David Green
Associate professor and academic manager at The University of Law
David Green, Associate Professor and Academic Manager at The University of Law, examines the Government’s proposed measures to reduce the Crown Court backlog.
The Government has begun a review looking at ways to reduce the Crown Court backlog, including restricting access to jury trials and creating an intermediate court sitting between the Magistrates’ and Crown Courts. What do we know so far and how might the proposals impact the Criminal Justice System?
What’s happening?
It isn’t unreasonable to describe the criminal justice system as one in crisis. At the end of September 2024, the backlog of cases in the Crown Court stood at 73,105, a ten per cent increase on the previous year and an almost doubling since December 2019.
An increased backlog means increased delays. It is an old, but apt, adage that justice delayed is justice denied. Witnesses’ memories fade, complainants lose faith in the system from which they have sought help and defendants languish, lives, jobs and relationships on hold, awaiting trial.
With this background, in December, the Government announced that it had appointed Sir Brian Leveson to carry out an independent review of the criminal courts. The terms of reference of the review look for recommendations for how the criminal courts could be reformed to ensure cases are dealt with proportionately and efficiently.
Specifically, Sir Brian will consider reclassification of offences from triable-either-way to summary only; magistrates’ sentencing powers; and the introduction of an Intermediate Court. It is this last proposal that is arguably the most fundamental.
Although the spotlight of publicity shines most brightly on the Crown Court the same issues exist in the Magistrates’ Court, where every case begins and 95 per cent of cases conclude. By September 2024, the Magistrates’ Court backlog was up 22% on the previous year, to 333,349.
How did we get here?
The new government seems more willing than the last to accept that the seeds of the current situation were sown well before the pandemic. The statistics support this view.
In a swath of closures between 2009 and 2018, the number of Magistrates’ Courts fell from 330 to 160. Over a similar period the number of magistrates fell from 27,785 to 16,129. In 2010 there were 108,536 Crown Court sitting days. In 2019 there were 85,000.
Crown Courts aren’t allowed to sit for as many days as they have capacity because the government caps this number for budgetary reasons.
Despite increasing the cap twice since coming to power, the current cap is 108,500, just short of the 2010 figure.
An intermediate court?
While the review is likely to be far-reaching, the three proposals outlined above all seek to keep cases out of the Crown Court and in the Magistrates’ or an intermediate court. In my view, this misses the obvious point that the Magistrates’ Court has problems of its own – it can’t simply “soak up” the Crown Court backlog.
The idea of an intermediate court isn’t new. Prior to the creation of the Crown Court by the Courts Act 1971, the Quarter Sessions sat above the Magistrates’ Court and beneath the Assizes, presided over by a magistrate sitting with a jury.
The issue raised its head again following the Auld Review 2001. Sir Robin Auld recommended a unified criminal court with three divisions, the middle of which would be overseen by a judge, sitting with two magistrates.
He also recommended abolishing a defendant’s right to elect trial by jury. The changes ultimately failed to gain majority support in parliament.
There surely needs to be a compelling argument, therefore, to turn the clock back over 50 years and have a third attempt at an intermediate court? I have heard no such argument.
In his recent podcast for The University of Law, former Secretary of State for Justice Jack Straw argued in favour of restricting the right to trial by jury: “Rationally, there is no case whatsoever for giving the defendant a right to decide the forum for their [trial], to play the system.”
To say that a defendant electing a Crown Court trial is “playing the system” suggests that they are somehow gaining an unfair advantage simply based on the venue of their trial – that Crown Court juries are unduly soft or perhaps that Magistrates’ Courts are unduly harsh? I don’t subscribe to those views.
I believe that high quality justice is delivered by both courts. In my experience the small number of defendants that elect Crown Court trial do so for a multitude of reasons, but “playing the system” is not one of them.
This leads to the point that, in my view, an intermediate court is unlikely to make a significant difference to the Crown Court backlog in any event. I have found no evidence that a significant cause of the backlog is down to defendants electing Crown Court trial on matters that could otherwise have been dealt with in the Magistrates’ Court.
The simple cause of the backlog is that, for a long time, Crown Courts have been receiving more cases than they have disposed of. Anecdotally, the case mix of prosecutions has changed. There are a greater number of complex trials, like historic sexual offences, that take longer to prepare and try.
What are the alternatives?
Rather than spend years reporting on, legislating for and then creating a whole new stratum of courts, attacking the fundamental right of trial by jury in the process, the Government should instead focus its efforts on making the existing court estate more efficient.
In 2023 the biggest recorded cause of ineffective trials in both Magistrates’ (32%) and Crown (26%) Courts was “court administration”. This is defined as, “Another case over-ran, Judge/magistrate availability, overlisting and equipment/accommodation failure.”
Let’s therefore look at getting all courts operating at full capacity.
Lift the cap on Crown Court sitting days. Repair the leaking roofs, broken heating and failed plumbing that plague the courts estate.
Increase recruitment of District Judges, Deputy District Judges and magistrates. Increase and then maintain legal aid rates to stop solicitors and barristers leaving this practice area.
Invest in the technology needed to have reliable video links in every courtroom for defendants and vulnerable witnesses.
If that is insufficient to bring the rate of completion of cases above the rate of receipt, then let’s replicate the pandemic “Nightingale Courts”, increasing the physical capacity of the estate. Many of the Magistrates’ Courts closed over the last 15 years still stand empty; they could be the first to be brought back in to use.
The obvious criticism of my proposals is that it’s very easy to claim that all problems can be solved by more money. Here, though, there is ample evidence to support them and sometimes, just sometimes, the simplest solutions are the best.
