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COVID-19 and the Courts Contents

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Chapter 3: Managing the backlog

126.The pandemic has had a substantially detrimental impact on the flow of cases through the courts and tribunals of England and Wales. The number of outstanding cases has grown since March 2020 and is now at record highs. As the impact of COVID-19 continues to be felt, it may take several years before the backlogs across jurisdictions return to pre-pandemic levels.153

127.The swift administration of justice is a vital public service which underpins the rule of law. It is a familiar aphorism, often attributed to Gladstone, that “justice delayed is justice denied” and King John famously pledged in Magna Carta that he would neither deny nor delay justice. The human cost of the backlog can be measured in part by defendants being held on remand in prison for longer, litigants and victims waiting longer for justice, and a greater likelihood of evidence being lost or forgotten during the lengthier waits for a hearing.

The criminal justice system

128.Criminal courts have been badly affected by the COVID-19 pandemic due to the difficulty of delivering courtroom-based hearings while maintaining social distancing. Despite the increased use of video technology and other changes to court operations, the number of hearings processed in the criminal courts remains significantly below pre-pandemic levels.

129.The number of cases processed between the end of March 2020 and late February 2021 in the Crown Court averaged 75% of pre-coronavirus levels; in the magistrates’ courts the figure was 55%.154 The total criminal courts backlog155 now exceeds 530,000—almost 100,000 more than at the start of the pandemic.156

130.The pandemic has exacerbated, rather than created, the backlog in the criminal courts. In early March 2020, before the first UK-wide lockdown, the total criminal courts backlog exceeded 430,000.157

The Crown Court

131.The Crown Court has been hit particularly hard. Jury trials were suspended for two months in March 2020 and have not yet reached pre-pandemic levels.158 This, combined with the continued difficulties of holding trials with multiple defendants, has exacerbated the Crown Court backlog that pre-dates the pandemic.159 Prior to the March 2020 lockdown, approximately 39,000 cases were waiting to be heard in the Crown Court. Eleven months later that figure exceeded 56,000 (see Figure 5).160

132.This figure does not fully reveal the extent of the increase in outstanding jury trials. The Lord Chief Justice explained that the number of outstanding cases in the Crown Court had been reduced by focusing on preliminary, procedural, and sentencing hearings during the pandemic.161 Jury trials take far longer to complete, and pose more challenges for social distancing, than those types of hearings.

133.Adjusting the Crown Court backlog to take that into account, the Institute for Government and the Chartered Institute of Public Finance and Accountancy estimated the backlog at closer to 70,000 cases in November 2020—around 30% higher than the reported data and a 78% increase on the pre-Covid baseline.162

Figure 5: Outstanding cases in the Crown Court

Source: HMCTS, ‘HMCTS weekly management information during coronavirus: March 2020 to February 2021’, (11 March 2021): https://www.gov.uk/government/statistical-data-sets/hmcts-weekly-management-information-during-coronavirus-march-2020-to-february-2021 [accessed 15 March 2021]

134.Significant delays to criminal trials have followed. In March 2021 the Lord Chancellor has said that some trials have been listed for as late as 2023.163 Defendants, complainants and witnesses are reportedly having to wait up to four years from the time of an alleged offence for a Crown Court trial.164 Such delays have a significant human and evidential impact, with the difficulties of recalling evidence compounding the stress of awaiting trial.

135.Crest Advisory, a specialist crime and justice consultancy and research organisation, reported that Crown Court capacity would need to double to return to pre-Covid backlog levels by 2024. It found that the backlog of Crown Court cases could exceed 195,000 in 2024 (a fivefold increase on pre-pandemic levels).165 Crest concluded that a backlog of this severity would pose “a catastrophic risk to public confidence, procedural fairness and effective enforcement of the law”.166 The Ministry of Justice said the study was based on “extreme assumptions that do not stand up to reasonable scrutiny”.167 The authors said they had modelled a reasonable worst-case scenario.168

136.Her Majesty’s Crown Prosecution Inspectorate, the independent body that oversees prosecutors, warned that it may take a decade to reduce the number of cases to pre-Covid levels if restrictions remain in place beyond 2021.169

Magistrates’ courts

137.Jury trials do not take place in the magistrates’ courts. This reduces the operational challenges of delivering physical hearings in compliance with social distancing requirements and makes it easier for cases to progress.

Figure 6: Outstanding cases in magistrates’ courts

Source: HMCTS, ‘HMCTS weekly management information during coronavirus: March 2020 to February 2021’, (11 March 2021): https://www.gov.uk/government/statistical-data-sets/hmcts-weekly-management-information-during-coronavirus-march-2020-to-february-2021 [accessed 15 March 2021]

138.Where possible, hearings have taken place in the magistrates’ courts using remote technology (see Chapter 2). Extended opening hours have also contributed to a rise in case disposals.170 Partly as a result of these measures, in July 2020 the backlog started to decrease, but by mid-December it was rising again (see Figure 6).

