5The recovery plan
75.On 24 March 2020 the Lord Chancellor and Secretary of State for Justice, Robert Buckland QC, told the Committee that he would work closely with the judiciary to ensure that “we have a recovery plan so that whenever this ends […]—we are ready with listings and allocations at the right time”.101 Since that statement, the impact of Covid-19 on the courts has become clearer and the number of outstanding cases, as set out in Chapter 2, has caused considerable concern.
76.On 23 June 2020, Robert Buckland told us that the outstanding cases in the magistrates’ courts and the Crown Court will be brought under control:
We need to remember the fact that we want to deal with this case load in the next few months rather than in years. That is an important point as well. Lots has been said about years and years of case load. Not true. Any suggestion of two or three or, as I saw today, five years is wrong. We are confident that we can manage the magistrates case load backlog this year.
The Crown Court is somewhat more complex, but we think we can, with all the measures that we have talked about, or a combination of them, deal with the problem by Easter 2021.102
We welcome the Government’s clear commitment to an ambitious timetable for getting the number of outstanding cases under control. Our concern is not so much the absolute number of outstanding cases or hearings but rather that the Government can demonstrate that there is a clear plan to reduce the rate at which outstanding cases are accumulating which does not compromise the core principles of our justice system.
Jury trials
77.The Committee was concerned to learn that the Government was contemplating suspending jury trials and replacing them with “the disposal of either-way trials in the Crown Court by a judge sitting with two magistrates”.103 We recognise that this proposal has not been adopted as Government policy, but was merely one of a number of options being considered. Nevertheless, the proposal itself was in conflict with what Chris Philp MP, Parliamentary Under Secretary of State for the Courts, told us on 4 May 2020:
[T]here is categorically no question at all, under any circumstances, of the right to jury trial being removed. It is a fundamental right. It goes back centuries in our history, and it will never be removed at all.104
78.He added that the Government might consider “allowing a minimum jury size of seven rather than nine”. On 23 June 2020, the Lord Chancellor told us he was “attracted by that proposition”. The Lord Chancellor explained that the option of a judge and two magistrates was only being contemplated for a limited range of cases, namely those cases that fit in “the either way category” which can be tried in either the magistrates’ courts or the Crown Court, but which either through a defendant’s choice or the magistrate’s decision, end up in the Crown Court.105
79.We welcome the fact that the Government “is canvassing and developing policy options” on future provision of jury trials. However, we regret that this process appears to be going on behind closed doors through informal discussions rather than through a transparent policy process. The committee notes that the Scottish Government produced a discussion paper on criminal trials during COVID-19 to inform parliamentary discussions in April 2020.106 The Scottish courts are going in a different direction, by relying on virtual courts for summary criminal cases. We do not believe replacement of some types of jury trial with trial by judge and magistrates is appropriate.
Increasing capacity
80.Susan Acland-Hood, the Chief Executive of HMCTS, outlined to the Committee on 23 June 2020 concerns over the capacity of the courts:
The challenge at the moment, as I was describing a little earlier, is that certainly at 2 metres social distancing, and even at 1 metre, if we use the full capacity of the court system we have, we are still well below the level where we can get our disposals to equal the level of receipts we expect to see, so the backlog will continue to grow for the foreseeable future unless we do something different.107
81.On 23 June 2020, the Lord Chancellor and the Chief Executive of HMCTS, Susan Acland-Hood, explained that the Government’s priority in terms of reducing the rate at which the number of outstanding cases is growing is to take the following steps:
- to establish alternative accommodation (which the Government are calling “Blackstone courts”);
- to open all courts;
- to extend court hours; and
- to hear as much suitable work by audio or video.
On 1 July 2020, HMCTS published a report, ‘COVID-19: Overview of HMCTS response’, which provided some details on the recovery plan. We welcome the commitment to “listen to feedback from judges, staff and users to improve the way we work in the short term, and gather data and other evidence to support continuous improvement”.108
82.The report states that the court and tribunal reform programme is “continuing alongside the pandemic response”.109 That is to be welcomed. However, the committee is concerned that the precise nature and scope of the reform programme is now rather unclear. In light of the extraordinary measures taken to respond to Covid-19, the Committee recommends that the court and tribunal reform programme is reformulated in order to facilitate debate and engagement over which previously planned or newly introduced measures will be kept for the long term. It is vital that long-term decisions are taken after consultation with all relevant stakeholders. It would be beneficial if HMCTS could outline how the extraordinary measures taken fit within the overall reform programme. Our understanding is that the programme has been “accelerated”, which we welcome. We would be interested to know what this acceleration means for the overall timescale and the long-term goals of the programme.
83.Appearing before the previous Justice Committee in October 2019, the MoJ Permanent Secretary, Sir Richard Heaton, said that the reform programme was still expected to conclude by 2023 and that annual savings were anticipated to be close to the original target of £244 million (Q80). On 22 May 2020, the Lord Chief Justice noted with regret in his evidence to us that there have been delays in the HMCTS reform programme. He noted that delays can be caused when there is “cheeseparing on the money”.110 On 1 July 2020, the Lord Chancellor wrote to the Committee to confirm that £142 million of capital funding for courts and tribunals has been secured.111 The Lord Chancellor’s letter noted that this is the “single biggest investment in the maintenance of our courts for over 20 years”.112 This is a welcome development. The Committee would welcome an update on how much further investment there will be in the reform programme following the measures taken to respond to Covid-19.
