Access to justice: UK court backlog shows system teetering ‘on the edge’

Jennifer Venis, IBA Multimedia JournalistFriday 19 February 2021

A joint report from four criminal justice watchdogs, published in mid-January, has found significant delays plaguing access to justice in England and Wales. The inspectorates for policing, prisons, probation and prosecutions have raised ‘grave concerns’ about long-term damage to the justice system as a whole.

The report follows the revelation that the backlog in the crown courts, which was causing challenges before the pandemic, has been exacerbated by Covid-19 and reached 54,000 unheard cases. Some cases from 2020 may not go before a jury until 2022. The inspectorates also expressed concern for the plight of prisoners locked up for most of the day and disruption to services for young offenders.

‘Having people waiting for a determination of something as serious [as to] affect your liberty is wrong’, says Baroness Helena Kennedy QC, Director of the IBA’s Human Rights Institute. ‘It’s wrong in principle. It is not humane. So there are questions about what is delay that is acceptable and what isn’t.’

It’s fundamental to a properly functioning democracy that we have a fully and properly resourced justice system

Peter Csemiczky
Partner, Hickman & Rose Solicitors

Following the outbreak of Covid-19 in early 2020 and the subsequent national lockdown, the impact on the progression of court work and the challenges of holding jury trials safely in court buildings has meant postponements and cancellations. Courts have been adapted to enable social distancing and remote hearings have been introduced, but the watchdogs warn that the entire justice system is threatened by continuing delays.

In their joint report, the inspectorates call for more funding and direction to agencies. The Bar Council, meanwhile, has asked for more temporary ‘Nightingale’ courts to be created, investment for recruitment and for non-means-tested legal aid to be available for all domestic abuse cases.

In its response to the report, the UK government said that ‘the chief inspectors have recognised the swift and unprecedented work that has kept the justice system moving. These efforts have allowed us to rapidly increase the use of video technology, establish 36 “Nightingale” courtrooms and prioritise urgent cases to protect the public from dangerous criminals, while we were one of the first countries in the world to resume jury trials’.

‘An investment of £450m to boost recovery in the courts is already yielding results in reducing the backlog of court cases’, added the government.

But Peter Csemiczky, a partner in the criminal department at Hickman & Rose Solicitors, highlights that at the beginning of 2020, there were already between 33,000 and 37,000 active cases yet to be heard in the crown courts. While the pandemic has exacerbated the problem, it’s wrong to blame Covid-19 entirely, he says. ‘The true position is that the criminal justice system was already on the edge. Cases were subject to long delays before the pandemic.’

Some lawyers have said they blame past government cuts that closed hundreds of courts and restricted judges’ sitting days for the vast backlog.

In its February-March 2020 edition, Global Insight highlighted that the Ministry of Justice faced the largest budget cuts of any government department in recent years, as part of the decade of austerity measures that slashed public services after the financial crash. The cuts forced the closure of 295 court facilities across England and Wales, and hit legal aid provisions. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 cut the scope of legal aid to save the government £350m per year.

Csemiczky says the overarching reason for the situation is a chronic underfunding of the criminal justice system at all stages and for all participants. He says there needs to be ‘a real and sustained increase of funding of the criminal justice system at all levels’, including for the police, the Crown Prosecution Service, the court system and the Probation Service.

‘It's fundamental to a properly functioning democracy that we have a fully and properly resourced justice system’, Csemiczky adds.

The impact of these delays on the delivery of justice could be substantial – the adage ‘justice delayed is justice denied’ may well ring true.

‘It’s about confidence in the system. If victims and court users lose confidence in the process, the reputation of the system will decline and peoples’ willingness to involve themselves with the criminal justice process will be reduced. Justice will be thwarted’, says Sara Carnegie, Director of the IBA’s Legal Policy and Research Unit.

‘If you know that it takes two or three years before a case comes to court, will you want to be part of that? If you have been the victim of a traumatic crime, would you want that hanging over you for several years? Would you think twice about reporting or being engaged with it in some way?’ she adds.

Carnegie says there are a whole range of issues that arise, including an impact on witness testimony, mental health and the risk of miscarriages of justice. ‘Solutions need to be found in order for people to have clearer expectations of what it will mean to be part of the criminal trial as a victim, as a witness, as a juror’, she adds.

In a statement to Global Insight, the Victims’ Commissioner for England and Wales, Dame Vera Baird QC, wrote: ‘Without urgent and significant action to reduce and eliminate what were already chronic backlogs in cases, the implications for victims and witnesses are severe.’

‘If we are to keep victims from opting out of the criminal justice process, the government urgently needs to increase its support for victims’ services, which are sorely underfunded and now face unprecedented pressures’, continued the statement.

In mid-January, the Law Society of England and Wales expressed concern about the safety of people in courts in light of the new Covid-19 variants. It called for a two-week closure of courts to review safety measures and for video to be the default format for crown and magistrate courts.

Offering a perspective from the family courts, Marcus Dearle, Chair of the IBA Family Law Committee and a partner at Miles Preston & Co, says ‘there have been a lot of delays in the family law arena, where courts are concerned with trying to reduce the large number of disputes going to court over relatively trivial issues that should be resolved outside court’.

He also notes courts face the significant issue of an increased level of domestic violence resulting from lockdowns.

‘However,’ he says, ‘people have adapted well in the circumstances to technology, to hearings being heard remotely. Judges have been getting to grips with technology very effectively’. Dearle says the lesson generally is that technology can be something to embrace.

Carnegie, too, sees advantages to deploying digital processes in the justice system. She highlights video recording of witness testimony, particularly in traumatic cases involving young people or sexual violence, which can be achieved much earlier, with appropriate safeguards in place. ‘The recording can then be played at the trial proper, as long as it’s been accepted by both the defence and the prosecution as accurate, and could save the individual the need to wait for many months and maybe years to give their evidence’, she says.

But for Baroness Kennedy, while having certain hearings virtually is unproblematic, a virtual jury trial is different.

‘There’s something about being in a room with people, being in the same space as people, feeling the energy that there is when people are testifying and being able to calculate from the slightest facial expressions and the pauses that people take and the ways in which people respond’, she says. ‘These things are often small, but very important in the assessments people have to make of truthfulness.’

Header pic: / Willy Barton