139.By late February 2021, the backlog in the magistrates’ courts had reached 476,932, a roughly 20% increase on the early March equivalent.171 As in the Crown Court, the main consequence of this backlog is delay. The average waiting time between charge and disposal almost doubled between March and November 2020.172

140.Under the current recovery plan, the Government expects to be running magistrates’ courts at 2% above pre-coronavirus capacity from December 2020.173 At that rate it is expected to take just over two years for the backlog to return to pre-pandemic levels.174

141.The backlog in the criminal courts is neither acceptable nor inevitable. Years of underinvestment in the criminal justice system contributed to a significant backlog that predated the pandemic.

142.The backlog has now reached record levels. The consequent delay to criminal trials is undermining the rule of law, access to justice and risks damaging public confidence in the justice system. Urgent Government action and investment is necessary to reduce the backlog in the criminal courts.

143.We recommend that the Government provides the assistance and funding necessary to ensure that: (a) all cases in the Crown Court are tried within one year of the plea and trial preparation hearing; and (b) the average time from charge to disposal in the magistrates’ courts falls to 8 weeks or fewer. The Government should also report to Parliament annually on the progress made in respect of both matters.

144.One particularly concerning consequence of the backlog is the decline in the number of people who have been prosecuted, convicted, and sentenced in England and Wales in recent months. Delays to trials have made it necessary for the Crown Prosecution Service to carefully select which cases can be heard. As a result, the number of people being prosecuted or handed out-of-court disposals fell by 22% in the 12 months to September 2020, compared with the same period a year earlier. There was also 19% drop in the number of offenders convicted and a similar decrease in the number of people sentenced.175

145.We recommend that the Government sets out how it is responding to the fact that court delays appear to have resulted in a reduction in prosecutions and convictions.

Pre-trial detention

Increased remand population

146.Individuals charged with a crime and held in police custody must be brought to the first available court to determine whether they should continue to be held (remanded) in custody. If remanded, they are kept in prison for a limited period while awaiting trial.

147.Delays in the Crown Court have increased the periods for which defendants are being held in custody on remand. In the year to December 2020 the prison population fell by 6% but those in prison awaiting trial increased by 28%. In December 2020, over 8,000 men and women were on remand awaiting trial.176

148.The proportion of unsentenced children in custody is historically high. In December 2020, of the 381 children in custody, 130 (or 34%) were awaiting trial.177 This is a significant change since 2015 when remanded children represented just 22 per cent of the youth secure estate.178 Many of the children on remand awaiting trial will never receive a custodial sentence. Two thirds (66%) of children given a remand to youth detention accommodation did not subsequently receive a custodial sentence in the year ending March 2020.179

149.An increased remand population appears likely to disproportionately impact children and young people180 from black and minority ethnic backgrounds. Across England and Wales, over half of children and young people in custody (315 out of 614) were from black and minority ethnic backgrounds in January 2021.181 Between July and September 2020 87% of children on remand in London were from black and minority ethnic backgrounds.182

150.Prison conditions have also worsened during the pandemic. Those in custody are confined to their cells for longer periods than would otherwise be the case—currently, 23 hours a day in some prisons—and are unable to receive visits.183

Extended custody time limits

151.Article 6 of the European Convention on Human Rights includes a right to a fair and public hearing, conducted within a reasonable time, by an independent and impartial tribunal. Custody time limits safeguard un-convicted defendants (those who have been charged with a crime but who have not been found guilty) by preventing them from being held in pre-trial custody for an excessive period of time. These time limits ensure that prosecutors progress cases promptly and that individuals accused of crimes are protected from undue punishment before trial. Custody time limits may be extended in certain cases on application by the prosecution with permission from a court.

152.In September 2020 the Government temporarily extended custody time limits from six to eight months184 to “ensure that, as we work to restore capacity to pre-Covid levels, courts have sufficient powers to effectively manage these unavoidable delays” and to provide “certainty for victims and the public in cases where there is a risk that defendants may abscond or commit offences if released back into the community on bail”.185 This extension to custody time limits took effect under secondary legislation laid under the negative procedure and was not debated in Parliament before it became law.186

153.The Howard League for Penal Reform said this extension to custody time limits “permits and facilitates further delay and therefore hardship on people who, under English law, are still ‘innocent until proven guilty’. It should be revoked in its entirety”.187 Professor Richard Susskind, the President of the Society for Computer and Law, said: “we face a major public challenge in how to cope with the massive backlog that will inevitably [lead to a] build-up of serious criminal cases where people’s liberty is at stake.”188

154.The growing remand population and the extension to custody time limits have resulted in a serious diminution of the right to liberty and the rule of law. The significant impact of the backlog on un-convicted defendants, innocent until proven guilty, underscores the urgent need for action to reduce the backlog in the criminal courts.