Court sitting days
84.Before the Covid-19 pandemic and its impact on the courts, the Lord Chief Justice acknowledged that a backlog of cases was inevitable, but placed the responsibility for determining the extent of the backlog on the Government:
It is inevitable that there will be a backlog in any court because it takes time for the parties to be ready for a case to be heard. But the judiciary would like to see cases tried in all jurisdictions as soon as reasonably practicable after the parties in them are ready to start and so any backlog beyond that level is not a matter of judicial decision, it is a matter which the Executive decides for its own reasons.113
85.In an attempt to tackle the rising backlog of cases, in February 2020, the Ministry of Justice announced that it would increase the allocation of Crown Court sitting days for the first half of 2020/21 by 4,700 to a minimum of 87,000.114 However, the Criminal Bar Association noted that despite the increase, the number of sitting days was 10,000 fewer than in 2019 and 27,000 fewer than in 2015/16.115
86.As we set out in Chapter 2, Covid-19 has had a substantial impact on the number of court sitting days available and the number of cases outstanding. On 4 May, Chris Philp, Parliamentary Under Secretary of State at the Home Office and Ministry of Justice, told us that on 26 April 2020, the outstanding caseload in the Crown court was 35,679.116
87.The Lord Chief Justice and Government ministers have all acknowledged that a further increase in sitting days could go some way to alleviate the situation. Chris Philp, Parliamentary Under Secretary of State at the Home Office and Ministry of Justice told us that an increase in sitting days was being discussed, but also set out the negotiations process by which decisions about court sitting days is decided:
[…] The number of Crown Court sitting days as a baseline in the current financial year was committed to by the Lord Chancellor as an absolute minimum of 87,000 sitting days, with a view to revising it further upwards by the concordat process. The Crown Court sitting days in the last financial year, 2019–20, were increased in year, but were around the 83,000 mark. A 4,000 increase has been agreed already, with potentially more to come. The concordat process would have taken place in March/April time but has now been postponed to September because of the current circumstances. That will be discussed between the Lord Chancellor and the Lord Chief Justice in about September. Quite a few of the Crown Court sitting days that might have happened in the course of April, May and June probably will not happen, so they can be carried forward into the back half of the year. On top of that, there is a discussion about an increase beyond 87,000.117
88.The Lord Chief Justice told us on 22 May 2020 that there was a need for further sitting days,118 while on 23 June 2020, the Lord Chancellor and Secretary of State for Justice also set out his view on the need to increase sitting days and tackle the backlog:
The way in which the negotiations work, as I think you know, is based on the year-on-year allocations in the different jurisdictions. It is not a multi-year exercise because flows change; they ebb and they flow. A decision was made before my time, for example, on criminal hearings in the year 2019–20, which, frankly, was overtaken by events, and could not have been foreseen by those who made the calculations on which the decision was made back in late 2018/early 2019. Having said that, for this year the exercise is wholly academic. We need to find as much space as possible, use as much time as possible and get as many sittings as possible to get on with the work.119
89.We welcome the Lord Chancellor’s moves to increase the number of court sitting days after significant reductions in recent years. More court sitting time will be an essential element among steps to deal with the growing number of outstanding cases in the court and tribunal system. We take this opportunity to announce that we will on the day this Report is published launch a full new inquiry into Court Capacity.
90.We were pleased to hear that the Government’s plans to address these issues are not limited to solely increasing sitting days when the Lord Chancellor and Secretary of State for Justice set out his plans for alternative ways to further increase the capacity of the courts.
There are a number of options that we have been looking at for some time: first and foremost, maximising the space we have, and we have already talked about what might be done with the 1-metre rule coming in; and, secondly, it is looking at increasing that capacity. That is why from a very early stage I was a strong advocate of what were known as Nightingale courts; we are calling them Blackstone courts to give them a bit of legal context.
The work that has been done by HMCTS, by the judges, and by practitioners once again to identify alternative accommodation is already yielding fruit. I have been able officially to sign off a number of alternative venues this week, which we want to get up and running over the next few months. I need to scale that operation up dramatically, and to unprecedented heights, if I am not just going to deal with the current backlog but to manage it in a position that I think is sustainable for the long term. I need also to look at court hours, making sure that we maximise the court sitting day, to stagger appearances by both practitioners and court users, and therefore sit as long as we can on perhaps even more days of the week than we do at the moment, so that we manage the backlog.120
91.All these suggestions are laudable, but they come with their own benefits and drawbacks. In the 2015–17 Committee’s report The role of the magistracy, the Committee found that there while there were no objections “in principle” to pop-up courts, there were concerns about a potential lack of appropriate security in non-standard court buildings,121 as well as concerns about the negative impact of an increased travel time, caused by court closures, on magistrates and court users.122 We fully expect that any changes to working practices would affect all court users, in some cases positively and in others negatively.
