Today’s report by the National Audit Office on the backlog of cases in the Crown Court is unlikely to feature much in the election campaign, but it examines an aspect of criminal justice policy which will need to be addressed very urgently by the next government.
In April last year the Ministry of Justice had a plan: to reduce the backlog from around 60,000 cases to about 53,000 by April 2025. The increasing number of cases waiting to be heard was not only demoralising witnesses, victims and defendants, it was also driving up the prison population as remand prisoners found themselves waiting ever longer to have their cases heard.
Astonishingly, less was spent annually on prisons in 2023 than in 2010. They are more squalid, dangerous and drug-infested than ever
On the face of it a reduction should have been relatively easy. Both the pandemic, and the 2022 barristers’ strike had contributed to its rise, and with neither the virus nor militant barristers to worry about the Ministry – relying on computer models – confidently expected the backlog to fall.
Its confidence was misplaced. It has continued to grow. It stood at 67,500 in December, and according to the NAO it is ‘expected’ to fall, if at all, by only a few thousand over the next 12 months. Recent experience suggests that even that may be overly optimistic.
The knock-on effect on the prisons and police threatens to be catastrophic. As of last week the prison population was 87,915 against a ‘useable operational capacity’ of just 88,987. By this time next year the MoJ predicts a prison population of around 96,000, with no similar increase in capacity. In desperation the government has ordered prisons to release prisoners early, and courts to delay hearings. This has forced police to hold prisoners in wholly unsuitable police cells, which are then not available for arrested suspects. That prospect, in turn, has led the National Police Chiefs Council to ask Police forces to consider ‘pausing’ arrests. Some, notably the Met Commissioner Sir Mark Rowley, have said that they will ignore the request, though what they will do if police station cells are full is unclear.
How have we got into this mess? The report identifies no single cause, so there is no single solution.
Until recently a cap was set on court sitting days, so that courts could not sit even if judges were available and cases needed to be tried. It was a money saving idea, but a very foolish one that contributed to the crisis we see today. At least that policy has now been abandoned, but the effect has not been very dramatic.
The NAO also points to the pressure on the police and CPS to prosecute rape cases, which has led to a remarkable 346 per cent increase in adult rape cases in the Crown Court system since 2019. Rape trials on average take longer than other offences: 15.7 hours against just 3.8 hours for all trials, and defendants are far more reluctant to plead guilty to rape than to other offences. Well-intentioned schemes to assist vulnerable witnesses in sex cases, such as the recording of pre-trial cross-examination, cause havoc with court listing, and lead to delays for other cases.
The main reason, however, is simply the failure over many years to finance the system properly. Astonishingly, less was spent annually on prisons in 2023 than in 2010. They are more squalid, dangerous and drug-infested than ever, and their capacity to absorb yet more remand prisoners that the backlog generates is now almost non-existent.
Inadequate maintenance has led many court buildings to become almost as disgusting and unsafe as the prisons. In 2022 the MoJ estimated that 50 per cent of Crown Court courtrooms were at risk of closure. Leaks and heating failures are not just mundane irritations, they lead to trials being adjourned and courtrooms closed. In January of this year HM Courts & Tribunals Service estimated that the backlog of ‘maintenance and repair issues’ had risen to around £1 billion.
Rats delayed hearings by chewing through cables at Harrow Crown Court, although that soon became irrelevant when the whole building had to be closed indefinitely because it was at risk of collapse. Taunton Crown Court has been closed for months after engineers discovered it was in danger of falling into a nineteenth century well. A roof fire, widely believed to have been caused by an electrical fault, recently put half of Swindon Crown Court out of action for the foreseeable future. After years of inadequate maintenance nobody needs an MoJ computer model to predict that these problems will get worse.
Spending on criminal legal aid was cut by 43 per cent between 2010-11 and 2022-23. Bashing lawyers is politically safe, and in the short term no doubt the cuts did save some money. But the predictable result was that fewer and fewer lawyers were prepared to work in criminal law. Solicitors have abandoned criminal law in their thousands. The number of barristers doing publicly funded criminal work fell by 10 per cent between 2017 and 2022: those that remained then went on strike – a further contributor to the backlog. The modest increase in advocacy fees granted by the Truss administration ensured that some who would otherwise have abandoned criminal law decided to stick with it for a bit longer, but the increase has since been eaten away by inflation.
The haemorrhaging of lawyers from criminal law has had consequences. In 2023 over 1,400 trials had to be adjourned simply because no advocate could be found to prosecute or defend, something that was once virtually unheard of but is now – as the NAO report finds – a significant contributor to the backlog, and a cost to the public purse that was not anticipated when legal aid was being cut. The criminal lawyers that remain are under such relentless pressure that their mistakes are bound to lead to more miscarriages of justice.
With early releases, delays in charging and the packing of unfortunate remand prisoners into police cells and shipping containers, the justice system will probably stagger through to the election without a major catastrophe, whether that is a prison riot or a murderous rampage by a psychopath mistakenly released on a home detention curfew. But the next government will face a monumental task if it is to prevent it collapsing further into chaos.
At the last election the Conservative party manifesto promised a Royal Commission on criminal justice. That might have provided the opportunity to consider some necessary and fundamental changes to the criminal justice system. The promise was broken and every part of the system has continued to deteriorate. At this election we may be sure that candidates will promise longer prison sentences, but there will be no votes in promises of more spending on the courts and prisons. Neither main party has yet shown any sign that it appreciates the scale of the problem, let alone the willingness to tackle it except by short term and panic measures. Whoever wins, the future of criminal justice looks very bleak.
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