155.We welcome the Government’s decision to exclude defendants under the age of 18 from the extension to custody time limits. But the proportion of children in custody who are on remand, and the ethnic make-up of this cohort, is unacceptable.

156.We recommend that the Government reports to Parliament by the end of 2021 on the steps it will take to reduce the proportion of children on remand in custody. Depriving a child of liberty should always be a last resort and for the shortest possible time. Alternatives to custody, such as enhanced monitoring arrangements, should be utilised wherever possible.

157.We recommend that any further extension to custody time limits be scrutinised and debated by Parliament before taking legal effect. The extension of custody time limits is a significant policy decision with serious implications for the right to liberty and the rule of law. Adequate Parliamentary scrutiny and debate is essential for a change of such fundamental constitutional importance to take effect.

Civil courts and tribunals

158.Virtual hearings enabled certain civil jurisdictions to operate close to pre-pandemic levels (see Chapter 2),189 but the backlogs in the family courts and the Employment Tribunal have risen significantly since the outset of the pandemic. The stay on housing repossessions is likely to have also created a backlog of cases, although data on the number of outstanding possession cases have not been made available.

The family courts

159.The family courts in England and Wales handle a range of matters relating to marriage, divorce, and the care of children. Most seriously, family courts determine cases where the Government intervenes to protect a child from harm (referred to as ‘public law’ cases). These cases can lead to children being taken into care, adopted, or placed with extended family.

160.Prompt decision-making in the family courts is one of the essential ways in which the state protects vulnerable children. Delay can itself cause significant harm. Lengthier waiting times for hearings can increase uncertainty for families, damage family relationships and result in vulnerable children living in unsafe conditions for longer periods.

161.The family courts adapted rapidly to telephone and video hearings in response to the pandemic. Judicial sitting days reached record levels over the summer of 2020. This helped to speed up case progression and tackle the backlog of cases.190 In October 2020 the President of the Family Division, Sir Andrew McFarlane, considered the family court system to have adapted well to remote working.191 Despite these significant efforts, the family justice system has been unable to progress remote hearings as quickly as it had delivered face-to-face hearings before the pandemic and the backlog in the family courts has increased (see Figure 7).192

Figure 7: Outstanding cases in the family courts (public law and private law combined)193

Source: HMCTS, ‘HMCTS weekly management information during coronavirus: March 2020 to February 2021’, (11 March 2021): https://www.gov.uk/government/statistical-data-sets/hmcts-weekly-management-information-during-coronavirus-march-2020-to-february-2021 [accessed 15 March 2021]

162.In November 2020 HMCTS said that “[e]ven if the levels of judicial sittings are sustained for the remainder of this financial year, and if we improve the disposal rates through more efficient remote hearings and increased levels of face-to-face hearings, we are likely to see backlogs continue to grow in both family public and private law”.194

163.This means that there are likely to be significant delays in the family courts for the foreseeable future. HMCTS estimate that, even with an increase in the number of sitting days in the family courts, it may be three years before the backlog returns to pre-crisis levels.195

164.The backlog in the family courts before the pandemic was significant and returning to pre-pandemic levels will be insufficient. The Council of Her Majesty’s Circuit Judges said:

“The Family Court was already experiencing unprecedented delays in the system prior to lock down … individual judges are routinely encountering difficulty in listing contested hearings within a reasonable timescale for the child in question.”196

165.The Public Advisory Group of the Family Justice Board, a cross-sector forum which oversees the family justice system, issued the following statement in December 2020:

“The progress made in securing protection, stability and permanence for children [in the family courts] has been under increasing pressure, with growing backlogs exacerbated by COVID-19. For children who remain stuck in the middle of the court system, the detriment to them is immeasurable. Their young lives are now on hold and their whole futures could be seriously affected with long-term consequences.”197

166.The Group called for a review of “the most effective use of the existing court estate [and] the establishment of further Nightingale court buildings to increase the court estate on a temporary basis” to address the backlog.198

167.Of the £150 million Government funding provided to HMCTS in response to the pandemic, £37 million has been allocated to civil and family court services, over half of which has already been spent.199

168.Despite efforts to limit the backlog in the family courts, the number of outstanding cases remains high. Delay in resolving disputes concerning families and children can itself cause significant harm. HMCTS has estimated that it may take three years to return to pre-pandemic levels. Such a delay would be unacceptable.

