The criminal justice system (CJS) has been critically underfunded and subjected to a serious erosion of resources for years. So, when the Covid-19 pandemic struck, it worsened the already fragmented nature of the system.
With the nationwide lockdown placing restrictions on its functionality, the government has scrambled to find solutions, seemingly to no avail. The rollout of “Nightingale Courts” has been slow, with too few courts to deal with the extreme case backlog. Meanwhile, the proposal of “war-time” juries has been called ill-advised and not sensible.
The recent justice inspectorates report on the impact of the pandemic has made it clear that the CJS is at a tipping point and in need of urgent and significant action. But is this government capable of delivering?
On 19 January, the four criminal justice inspectors for policing, prisons, probation and prosecutions published a joint report into the impact of the Covid-19 pandemic on the CJS. The watchdogs determined that while the system was already facing “significant failings,” the pandemic had intensified these failings.
The report noted that there had been some positive initiatives created to respond to the pandemic. This included the acceleration of digital working, which saw the police and the Crown Prosecution Service (CPS) increase the level of digital transfer of evidence. The report also praised staff working in the CJS for their dedication and commitment. That said, it was outlined that the acceleration of digital working was inconsistent. The report highlighted that some service users faced disadvantages because of “inequities” in their technological provisions. It was also noted that forces were using multiple conferencing platforms which hampered communication.
On top of this, the report revealed that there was a lack of education provision in custody and in the community for young people. Prisoner surveys conducted between July 2020 and December 2020, uncovered that only 21% of prisoners that responded found it “easy” to access education. Research showed that rehabilitation efforts were also hit with a significant blow during the first national lockdown.
However, overall the most concerning aspect of the report was the backlog of ongoing cases in Crown Courts. In December 2020, it was found that the number of ongoing cases was 44% higher than in February 2020. A shocking 53,000 cases are also waiting to come before Crown Courts, some of which are scheduled for next year. Moreover, the total criminal courts backlog now stands at nearly half a million (457,000), around 100,000 cases higher than before the pandemic. The remand population is also at a six-year high, now making up 15.5% of the prison population.
A Freedom of Information (FOI) request-response also revealed that in South West London, the number of cases waiting to be heard increased by 46.9% between January 2020 and August 2020.
The Chief Inspectors subsequently voiced “grave concerns” about the impact that this will have on victims, witnesses and defendants. Concerns were also raised over the “ripple effects” this is having on the whole system. Justin Russell, the Chief Inspector of Probation, specifically expressed fear that significant delays will cause victims to “withdraw support for prosecutions because they have lost faith in the process”.
The report concluded by stressing the need for “urgent” and “significant” action to prevent severe implications for victims, witnesses, defendants and prisoners.
Back in July 2020, Justice Secretary Robert Buckland announced that 10 temporary “Nightingale Courts” would be opening up across England and Wales to help ease the backlog of cases. However, from the beginning, many within the legal sector doubted their effectiveness. John Hyde, Deputy Editor of the Law Gazette, said the courts were a bit like “taking a bucket of water to a house fire,” considering how long the plan took to formulate and how “underwhelming” the response ended up being. Meanwhile, the Criminal Bar Association accused the government of wasting millions on courts that were “sitting empty”.
Further controversy was recently stirred up when it was reported that London’s Blackfriars Crown Court, which was sold off in 2019, is being used to film Netflix show Top Boy.
On 28 January it was announced that a further two Nightingale Courts were to join efforts. These two courts are located in Cirencester and Stafford, bringing the total number to 39. However, in June 2020, the Justice Secretary said that 200 courts would be needed to deal with the case backlog.
Responding to the ongoing crisis, Shadow Justice Secretary David Lammy, recently called on the government to introduce “war-time juries” reducing the number of jury members from 12 to seven. He stated that estimates suggest that this would change capacity by 15%-20%.
Explaining the reasoning behind his proposal Shadow Secretary David Lammy, said: “Victims of rape, murder, domestic abuse, robbery and assault are facing delays of up to four years because of the government’s failure to act. Justice cannot be delayed any further. Labour is calling on the government to tackle the backlog by speeding up the rollout of Nightingale courts and temporarily introducing wartime juries of seven until the pandemic is over”.
This proposal has been received critically by the legal sector. CBA chair James Mulholland QC commented that reducing the number of jury members to seven would be dangerous. He said: “In the last week, the challenges we face have, once again, formed a basis for arguing the dismantling of an institution which determines who we are and for what we stand as a society. That must not be allowed to happen”.
Derek Sweeting QC, chair of the Bar Council, echoed this sentiment: “It is the collective life experience and diversity of members of a jury that ensures evidence is tested robustly and the public can be confident that justice is delivered fairly. Reducing the size of juries risks diluting that experience and denting confidence in our justice system”.
Labour’s proposal received further criticism at the evidence session of the Westminster Commission on Legal Aid on 28 January. Baroness Helena Kennedy argued that the proposal was simply not sensible. She added: “‘I do not think that your suggestion will save much time. Cleaning, setting [the court] up, will be the same. It’s not going to make much difference. You’re opening the door to sacrificing the precious way people in our communities contribute to something really important. Serving on a jury is one of the vital things people contribute to society”.
While the legal sector has firmly rejected proposals for war-time juries, a recent survey found that the public supports other substantial reforms to reduce the case backlog. The survey commissioned by Crest found that the public supported “innovative solutions,” but was wary of proposals that would “undermine foundational principles of justice”.
Those polled largely supported an increased usage of online reporting (54%), electronic tagging (52%) and remote hearings (42%). That said, proposals that would dilute trial by jury were not met favourably, with 47% expressing that they were “uncomfortable” with that idea.
Commenting on the survey results, Harvey Redgrave, chief executive of Crest Advisory, said: “Our polling suggests the public do support greater use of digital technology, such as remote hearings, which have grown since the start of the pandemic. The government should prioritise reform in these areas”.
Crest’s report made five key recommendations to tackle the backlog. This includes a CJS bailout of £400m per year, rather than the proposed £275m, and a scaled-up national rollout of police diversion schemes like the “Checkpoint” scheme in County Durham. The report also recommends a reduction of the prison population, to be achieved through a reduction in the use of custody for low-level repeat offenders. To promote a more integrated approach, Crest also recommends a return to the “justice devolution” agenda, as well as the establishment of an inspectorate for the Courts. Additionally, the report recommends that the new “National Crime Lab” should be tasked with “setting standards” for more effective use of technology in the CJS.
According to the Ministry of Justice (MoJ), its courts recovery programme is tackling the issue head-on and “delivering results” however, the facts speak for themselves. The government’s approach to the backlog has been slow and inefficient and worsened the already desperate situation caused by a decade of Conservative cuts.
The CJS is now in a critical position and in desperate need of effective and immediate solutions. After all, justice delayed is justice denied and no more time can be wasted with flimsy, ill-thought-out proposals and empty promises.