years. The government recently extended the custody time limit from six to eight months, although it has admitted it did not know how many people had been held beyond that time limit since lockdown. People on remand may end up serving longer than their potential prison sentence before being acquitted at trial, or even plead guilty in order to leave jail quicker.
“People get disengaged if they think it’s going to be hanging over them for a very long time—none of that is in the interest of justice”
“It’s terrible that people are being locked up for longer than they should be,” Pinto said. “Even in ordinary times, a very significant proportion of the prison population have mental health issues. And the longer you’re inside, the more difficult it is to deal with those issues.”
In order to reduce the spread of the virus, prisoners have endured restrictions on their freedom of movement, as well as bans on visits and fewer classes and activities. “It’s very difficult,” Pinto said. “In the first wave of the pandemic, they did an amazing job of keeping Covid out of prison. But they did it at a huge cost to liberty. And obviously that’s going to have a massive impact on people’s mental health, especially the young and vulnerable.”
Although coronavirus has worsened the backlog, the problem began with government cuts over the past decade, Pinto said. Limits were imposed on judges’ sitting days, which left part time judges such as Pinto with almost no opportunities to hear cases. “The government took a deliberate decision to limit funding on justice,” she said. “The courts were lying empty, because judges were not allowed to sit.”
Pinto believes trials were deliberately delayed in order to slow the rate at which people were going to prison, to cut incarceration costs. “It felt as if they’d worked out the number of cases that would end up going to prison,” she said. “And, obviously, that’s a great expense. So what they did was effectively store up the problem.”
She added that the Conservative Party’s 2019 manifesto promise to recruit 20,000 police officers over three years is likely to increase the number of arrests. Unless the prison system receives extra funding, the backlog will only get worse.
Since jury trials were temporarily halted at the beginning of the pandemic, the Ministry of Justice has worked to keep the legal system going, providing 29 additional Nightingale courtrooms, with eight of these temporary venues dedicated to criminal trials. “Strenuous efforts have been made,” Pinto said. “But they are doing the shorter, more straightforward cases—not the ones with several defendants or complicated charges. So the backlog will be harder to shift.”
The £80m criminal courts recovery plan announced in September included provisions to recruit 1,600 new staff to help with the backlog, with extended “Covid operating hours” piloted across the country. But Pinto said this additional funding was not sufficient to effectively dent the backlog—which justice consultancy Crest Advisory has warned could rise to 195,000 by 2024. Whether announcements in the Spending Review, delivered as we sent this report to press, will have true impact remains to be seen.
Is Pinto confident ministers have a grip on the problem? “I think Ministry of Justice ministers know exactly what the problems are,” she said, before hesitating. “I would be hopeful that the Treasury would understand the grave, urgent necessity to deal with the problem. You’ve just got to invest more in the justice system.
“If you can't exercise your rights, what's the point?”
“It’s partly to do with having greater court capacity, but it’s also about using the buildings that you’ve got better,” she added. “Nightingale courts are really a part of the solution. And I do also believe that using technology for remote hearings is part of it.”
During the summer, the government floated the idea of restricting access to jury trials, which are hard to hold due to social distancing requirements.
Pinto is deeply concerned by this suggestion. “Jury trials are a fundamental right, and a way of ensuring confidence in the system,” she said. She pointed to the age difference between young defendants and magistrates—more than half of whom are over 60—as a reason jury trials may be fairer. “The kind of behaviour that [young people] exhibit might be extremely unusual or inexplicable for somebody who’s older. What’s great about a jury is that you’ve got the collective experience of 12 people. You’re very unlikely to have a biased jury.”
The solution to the backlog crisis, she emphasised, lies in considering all data available and working with all parts of the justice system to design the best way forward. And, of course, it requires proper investment in criminal justice.
Justice can receive less attention from politicians and the public than other priorities like education and healthcare— something Pinto finds frustrating. “It’s very difficult to capture the public imagination about why it matters in the same way,” she said. “When it’s dressed up as law and order, most people think, ‘Well, I’m not going to be involved in that—why would I want to put money into it?’ It’s not a vote winner.”
But what people do not realise, she said, is that legal processes have a bearing on freedoms we all take for granted. “Access to justice for everybody means you as a citizen can have rights. But if you can’t exercise them, then what’s the point? We need to be able to ensure that no one is overlooked in the justice system.”
This article features in Prospect's new legal report in partnership with the Bingham Centre for the Rule of Law, Jones Day and the City of London Corporation