169.We recommend that the Government explores additional ways to reduce the backlog in the family courts as a matter of urgent priority. Additional funding for temporary courtrooms in suitable buildings, greater use of retired and part-time judges, and greater use of alternative dispute resolution would help to reduce the backlog in the family courts (see further paragraphs 208–214 and 234–239).

The Employment Tribunal

170.Employment tribunals deal with claims brought against employers by employees. This includes claims relating to unfair and wrongful dismissal, discrimination, and equal pay.

171.By late February 2021 the number of outstanding cases in the Employment Tribunal had increased by 45% when compared to pre-Covid levels.200 The average waiting time for a hearing in December 2020 was 49 weeks—an increase of 15 weeks compared to December 2019.201

Figure 8: Outstanding cases in the Employment Tribunal (multiple and single claims combined)202

Source: HMCTS, ‘HMCTS weekly management information during coronavirus: March 2020 to February 2021’, (11 March 2021): https://www.gov.uk/government/statistical-data-sets/hmcts-weekly-management-information-during-coronavirus-march-2020-to-february-2021 [accessed 15 March 2021]

172.The Government has allocated 4% of its courts recovery money to tribunals, which includes the Employment Tribunal in addition to the Immigration & Asylum, Social Security and Child Support tribunals (£3.4m out of the £80.8m of Covid-related funding announced in September 2020).203

173.Rising unemployment in the wake of the pandemic, combined with the impact of COVID-19 on working conditions, suggests that this backlog is likely to continue to increase. Citizens Advice, a network of independent UK charities that provide free financial and legal advice, has warned of a “perfect storm” of rising demand at a time of restricted capacity in the Employment Tribunal. It has called for additional emergency funding to increase capacity further and ensure tribunals can clear the backlog.204

174.The backlog in the Employment Tribunal could lead to justice being delayed for many who are already significantly suffering as a result of COVID-19. The prompt resolution of legal disputes is critical for the lives and well-being of individuals, as well as the effective management of businesses. The timely delivery of justice also underpins the rule of law. Backlogs in employment and housing repossession cases threaten to undermine these fundamental aims of our justice system.

Housing possession claims

175.From 27 March 2020, all housing possession claims were suspended in courts in England and Wales. The ban initially ran for 90 days (until 25 June 2020) but was later extended to 20 September 2020.205 Repossession actions in the courts restarted on 21 September 2020.206

176.There is no official number of outstanding housing possession claims.207 James Sandbach said that the stay on eviction proceedings had caused a “massive backlog” that was a “significant” cause for concern: “all the tenancy problems and disputes that might have developed during lockdown could lead to a tsunami of cases once the stay has lifted”.208 From October to December 2020, the median average time from claim to landlord repossession increased to 43 weeks, up from 21 weeks in the same period in 2019.209

177.The stay on housing possession claims protected private and social renters from eviction during the COVID-19 pandemic, and was a significant step in providing security of tenure for most tenants in England and Wales during a difficult period. However, it has contributed to the backlog in the courts, further undermining the timely delivery of justice and placing additional pressure on the justice system.

178.We recommend that the Government considers how alternatives to litigation might be implemented to alleviate the volume of housing repossession cases awaiting disposal in the courts.

Government response to the backlog

179.Additional funding has been made available to support HMCTS in its recovery from the pandemic. In January 2021, the Government reported that “£142m has been spent on upgrading court buildings and technology, alongside £110m to increase capacity”.210 The Lord Chancellor announced an additional £30m of funding on 16 February 2021.211

180.The steps taken to enhance court and tribunal capacity during the pandemic, and to thereby reduce the backlog across all jurisdictions, include:

• Maximising the use of HMCTS’s existing estate. 1,600 extra staff have been hired and plexiglass screens have been set up in more than 450 courts.212 By the end of December 2020, HMCTS had made over 290 courtrooms available for jury trials, in addition to over 120 court rooms for non-jury trial work across 79 Crown Court sites.213
• Providing additional courtroom and tribunal capacity. 40 temporary courtrooms, also known as Nightingale courtrooms, have opened since the outset of the pandemic, intended to increase the volume of court and tribunal activity that can take place in compliance with social distancing.214 The Lord Chancellor announced the opening of an additional 14 Nightingale courtrooms on 16 February 2021.215 A total of 60 Nightingale courtrooms are expected by the end of March 2021.216
• Greater use of remote technology. 20,000 remote hearings have been taking place via the Cloud Video Platform (CVP) each week.217
• Considering new court operating hours. HMCTS have consulted on extended court operating hours, which remains under review by the Lord Chancellor.218

181.We welcome the Government’s investment to increase court capacity to help reduce the backlog. HMCTS worked hard to adapt court buildings after the first lockdown and Nightingale courtrooms have opened at impressive speed. However, despite these efforts, the backlog across jurisdictions remains unacceptably high.

