Just like London buses, you wait ages for a criminal justice review – and then three come along at once. First came the announcement of a sentencing review, led by former Conservative justice secretary David Gauke. Then there was a homicide review, to be conducted by the Law Commission. Now there will be a review of the criminal courts, with Sir Brian Leveson in charge.
Billed as a ‘once in a generation’ review, the aim is to come up with ‘bold’ ideas to tackle the bulging backlog of trials in Crown Courts across England and Wales. The latest figures show there are over 73,000 outstanding cases, almost double the number five years ago, and the trajectory, officials warn, is for the total to surpass 100,000 within the next five years unless urgent measures are taken to address the delays.
The new government has pulled various levers already. It has increased the number of days judges in Crown Courts can sit this year by 500 to 106,500, – though the judiciary have complained this should have gone further. Ministers have also doubled the maximum prison sentences magistrates can issue – from six to 12 months – in order to divert cases from the Crown Courts. This has freed up around 2,000 sitting days. But it’s clearly not enough.
The new courts minister, Sarah Sackman KC, who was appointed just nine days ago, says even giving courts the resources to operate at full throttle won’t cut it. Some trials have been scheduled for 2027 and 2028. One barrister, who works as a recorder (part-time judge), told me it was an ‘embarrassment’ to be part of a system where people had to wait three or four years for their day in court. The impact on defendants, witnesses and victims is incalculable.
How did we get here? From a devastating combination of budget cuts, policy decisions by the previous administration and the pandemic. Between 2010 and 2017, resources for the criminal justice system were squeezed: lawyers moved away from criminal work, judges’ sitting days were capped and the court estate was allowed to deteriorate. By March 2020, the backlog was growing, but Covid made the problem immeasurably worse, as lockdown and social distancing caused thousands of hearings and trials to be postponed. A strike by barristers in 2022 only added to the hold up. Now, the key underlying issue is the flow of new cases, partly after the rapid and unprecedented police recruitment drive between 2019 and 2023. An extra 20,000 officers were hired, resulting in more arrests and prosecutions, but the infrastructure was never put in place downstream to cope with the demand.
So the call has gone out for Sir Brian. A former Court of Appeal judge, he is best remembered for chairing a landmark inquiry into the culture, ethics and practices of the press following the phone hacking scandal. What’s less well known is that in 2015 he led a major review to find ways of improving the efficiency of criminal proceedings. Many of his 51 recommendations in that report were highly technical, but there was one which provides a clue as to the possible direction of travel he may take now.
Sir Brian was concerned that magistrates were passing too many cases to the Crown Court for trial and advised them to be ‘far more robust’ in the way they applied the guidance on transferring cases. Empowering magistrates to take on more cases is likely to be central to the new review. It will consider if they should be given greater sentencing powers, potentially of up to two years’ imprisonment, which would enable them to hear more cases. It may be that certain offences are re-categorised, which would also allow Magistrates to deal with more cases than at present.
A more controversial option, which is also on the agenda, would be to scrap the right of defendants to opt for trial by jury in so-called ‘either-way’ cases. Each year, thousands of these middle-ranking cases, which can include theft, burglary and drug dealing, end up in the Crown Court. Magistrates could try the cases themselves but under current legislation the accused is able to decide the type of trial they would like. Any attempt to interfere with trial by jury has traditionally been met with fierce resistance, but this is a practice that doesn’t make sense any longer. The former Lord Chief Justice, Lord Thomas of Cwmgiedd, and Alex Chalk, the last Conservative justice secretary, are both in favour of an ‘intermediate’ court, possibly comprising a judge and two magistrates, which would take on these cases, reducing the burden on Crown Courts.
There is no shortage of other ideas. Stephen Parkinson, the Director of Public Prosecutions, believes defence lawyers need to be given financial incentives to advise their clients to plead guilty early, so as to reduce the number of Crown Court hearings. He says the current financial set-up works the other way. For example, a defence solicitor representing someone accused of supplying Class A drugs receives £639 if they plead guilty at a first hearing, but £815 if they do so much later, on the day the trial is due to start. For a barrister it’s £3,370 compared to £6,739.
A separate idea, to encourage defendants to admit their offence, would be to offer them a greater reduction off their sentence. At present, the maximum ‘discount’ is one-third off a sentence. Could it go higher? It’s another possibility for Sir Brian to ponder.
There will be limits on what the former judge can recommend when he reports back next April. He has been told to take the ‘financial context’ into account, which, in plain language, means ‘don’t suggest anything that costs a lot of money’. He will look at whether there is good practice from overseas that could be adopted in Britain, but will be acutely aware that what works well in other legal jurisdictions may not be transferable here. And, although he’ll be able to consider if more cautions and community resolutions should be issued, if this is seen as ‘watering down’ sentencing it may be politically unpalatable.
Nothing should be off the table. Before the 2003 Criminal Justice Bill was passed there were heated debates about relaxing ‘double jeopardy’ laws, so suspects could be tried twice, and allowing evidence of someone’s ‘bad character’ to be heard by a jury. They were seen as seismic changes by some in the legal profession. But the measures were introduced and the world didn’t end; they made a positive difference by re-balancing a legal system that was too skewed towards defendants.
It’s now time for a different sort of re-balancing – to do away with some of the arcane practices and arrangements that are clogging up the courts. Sir Brian’s review has been a while coming, but it should be worth the wait.
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