Dealing with the backlogs in the criminal courts

​What has caused the backlog in the courts and what is being done about it?

Even before the pandemic, there was a backlog in the criminal courts, which has worsened. The National Audit Office (NAO) has now produced a report on reducing that backlog. The NAO is the independent public spending watchdog; they produce reports examining government expenditure to judge whether value for money has been achieved. They also make recommendations to public bodies on how to improve services.

So how bad is it?

‘Dire’ doesn’t cover it.

There has been a 48% increase in the Crown Court backlog between March 2020 and June 2021, with 60,692 cases in that backlog. There has been an increase of 302% in the number of cases that have to wait longer than a year, increasing from 2,830 to 11,379. Due to the delay, there has been an increase of 27% in the number of defendants held on remand.

The Court Service has already spent £63 million on its response to the pandemic and recovery in the criminal courts in the last financial year. It is estimated that the cost of delivering the criminal justice action plan from 2022 to 2024 will be £2.2 billion — the predicted size of the backlog by November 2024 is between 48,000 and 52,000 cases.

Key findings from the report

Along with the above statistics, a key finding was that waiting times varied considerably by region. The most significant increases were in London with a 72% increase compared with 18% in the South West; the West Midlands closely followed London.

Defendants accused of serious sexual offences were said to be more likely to plead not guilty and were acutely affected as not guilty pleas take much longer to complete than guilty pleas. The number of sexual offence trials in the backlog rose by 71%, cases taking longer than a year rose by 435%.

Robbery and possession of weapons cases also saw relatively large increases in waiting times.

Getting round a global pandemic

At the beginning of the pandemic, the Court Service introduced emergency governance structures and rolled out technology to enable remote hearings. Between September 2020 and July 2021, capacity in the Crown Court was increased by 30% with the use of temporary courtrooms, remote hearings and the modification and adaptation of existing court buildings.

What is the forecast?

The latest forecasting model indicated that by November 2024, the court backlog could be between 17 and 27% higher than pre-pandemic levels. The Ministry set out an ambitious approach and a cautious one, leading to the forecast of 48,000 to 52,000 cases in the backlog by 2024.

This forecast is far more positive than an earlier one in April 2021, and there is still a high level of uncertainty about demand and the pace of new police recruitment.

A third scenario was later added to the discussion; this assumed that the funding from the 2020 Spending Review would be maintained and forecast a backlog of 72,000 cases by 2024.

Criticisms within the findings

The NAO found slow progress in collecting and evaluating data on the effects on vulnerable users, despite a series of commitments on supporting vulnerable users.

No evidence was found that there was any data on user ethnicity, so there could be no meaningful analysis on whether ethnic minority groups had been disadvantaged.

As a result, the Ministry could not assure itself that it was meeting the “build back fairer” objective.

The Ministry and the Court Service are not working towards shared objectives for recovery. This means they are less able to make informed strategic choices. An example provided was that the lack of a shared trajectory for reducing the backlog adversely affects the planning and management of prison places.

Long term recovery and the risks

The progress of any long term plan is very much dependent on funding and resources. The criminal justice action plan requires several systemic issues to be resolved, including improved handovers between agencies and how those agencies categorise and record cases.

Along with funding uncertainty, other risks are the availability of judges and the capacity of the criminal justice agencies and support services.

The pandemic worsened existing data challenges, and the Court Service has yet to implement the recommendations of a report into the issues from 2019. There needs to be systematic working with the judiciary to understand how long cases take and investment in analytical capability to resolve data issues.

Moving forward

The report concluded that the Court Service had responded effectively to the pandemic as it unfolded. However, the backlog will remain an issue beyond 2024, which means a continuing and severe effect on victims and defendants.

“If sustainable recovery in criminal courts is to be effective, the Ministry will need to improve its leadership of the system, including by agreeing clear, shared objectives for recovery and significantly improving the quality of its data.”

Recommendations

• agree with criminal justice agencies a shared, published set of objectives for recovery;
• develop a shared understanding of the capability and capacity of other agencies within the criminal justice system;
• identify and obtain data to understand the diversity of user experience; and
• support improvements in the data required for recovery.

How can we help?

Dealing with the issues the court backlogs throws up means that seeking legal representation as soon as possible is imperative to minimise the impact on your case. We help our clients achieve the best possible outcome. Our friendly, experienced team are on hand to fight your corner. Please contact us on 0161 477 1121 or email us for more details.