182.We recommend that measures to address the backlog be demonstrably effective, well-funded and implemented urgently. Actions taken to reduce the backlog must also be manageable for those working in the justice system, including judges, court staff and legal professionals.

Criticisms of Government efforts

Absence of clear targets

183.The Lord Chancellor said he was “determined … to manage this case load in a way that these figures come to what we regard as normal positions” but that no target had been set for achieving pre-Covid levels of outstanding cases.219

184.In November 2020, Ms Gemma Hewison, Director of Strategy and Change at HMCTS, said that the outstanding jury trial caseload could only be reduced to pre-Covid levels by March 2023.220 The Lord Chancellor subsequently described this assessment as out of date, stating that it would not be sensible to attempt to predict when HMCTS will reach a given level of outstanding cases “as there are too many variables involved to make any accurate predictions”.221

185.Where targets have been set, HMCTS has not always been able to meet them. In September 2020, HMCTS reported on the progress of its response to COVID-19 in the criminal courts. As part of the recovery plans outlined in the report, 266 jury trials were projected to take place in each week of October 2020, rising to 333 a week in November 2020.222 However, the Crown Court failed to reach these targets, disposing of an average of 193 jury trials per week in October and 230 per week in November.223

186.We welcome the Lord Chancellor’s commitment to tackling the backlog. However, targeting “normal positions” is vague. We are concerned that HMCTS does not have clear targets or deadlines for the recovery of service in the criminal courts. This means it is not possible to assess whether the funding made available to HMCTS is sufficient to clear the criminal backlog, or whether steps being taken in response to the growing backlog are adequate or effective.

187.We recommend that the Government sets out detailed plans for reducing the backlog of criminal, family, and employment cases, including a timeline for implementation.

Ineffective use of new real estate

188.HMCTS is using additional venues to provide increased estates capacity in response to the coronavirus outbreak. These venues have been referred to as ‘Nightingale courtrooms’. They will be used on a temporary basis to ensure as many hearings as possible can continue to take place during the coronavirus outbreak.

189.Media reports have suggested that the Nightingale courtrooms have not been fully utilised. The Times reported that, as of 20 August 2020, only six of the 10 temporary courts proposed had opened. One of them, Prospero House in London, “was operating only two of its three courtrooms during its first week. One opened on one day for less than one hour.”224 Across the court estate it was unclear how the number of open court buildings related to the number of courtrooms in use:

“Court service officials have consistently said that 90 per cent of the court buildings in England and Wales are now open and operating under COVID-19 restrictions. However, they fail to address how many actual courtrooms are open and how many trials are being conducted in them.”225

190.It is difficult to determine how effectively the Nightingale courtrooms are being utilised, as the Government does not break down or publish data on the number of cases heard in Nightingale courtrooms.226 Nor does the Government record how many sitting days or hours take place in Nightingale courtrooms.227 A total of 60 Nightingale courtrooms are expected by the end of March 2021.228 However, as of 11 March 2021, only 24 Nightingale courtroom venues appeared to be open for cases.229

191.Significant investment has resulted in the opening of several Nightingale courtrooms to increase capacity during the pandemic, which we welcome as a solution to reduce the backlog by scaling up court capacity. However, it is unclear whether this additional courts estate is being used effectively.

192.It is concerning that the Government does not publish data showing the number of cases, sitting hours, or sitting days taking place in Nightingale courtrooms. This makes it difficult to assess whether these additional courtrooms are being effectively utilised. Reports from the media suggest that utilisation is well below what might be expected. 60 Nightingale courtrooms are planned by the end of March 2021, yet less than half of these appeared to be open at the beginning of the month.

193.We recommend that the Government be required to explain precisely how they are using the Nightingale courtrooms, how many cases are being heard in each of these new venues, and the factors it takes into account when identifying new venues for additional Nightingale courtrooms.

