2The criminal courts
11.The magistrates’ courts and the Crown Court have been hardest hit by the Covid-19 crisis. Magistrates’ courts have not been able to operate at anything close to normal levels since lockdown began. Jury trials in the Crown Court were suspended for almost two months. Even before the Covid-19 crisis began, the number of outstanding cases in the magistrates’ courts and the Crown Court was relatively, if not exceptionally, high.
The Crown Court
12.Criminal Court statistics for England and Wales for 2019 show that, at the end of December, outstanding Crown Court cases had increased by 13% on the previous year from 33,113 to 37,434 cases.18 The Crown Court backlog grew by around 1,600 cases between February and May 2020. In the equivalent period in 2019, outstanding cases increased by 1,100 (this rate of increase is similar to what was observed throughout 2019). In other words, the backlog had already grown substantially in the year before the Covid-19 pandemic. By May 2020, the Crown Court backlog had reached around 40,900 cases, compared with 33,600 in May 2019. (These figures include all types of cases, including committals for sentencing, which can generally be cleared much faster than the time it takes to carry out a jury trial.)19
13.On 9 July 2020 HMCTS published the weekly management information that it uses to understand workload volumes.20 This data cannot be directly compared with other statistics on outstanding cases published by HMCTS as it is recorded differently. The latest figure, for 21 June 2020, indicates that there were 41,599 outstanding cases in the Crown court. On average, the number of weekly disposals (cases dealt with) since 8 March 2020 has been around 56% of pre-Covid baseline, although the average weekly of number of receipts (new cases coming in) has also been around 58% of pre-Covid level.
14.Ministers and the Lord Chief Justice have argued that the number of outstanding cases in the Crown Court should be seen in the context of unusual circumstances. On 4 May 2020, Chris Philp told the Committee that “receipts into the Crown Court are down 77% compared with the pre-coronavirus average”.21 On 22 May 2020, the Lord Chief Justice told the Committee that the number of disposals in the Crown Court had gone up “because we have been able to deal with a lot of outstanding sentencing”.22 The Government has also suggested that the number of outstanding cases is not exceptionally high in historical terms. Chris Philp told the committee on 4 May 2020 that the number of outstanding cases “is much lower than it was 10 or 15 years ago”.23 Susan Acland-Hood told us: “the backlogs or outstanding case loads are not higher than levels we have seen in the past”.24
15.Since jury trials resumed in May 2020, social distancing guidelines have meant that each trial requires three court rooms rather than the usual one.25 The Lord Chief Justice explained why:
The broad approach that we have adopted is to assume that any trial that would have occupied one court is likely to occupy three: one for the judge, jury, advocates and defendant; one for the press and any interested members of the public who attend; and of course we need a much larger room to enable the jury to gather and deliberate in private.26
16.On 22 May 2020, the Lord Chief Justice told the Committee that: “it is probably not a bad rule of thumb, but no more than that, to assume that the number of jury trials accumulating at the moment is of the order of 1,000 a month”.27 The Crown Court’s inability to process trials at anything close to the rate at which they are accumulating is a root cause of the problem facing the criminal justice system (the Government’s response to this is considered in Chapter 5).
17.The easing of lockdown measures will not necessarily improve this situation. As the magistrates’ courts begin to process more cases and Crown Court receipts go back towards normal levels, it seems likely that the number of outstanding cases will continue to rise unless Crown Court capacity is significantly increased. This point was made to the Committee by Robert Buckland on 23 June 2020.28 The prospect of significant numbers of defendants and victims having to experience months of delay before their cases are heard is concerning.
The magistrates’ courts
18.Magistrates’ courts deal with more than 90% of criminal cases in England and Wales. They have continued to operate in some form throughout the Covid-19 pandemic. A number of magistrates’ courts have remained open to process urgent work, including overnight hearings. Much of this work was processed by professional District Judges rather than lay magistrates. At the height of the crisis in late March and early April, the committee was told that “there was a period of about three to four weeks, running from the end of March or the beginning of April until the third or fourth week in April, when, essentially, no magistrates’ court trials took place at all”.29 Trials in magistrates’ courts began to be listed in late April. On 4 May 2020 Chris Philp told the Committee that in that week 197 magistrates court trials had been listed. He added that “the average number of magistrates court trials that were effective pre-coronavirus was at about the 800 mark”.30
19.Using the official monthly management figures it is possible to put the current situation in context with the number of outstanding cases in recent years. At the end of May 2020, there were 416,600 outstanding cases in the magistrates’ courts, which is the highest backlog in recent years. The backlog previously peaked at 327,000 outstanding cases in 2015. The recent increase is mainly the result of there having been far fewer disposals than usual between the end of February and the end of May 2020, when the courts were going into lockdown. During this time, the backlog in the magistrates’ courts backlog grew by nearly 99,000. The number of disposals in April 2020 was around 20% of what it had been in a typical month in 2019. The number of new cases received by the magistrates’ courts in May was around 60% of usual volume. The growing backlog is caused by more cases coming in than are being cleared.31
20.This analysis was confirmed by figures in the new weekly HMCTS statistics. Those set out that in the magistrates’ courts the pre-Covid-19 baseline of outstanding cases was 407,129. On 21 June 2020 that figure was 510,559, a more significant rise in cases than in the Crown Court.32 The build-up is the result of disposals being around 43% of pre-Covid baseline level on average per week since 8 March 2020, while receipts have stayed at around 63% of pre-Covid level.33
21.On 23 June 2020, the Lord Chancellor told the Committee that he was confident that “we can manage the magistrates case load backlog this year”.34 The Justice Committee conducted two inquiries on the Magistracy in 2015–19, and both reports noted with concern the “Government’s failure to develop an adequately funded, overarching national strategy for the magistracy”.35 We invite the Ministry of Justice to demonstrate how it intends to work with the magistracy in order to deliver its recovery plan.