92.Furthermore, the Lord Chief Justice also noted several problems with the physical court and tribunal estate, setting out in the Lord Chief Justice’s Report 2019 that there are problems with the age and condition of buildings and problems with getting issues fixed quickly. He noted that these issues can affect hearings in the courts, causing them to be adjourned.123
93.On 19 July, the Government announced the opening of 10 ‘Nightingale courts’.124 The rapid establishment of these temporary courts is a positive development. The added capacity is much needed. The decision to open these courts should prompt a revaluation of the Government’s approach to the estates reform programme. The dramatic reduction in the size of the courts’ estate in England and Wales over the past ten years looks increasingly difficult to justify. The Justice Committee’s 2019 report on court and tribunal reform argued that the default position should be that “supplementary venues be established in every area where there has been a court closure in the past 10 years”.125 Nightingale courts are described as temporary but HMCTS should explain the long-term role of supplementary venues and should also set out how Covid-19 will change the long-term approach to the estates reform programme. The National Audit Office’s 2019 report on court reform noted that “future closures depend on the extent to which HMCTS can reduce demand by moving hearings out of court and improving efficiency”.126 The impact of Covid-19 on the justice system means that the case for future closures will have to be fundamentally re-evaluated.
94.Access to justice is a fundamental right, and as the backlog of cases increases, more and more people are waiting for their day in court. We welcome the Government’s attempts to reduce the backlog by thinking beyond simply increasing sitting days, but any new initiatives must not merely remove one barrier to justice and replace it with another. Therefore, we urge the Government to ensure that access to justice remains at the heart of its proposals and works with all court users as it develops its plans to tackle this problem. Furthermore, it will be necessary to ensure that problems with the physical court estate are addressed, otherwise any attempts at addressing these issues will be sabotaged by the Government’s own court reform programme. We invite the MoJ and HMCTS to set out a comprehensive plan for how the backlog in unheard cases will be dealt with, including details of additional provision of court premises and sitting hours, proposed timelines for reducing the backlog and estimates of when the number of cases outstanding will be returned to pre-Covid-19 levels or lower.
Conclusion
95.On 22 May 2020 in his evidence to us, the Lord Chief Justice, Lord Burnett made a striking statement on the health of the courts as they went into the Covid-19 crisis:
The need for new funds extends well beyond just the criminal justice system. What we have learned over the last couple of months is what happens when systems and parts of an organisation are starved of funds that deny an opportunity to update in a pretty routine way. For example, had we had the ability for parties to lodge their papers online in the county court or in some of the family courts, much more work would have been capable of being done. You ask me about when I have discussions with the Lord Chancellor about this. As you will appreciate, the Lord Chancellor and I meet very frequently. I suspect any of his officials who are watching this will have smiled when you asked that question, because there is barely a meeting that goes by without my mentioning resources and the need for there to be proper funding of the administration of justice. It has been underfunded for years and years. The consequences of that underfunding are coming home to roost.127
When we put this statement to the Lord Chancellor, he responded that last year saw the “largest rise in many years last year, a rise of nearly 5% in the revenue budget”.128 He added that at the highest level in Government there was “an understanding the consequences that the expansion of our police force” will have for the justice system.129
96.The response to the Covid-19 pandemic has shown that dynamic change can be achieved within the justice system. It is remarkable to reflect on the extent of the modernisation that has been achieved in a three-month period, when the most basic digitisation has taken decades. We commend the Lord Chancellor to capitalise on the momentum built up over the last four months to build the capacity of the court and tribunal system for the long term.
106 Scottish Government, Criminal trials during COVID-19 outbreak (14 April 2020)
108 HMCTS, COVID-19: Update on recovery in courts and tribunals (1 July 2020)
109 HMCTS, COVID-19: Update on recovery in courts and tribunals (1 July 2020)
111 Letter from the Lord Chancellor and Secretary of State for Justice to the Chair of the Justice Committee (dated 1 July 2020)
112 Letter from the Lord Chancellor and Secretary of State for Justice to the Chair of the Justice Committee (dated 1 July 2020)
113 HMCTS, Lord Chief Justice annual press conference 2020, 28 February 2020, p. 3
114 HC Deb, 5 February 2020, cW
115 “Crown court sitting days increase; nowhere near enough’ - criminal bar”, The Law Society Gazette, 5 February 2020
121 Justice Committee, Sixth Report of Session 2015–16, The role of the magistracy, HC 165, paras 90 - 91
122 Justice Committee, Sixth Report of Session 2015–16, The role of the magistracy, HC 165, paras 88 - 89
123 Judiciary of England and Wales, The Lord Chief Justice’s Report 2019, 5 November 2019, p. 10
124 Ministry of Justice and HMCTS, 10 ‘Nightingale Courts’ unveiled (19 July 2020)
125 Justice Committee, Second Report of Session 2019, Court and Tribunal reforms, HC 190, para 129
126 National Audit Office, Transforming courts and tribunals—a progress update, (2019) para 3.9
Published: 30 July 2020