Health and safety

194.On 5 January 2021 the Lord Chief Justice announced that the justice system would continue to function during the third national lockdown, emphasising the need to “ensure that the administration of justice continues”. He further confirmed that HMCTS would “continue to put in place precautionary measures in accordance with Public Health England and Public Health Wales guidelines to minimise risk. All those attending court must abide by guidance concerning social distancing, hand washing, wearing masks etc. Judges and magistrates will have a role in making sure this happens”.230

195.The effectiveness of the health and safety measures implemented in courtrooms has been criticised. Between 24 November 2020 and 11 January 2021, around 600 court users, judges and staff tested positive for COVID-19.231 This prompted the Law Society of England and Wales to propose a pause of all Crown Court and magistrates’ court non-custody work for two weeks in January 2021 “for all stakeholders in the court process to assure themselves of the safety of attendance and to discuss local measures to ensure safety”.232 The London Criminal Courts Solicitors’ Association advised its members that it was not safe to continue to attend magistrates’ courts: “Our members report that local magistrates’ courts are once again too crowded and applications to appear remotely are being underused.”233

196.On 19 January 2021, Her Majesty’s Chief Inspector of the Crown Prosecution Service said:

“The court service has been saying to date that courts are Covid-safe. Anyone who follows social media and listens to what the Bar and solicitors are saying about going into courts knows that that is not necessarily what they feel … All I can say is that I would not wish to be in court at this time”.234

197.Chris Philp MP, Minister for Immigration Compliance and the Courts, responded to the Chief Inspector’s comments the following day in the House of Commons:

“The hon. Lady cited some remarks by the CPS inspector at the Committee yesterday and I have to tell her, in all candour, that those comments are inaccurate and inappropriate. The proper authorities for determining the safety of our court system are Public Health England and Public Health Wales, not the inspector of the CPS, and they, having looked at the measures we are taking, have found them to be appropriate and found that our courts are Covid-safe … the number of Her Majesty’s Courts and Tribunals Service staff who have tested positive for Covid is in line with the number in the wider population … I hope that reassures witnesses, defendants, jurors, lawyers—anyone using the courts—that our courts are safe.”235

198.However stringent the measures in courts, physical hearings require court users to travel from homes, offices, and prisons to attend. Keeping the courts operating and maintaining face-to-face hearings will involve a degree of risk of exposure to COVID-19.

199.Given the severity of the backlog in the Crown Court and the urgent need to clear it, we recommend that urgent cases and jury trials continue to be heard in a physical setting where no alternative is feasible. The Government must continue to ensure that courts are as safe as possible during the pandemic.

200.We recommend that the Government takes additional steps to encourage and facilitate remote hearings, especially when the risk of infection is at its highest. The decline in the use of the Cloud Video Platform (see paragraphs 73-77) suggests a missed opportunity to keep court users safe by holding more hearings remotely.

Excessive demands on court users and staff

201.Proposals to extend court opening hours were opposed by witnesses representing the legal profession, who said that longer working hours would adversely affect lawyers who already have heavy workloads, particularly those with caring responsibilities.236

202.The Law Society of England and Wales said: “Junior members of the profession may be adversely affected by extended hours as they could be asked to cover early, late or weekend sittings”.237 Particular concerns were raised about courts sitting late into the evening: “We are concerned about the safety of court users when leaving buildings at night, in particular those who may be involved in emotive cases, such as family cases, where proceedings can exacerbate already tense relations between parties”.238

203.Caroline Goodwin QC expressed concerns about the additional strains that late court hours might place on victims in criminal trials, who might be relied on to give evidence: “We have already had discussions with victims’ groups and they are not at all keen on putting additional stress upon victims coming to court at awkward hours”.239

204.The Lord Chancellor said that while he understood the concerns of legal professionals, it was court users who must be prioritised.240 Susan Acland-Hood said that, although “representative bodies are not enormous fans of [extending court opening hours], I think there is work that we can do with the profession to get to a place where we can make this a pragmatic emergency solution to use while we have these backlogs to address”.241 In February 2021, plans for extended court opening hours were temporarily suspended by the Ministry of Justice.242

205.The Government must ensure that it is making the maximum use of existing facilities, and that courtrooms are not sitting idle during core business hours.

206.Before extending court operating hours, we recommend that HMCTS ensure that it is making maximum use of normal court hours, existing court estate and Nightingale courtrooms, as well as avoiding any restrictions on judges sitting.

Further action to address the backlog

207.During our inquiry we considered various proposals to help tackle the backlog of cases. These included: increasing the amount of court time through greater use of Nightingale courtrooms and sitting days, reducing the strain on jury trials, and improving courts data to target further changes and investment more effectively.

Increasing court time

Additional Nightingale Courtrooms

208.Nightingale courtrooms enhance courtroom capacity and will, if used effectively, reduce the backlog. Whilst we welcome the sixty Nightingale courtrooms that will open in response to the pandemic, we draw attention to the fact that the backlog in the criminal courts exceeds half a million. It has been suggested that Crown Court capacity would need to double to return to pre-Covid backlog levels by 2024.243 In the employment tribunal the backlog exceeds 50,000 and the family courts backlog exceeds 10,000. Sixty additional courtrooms are insufficient to address the urgency and scale of backlogs across the justice system.