Conclusion
22.The Covid-19 pandemic has had a major impact on the operation of the criminal justice system.36 By contrast with some parts of the civil justice system, technology has not provided solutions to enable trials to go ahead in the magistrates’ courts and the Crown Court at anything close to normal levels. The number of outstanding cases create the ingredients for a significant crisis in the criminal justice system. Victims of crime will have to wait longer to know whether they will get justice. Defendants awaiting trial will spend longer on remand in custody or out on bail in the community.
23.We are particularly concerned about the effect delays will have on defendants turning 18. Delays in getting to court may increase the possibility of those who committed their offence at 17, being dealt with in the adult system, as they turn 18 whilst awaiting trial. Delays may mean that their first court appearance may not take place until they have turned 18, and thus they face being convicted as adults, which could mean longer sentences and rehabilitation periods. There is a vast gap between the youth and adult criminal justice system, and those in this position may find that they lose access to crucial youth offending services, such as diversion schemes. The Ministry should set out how many defendants currently find themselves in this position, and what is being done to address this issue.
24.The Lord Chief Justice criticised the quality of the data available to help manage the response to the crisis:
What we have discovered, as we have been trying to delve down into all the figures, is that because of the rather haphazard systems that still operate in a lot of our courts it has been extremely difficult to get reliable data.
What I have been trying to find out—we have not got there quite yet, I am afraid—is to identify with much more clarity how many trials we have, how many are trials with defendants awaiting trial in custody, and how many are defendants awaiting trial on bail.37
It is remarkable that in 2020 basic data on how many cases are in progress and how many trials due is not yet available to the Lord Chief Justice, but the absence of data of requisite quality is a familiar issue within the justice system. We are as concerned as predecessor Committees at the prevalence of this issue across a range of areas: sentencing, diversity and the use of technology. We invite the MoJ and HMCTS to set out, with a timeline, how the provision of basic management information for those running the courts and tribunal system, of the type sought by the Lord Chief Justice, is to be achieved.
25.Phil Bowen, Director, Centre for Justice Innovation, told us that in the case of children and young people:
As the Committee probably knows, we do not know yet what the backlog is specifically for young people under the age of 18, because the Courts Service does not produce data on backlogs specific to youth courts.38
The Committee are concerned that HMCTS does not produce data on backlogs specific to the youth courts. We recommend that the Ministry and HMCTS confirm whether this data is collected and if not, why not. If this data is collected, the Ministry and HMCTS should publish this data separately from data relating to the adult court system.
26.To respond to this unprecedented crisis, HMCTS will have to increase the capacity of the magistrates’ courts and the Crown Court. It is regrettable that after 10 years of court closures, more progress has not already been made to enable court hearings in alternative venues. In 2019, our predecessor committee noted that since 2016 “there has been surprisingly little progress in developing alternative court venues to mitigate the impact of court closure”.39 One of the core lessons of this crisis is that the courts which are the front line of criminal justice need to run in such a way that their capacity can be increased in response to demand. Closing courts and reducing court capacity before implementing reforms that can increase capacity, either through technology, staffing or changes to the estate, left the criminal justice system in a difficult place going into this period of crisis.
27.Chapter 5 examines the solutions proposed to deal with the specific problem of jury trials. The Committee is confident that solutions can be found to get the number of outstanding cases down. However, it is imperative that the changes made are sustainable so that the criminal justice system is better placed to weather any future crisis. Now is the time to increase capacity for the long term.
18 Ministry of Justice, Criminal court statistics quarterly, England and Wales, October to December 2019 (Last accessed 13 July 2020)
19 HMCTS, HMCTS management information - May 2020 and August 2019, table 1
20 HMCTS, HMCTS weekly operational management information March to June 2020, 9 July 2020
31 HMCTS, HMCTS management information - May 2020 and August 2019, table 1), House of Commons Library, Court statistics for England and Wales, December 2019
33 HMCTS, HMCTS weekly operational management information March to June 2020, 9 July 2020
35 Justice Committee, Eighteenth Report of Session 2017–19, The role of the magistracy: follow-up, HC 1654, p.42–43
36 In a Court of Appeal case decided on 30 April, R v Manning [2020] EWCA Crim 592, Lord Burnett, the Lord Chief Justice, set out some principles to inform how judges approach sentencing during the Covid-19 pandemic: “The current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence”.
39 Justice Committee, Eighteenth Report of Session 2017–19, The role of the magistracy: follow-up, HC 1654, para 101
Published: 30 July 2020