It is a common misconception that the Crown Court backlog arose during the pandemic. Unfortunately for many prosecutors, defenders and victims, this has been a growing issue for several years before we saw the devastating impact of the virus.
The pandemic acted as a catalyst, taking a fault that was already present within the criminal justice system and causing it to explode into the disaster that we are faced with today. As it currently stands, there are an estimated 59,000 criminal cases currently outstanding within the Crown Courts with a prosecution delay of 708 days until they see the inside of a court.
The backlog
The question is, where did this backlog come from? In 2018, the Government made the decision to cut judge sitting days from 97,400 in 2018/19 to 82,300 in 2019/20, a 15 per cent reduction. This meant that the backlog, which was already growing at the time, could not be dealt with due to many courts not having a judge available. In 2019, it was reported that half of court rooms were empty due to not having a judge available. At this point, the backlog stood at 35,000.
When the Government took the country into the national lockdowns, some effort was made to ease the pressure on the criminal justice system. One of these was the introduction of 20 Nightingale Courts. These new additions were implemented to help tackle the growing backlog while also acting as replacement spaces for existing court rooms that could not accommodate social distancing measures. Unfortunately, 11 of these Nightingale Courts were forced to close once restrictions were lifted, reducing the efforts made to tackle the backlog.
The impact on the public
The impact that these delays are having on those being accused, victims and testifying witnesses is astonishing. For those being accused of committing crimes, being forced to wait 708 days can be agonising. For nearly two years, innocent people are forced to wait until they can clear their name and return to the memory of life before being accused. For those who have committed crimes, being allowed to remain as a member of the public can put other people in danger, something that we want to avoid.
For victims, the mental turmoil of not knowing if the person/persons who committed a crime against you will face consequences for 708 days can have a detrimental impact. Between September 2020 to September 2021, 25,759 of those who contacted police about being raped dropped their case despite a suspect being identified. This equals 40 per cent of victims.
For witnesses, the longer they are forced to wait until they can testify, the less reliable they can become. Over time, memories can fade, and people’s recollections of events can become corrupted. As well as this, after two years, witnesses may decide that they no longer want to testify, resulting in the whole case falling apart.
The combination of issues from each party can result in one devastating outcome: a fundamental distrust in the criminal justice system. If we are unable to serve and protect the public, then this will result in crimes going unreported and criminals gaining further power.
How we can fix it
An immense amount of pressure is being placed on criminal barristers to reduce the backlog without any additional funding or support from the government. Many of us are being forced to undertake long hours to prepare for cases at the last minute and pay extensive travel expenses which we do not get back.
The result of this is that 2,500 barristers are now refusing to take on last-minute cases to cover colleagues who can no longer attend court. No matter the reason, if the presiding barrister can no longer attend, then the case is pushed until the next available date, which could be months away. Although some may say that we are now fuelling the problem, we are doing this to lower our extensive burden and reduce the number of people choosing to leave the profession.
Refusing to take on each other’s cases at the last minute is just a small measure to prevent burnout. This will not reduce the backlog. To tackle the 60,000 cases, the Government must follow the recommendations made by Sir Christopher Bellamy in his independent review of the Criminal Legal Aid. This includes the desperate influx of cash amounting to £135m to fill in the cracks caused by neglect and bringing it on par with the private sector. Unfortunately, the Government has only implemented 40 per cent. The main change made to assist barristers is to increase judge sitting days to 105,000 in 2022/23. Unfortunately, the Government does not have the judges available to provide this and they cannot create more without lowering the number of barristers available to prosecute.
Many barristers had reached their breaking point long before the backlog doubled, and we are working on fumes to keep our criminal justice system functional. The Government is failing to consider the recommendations put forward by experienced barristers and prevent the potential collapse of the criminal justice system. We know what must be done, we are just yet to see it.
Michelle Heeley QC is a criminal barrister and the leader of the Midland Circuit