209.We recommend that further funding be made available to HMCTS to significantly increase the number of Nightingale courtrooms open by the end of 2021.

An increase in sitting days

210.The Lord Chief Justice told us that sitting days have a clear and direct impact on the backlog of cases: “During 2019 … sitting days were substantially cut. The result [was] that the backlog of trials has increased”.244

211.We recommend that the Government further increases the number of sitting days, particularly in the Crown, magistrates’, and family courts and in employment tribunals.

Greater use of the part-time and retired judiciary

212.The more judges or tribunal members that are permitted to sit, the greater the opportunity for cases to be heard. In March 2021 the Government said that it planned to legislate to increase the mandatory retirement age for judicial office holders. The planned reforms will enable existing judges to remain in judicial office until they are 75 years of age (rather than 70), and will enable retired judges to sit after retirement until they reach the age of 75.245

213.We welcome Government proposals to increase the mandatory retirement age for judicial office holders. This will increase the number of judges who are able to sit and, therefore, the number of cases that can take place.

214.We recommend that the Government takes additional steps to further enhance judicial capacity. Shortages in the number of available judges could be alleviated through greater use of recorders in the Crown Court and further investment in the recruitment and training of new judges.

Greater use of technology

215.A small number of criminal trials in Scotland have taken place virtually, transmitted on a secure two-way video to juries of 15 sitting in cinema complexes. Scotland’s second most senior judge, the Lord Justice Clerk Lady Dorrian, has said that this solution “preserves the 15-person jury trial, and will allow us, in time, to raise business in the High Court to a level that will start to address the growing backlog of cases”.246

216.The human rights group Justice has conducted mock trials to test the possibility of implementing fully remote jury trials in England and Wales. In their tests, participants joined the virtual court via video, with the hearing livestreamed to a virtual public gallery.247 Unlike the Scottish virtual trials, mock jurors used their own home computers and were not sat together in a cinema complex. The experiment was evaluated by independent academics Professor Linda Mulcahy, Dr Emma Rowden and Ms Wed Teeder, who concluded that the experiment provided a “convincing case” for rolling out the fully remote juries more widely.248

217.Legislation in England and Wales does not currently allow for the full use of remote facilities in a jury trial. In March 2021 the Lord Chancellor said he wanted to change that and enable remote juries to be deployed. He emphasised that this would be a slow and incremental process, allowing sufficient time for appropriate technologies to be tested and for the judiciary to be consulted.249

218.Many witnesses said that listing a greater number of hearings online and a greater use of virtual hearings could help to reduce the backlog.250 We consider the future application of technology to the courts system in Chapter 5.

219.We welcome the Lord Chancellor’s plans to enable greater use of remote technology in jury trials.

220.We recommend that the Government continues to pilot remote jury trials as a further potential solution to the significant criminal trial backlog.

Altering juries of twelve

221.One of the challenges for the criminal courts during the pandemic has been safely assembling juries of twelve people. Some witnesses said that reducing the size of juries could allow more trials to take place.251 It has also been suggested that defendants with legal representation should be allowed to choose trial by a judge or panel of judges without a jury.252

222.In June 2020, the former Supreme Court President, Baroness Hale of Richmond, expressed her support to the idea of a judge sitting with two lay people instead of a jury.253 Lord Phillips of Worth Matravers, a former Lord Chief Justice and the first President of the Supreme Court, has advocated for judge-only trials in response to the pandemic, but only where this is chosen by the defendant in question: “[a]ny defendant who would like to be tried by a judge only should be allowed that facility rather than waiting years for a jury”.254

223.Reducing the number of jurors required for a trial has also been proposed as a means of enabling more trials to take place in a socially distanced manner. The Lord Chief Justice said in May 2020 that a reduction in juror numbers “would be something well worth thinking about if these difficulties were to continue … Another might be to have trials in the Crown Court with a judge and two magistrates, which of course would be much easier to manage than any jury”.255 However, he said reducing jurors should be seen as a last resort.256

224.In January 2021 the shadow Lord Chancellor and Secretary of State David Lammy MP urged the Government to reduce the number of jurors required in criminal trials to seven in order to reduce the Crown Court backlog.257

225.Jury trials have been altered in the past. During the Second World War juries were temporarily reduced to seven, save for murder and treason. In Northern Ireland, non-jury trials for certain serious crimes were introduced in 1973 and used for political and terrorism-related cases. These “Diplock” courts were abolished in 2007. The exceptional circumstances of the pandemic and the risk to the operation of, and public faith in, the justice system have prompted a renewed consideration of these alternatives to twelve-strong jury.258

