Criminal courts are creaking. Each day around the country, trials aren’t being held because lawyers can’t be found. "Yesterday in my own chambers we didn't have anyone to prosecute a trial in Northampton,” says criminal barrister Jonathan Dunne. “My clerks had tried 82 sets of chambers and couldn't get anyone."
Dunne has been at the bar for 35 years and has never seen it like this. Noticing that many courts weren’t active in 2019 due to limits on sitting days, he set up an “Idle Courts” Twitter account to document hold-ups. Over the past two years, the account has started to list other shortcomings in the legal system, gaining over 4,000 followers. Many of them are lawyers like him who are worried the system is close to breaking point.
The number of outstanding cases waiting to be heard at crown courts in England and Wales hit 60,692 at the end of June this year, Ministry of Justice figures show. That’s partly due to total court closures during the first lockdown, which delayed 19,000 trials. The government has set up temporary courts and made an extra £250m in funding available, but it doesn’t seem to have made much difference. New justice secretary Dominic Raab said he could not promise the backlog would be reduced immediately, and it would be "six to 12 months" before significant progress was made.
Some fear that things can't go on as they are much longer. “It's almost like another world” says Rebecca Upton, a criminal barrister in Brighton. "I've been practicing for 20 years and I've never seen cases without a prosecutor or a defence, or judges saying, 'I can't see your case for two years because we don't have enough courtrooms.'
“I've dealt with a couple of cases this week where I've been fixing dates where the alleged offences date back to either 2018 or 2019 and the earliest dates are still 2022."
Long delays have an impact on victims, witnesses and the accused, as well as on justice itself. Inevitably, memories get worse. A recent witness in one of Upton’s trials appeared “robotic” and monosyllabic due to poor recall. More troubling is people choosing to withdraw from the process. “One of the cases I've just fixed a date on has been going on so long one of the defendants has died,” Upton says. “In other cases, witnesses simply say ‘it's just taken too long,' or 'we've had too many trial dates that haven't gone ahead.’”
Everyone involved feels a personal toll. "I can't put into words the looks on people's faces, the horror when you tell them how long things are going to take when they've already had to wait so long," Upton says. Backlogs are so bad that it is not uncommon for trials that don't get heard for any reason to be relisted a year later.
Like many others, Upton does not accept that the pandemic is to blame. "The government [wants] to put a spin on it that it's a Covid problem, but that's an absolute nonsense. They want to deny the past ten years have happened.” She says the true cause is austerity, which saw cuts made to legal aid, the police, the Crown Prosecution Service, court and prison estates and probation. “Every arm of the criminal justice system has suffered cuts, which means less people doing their job, and not enough people to do the work that's required.”
Dunne’s colleague in chambers is Anna Soubry, a prominent Tory politician from 2010-19. Soubry has this month returned to the bar, in part to help with the backlog. She has been shocked by what she has seen. “I was in court on Monday for a very serious case. Only one in three counsels turned up, and nobody for the prosecution," she says. "They'd rung 45 sets of chambers and they couldn't find anyone to prosecute."
Soubry is “aware of the irony" of her position as a Tory MP during the austerity years. "We went too far, and we are paying the price," she says. Soubry says she privately warned colleagues of the dangers of cuts during her time in parliament. "I remember conversations with [former justice secretary] Chris Grayling in the tearoom, where I said to him: ‘If you cut the fees for criminal barristers, in five or six years’ time, you will not have people you need at the bar.’ It was bloody obvious, and that's what has happened.”
Another criminal barrister, London-based Joanna Hardy-Susskind, says the profession is not in a good place. "Morale is very low. Criminal barristers have been asked to do too much, with too little, for too long. I currently have over 30 defence briefs open in my diary, each of them serious, all of them requiring hard work. Trying to explain to someone that the worst thing that ever happened to them won't be resolved for many months, or even years, is increasingly difficult to stomach.”
Data from the Criminal Bar Association shows that 89 per cent of criminal barristers are unhappy with their working conditions, and nearly a quarter actively want to leave the profession. Eleven per cent of the profession left between 2017 and 2020. “Many barristers have simply had enough. Some have retired early, some have decided to only accept cases on a part-time basis and others have found work in related areas with more stable hours and better conditions,” Hardy-Susskind says.
Criminal defence solicitor Stephen Davies says despite the perception of lawyers as a well-paid elite, it has become difficult to make the profession work financially. “For legal aid, I don’t bill that case until it concludes. If it takes five years to hear a case, I’m not getting paid anything for five years… I don’t bill until it’s finished. So it’s a cash flow nightmare.”
“We are fed up now,” he says. There has been little increase in pay for years. Legal aid fees have gone down around 40 per cent in real terms over the past decade, and lawyers went on strike over pay in 2019. Some junior barristers often work under the minimum wage per hour for trials. “We are being laughed at by the government.”
Upton says it is hard to get sympathy from the public for lawyers. “They think we are all fat cats [who] represent scumbag criminals, getting guilty people off,” she says. “They don’t understand that fees are relatively small.”
Perhaps most worryingly for the public, the cocktail of problems that have resulted in the backlog has prosecutions plunging to rock bottom lows, says Jo Sidhu QC, chair of the Criminal Bar Association. Charging rates for all police-recorded crime have more than halved, from over 15 per cent in 2016 to 7.5 at the start of this year, according to Home Office figures. Some offences, such as rape, are as much as seven times less likely to be heard in court. A derisory 1.6 per cent of rape cases resulted in a formal charge in 2020, with 64 per cent fewer convictions than four years ago. Around 45 per cent of rape complainants drop out after their case has been reported to police—more than twice the average for all crimes—in part because of delays in the justice system.
There is also collateral damage to access to the bar. After decades of slow progress in transforming the profession from the preserve of a privileged few, poor rates of public pay and working conditions mean it is again attracting largely white men with inherited wealth. “We are already starting to wind back the clock 40 years,” says Sidhu. “Women are leaving the junior criminal bar in disproportionate numbers and their exit is accelerating. We worry also about when, not if, our progress in ensuring that today’s criminal bar reflects the ethnic make-up of wider society will go into reverse.”
Even the usually cautiously spoken former president of the Supreme Court Brenda Hale herself said this week that "the justice system is under enormous pressure," and that it was "not functioning as well as it should in order to give everybody who needs and deserves it access to justice." Coming from her, these are strong words.
But there doesn’t seem much hope on the horizon: lawyers fear that the government hopes the problem will be “solved” by them being made to work more, and weekend court sittings are mooted. But there is unlikely to be the staff to run them. “I can’t tell you how much more work each of us are doing every day,” Dunne says. He already works every night and one day each weekend. “We can’t carry on doing 1.5 people’s work indefinitely.”