226.Other witnesses opposed any change to the jury system as a means of addressing the backlog.259 The Council of Her Majesty’s Circuit Judges said that reducing the number of jurors would make little practical difference to the number of courts able to hold trials and maintain social distancing, and that it would have limited practical benefits in cases with multiple defendants, as social distancing cannot always be maintained in the dock or court cells. The Council added: “Any reduction would make it less likely that the resulting jury accurately reflects the diversity of the population … The issues with regard to lower numbers (on a reduced jury) include the public perception as to the legitimacy of the verdicts and whether such verdicts should be unanimous or by a majority. The lower the number of jurors the stronger is the need for unanimity”.260

227.James Sandbach said that “jury trials are a bedrock of our constitutional and legal architecture, ensuring that people have a fair trial. They should not be put aside lightly”. He proposed remote jury trials as a preferable solution.261

228.The Law Society of England and Wales said:

“Jury trials are a fundamental part of the rule of law and our criminal justice system …. We are opposed to a model where jury trials would be replaced by a judge plus two others. Judges can become ‘case hardened’ and tend to be much easier to persuade that someone is guilty. Juries come to each case with an open mind and hear the evidence, and then make their collective decision without a long experience in dealing with criminals”.262

229.Derek Sweeting QC observed:

“the one stage in the criminal justice process in England and Wales where members of BAME groups appear not to be treated disproportionately is when a jury reaches a verdict by deliberation. In other words, statistically, you are no more likely to be convicted by a jury if you are black than if you are white. In fact, the study says it goes the other way. Now is not the time to be interfering with a fundamental right which underpins our system. As soon as you start taking a chunk out of it, you are doing damage to it, and we should avoid doing that”.263

230.Carol Storer said that trial by jury “ensures that ordinary people are directly engaged with the justice system”.264

231.Giving evidence to us in July 2020, the Lord Chancellor appeared open to reducing the number of jurors usually needed for a Crown Court trial as one possible solution to the backlog. The Government would consider reducing the number to “nine jurors, with a minimum of seven, replicating the rules about majority verdicts on juries of 12”.265 In the intervening months the notion of reducing the size of juries was dropped. In January 2021, justice minister Lord Wolfson of Tredegar QC appeared to reject any reduction in the number of jurors:

“Trial by jury is a cornerstone of the criminal justice system in this jurisdiction. With the support of Public Health England and Public Health Wales, we have made adjustments to more than 290 court rooms and jury deliberation rooms so as to facilitate trial by jury. Reducing the size of the jury is therefore unlikely to free up an additional amount of space for jury trials.”266

232.Any change to the jury system, whether by allowing defendants to choose judge-only trials in serious cases, or by reducing the number of jurors required for a Crown Court trial, would fundamentally alter a core element of our criminal justice system. Such changes could only be justified as a means of addressing the backlog if there was no other way to return to pre-pandemic levels of outstanding cases in the Crown Court.

233.The jury system should not be altered without full parliamentary debate preceded by evidence on the potential impact of changes on case outcomes, access to justice and public perceptions of the criminal justice system.

Alternative dispute resolution

234.One method of reducing the volume of civil cases in the courts system, and therefore the case backlog, would be greater use of alternative dispute resolution—where legal disagreements are resolved out of court.

235.The Employment Lawyers Association advocated greater use of alternative dispute resolution procedures to assist with the Employment Tribunal backlog, such as “more proactive and focussed conciliation” in the early stages of a claim being issued: “[a]n initial two hour conciliation with the parties may lead to early settlement in more cases”.267 Judicial mediation was posited as a potential solution for “cases which might otherwise require long listings and extensive and expensive preparation”.268 Professor Susskind also said that alternative dispute resolution could enable disputes to be resolved more efficiently out of court.269

236.Greater use of alternative and online dispute resolution could reduce workload in the civil courts and thereby reduce the backlog of civil cases both in present circumstances and in the future. However, we remain concerned about those for whom financial barriers may make alternative dispute resolution an unaffordable solution.

237.We recommend that HMCTS facilitates and encourages greater use of alternative dispute resolution in appropriate civil cases, subject always to the condition that access to justice is secured through its use.

Data-driven solutions

238.Some witnesses said that in order to tackle the backlog greater research was needed to understand how well the courts system was operating and to target resources most effectively.270 We consider this matter and other issues related to courts data in Chapter 4.

239.It may not be possible for the Government to target a fixed number of outstanding cases across all jurisdictions whilst the pandemic continues.

240.We recommend that the Government sets out clear plans, both short-term and long-term, for addressing the backlog in all jurisdictions, along with timelines and targets for implementation. Clarity is necessary to facilitate scrutiny of the adequacy of the Government’s response and to restore faith in the justice system.

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