How can the backlog be addressed?

It is no secret that the effects of COVID 19 have had a substantially detrimental effect on the “flow” of cases through the Crown Court. Prior to the lockdown, approximately 39,000 cases were waiting to be heard; now, five months on, there are well over 41,000 by most estimates. Some trials are being listed as far off as 2022.

Such a delay will have a significant effect on defendants, complainants, and witnesses, in respect of recollection and adding to the already stressful experience of awaiting trial (and indeed COVID 19 itself). Custody time limits for defendants remanded prior to trial will also become problematic, as already seen. There is both an evidential and human cost to the situation.

How to manage this backlog must be at the forefront of consideration not just in the Ministry of Justice but for anyone involved in the criminal justice system.

There are in my view three potentially acceptable, and not mutually exclusive, actions that can be taken:

• Create more court time;
• Change the composition of inbound trials; and
• Put in place measures to maximise the current courts’ time.

Individually or collectively, these actions will go some way to addressing the issue at hand; the more that run concurrently, the greater the impact on the backlog. However, there is a fundamental point underlying all three – one which was self-evident even prior to the COVID-19 pandemic and one which the government must engage with as a matter of priority: funding.

The first point concerns creating more court time, and there are three components to consider:

1. Much has been made of the Nightingale/Blackstone courts (holding trials in buildings not normally used for court proceedings). Although pragmatic conceptually, not nearly enough appropriate venues have been identified. The number is in the double digits, rather than the required hundreds, and they are not being filled with trials anyway.

2. It has been mooted that more judges should be permitted to sit, opening up the opportunity for more trials to take place. This could be achieved, for example, by training more judges, allowing recorders to sit once again, or permitting recently retired judges to return on a temporary basis.The primary issue with this suggestion is one of location; it matters not if judges are available to sit, if there are insufficient facilities in which they might hold court. However, a cross-pollination of this suggestion with a development of the Nightingale/Blackstone courts might bear fruit.

3. It has also been suggested that court time be extended, whether by sitting substantively over weekends or returning to the extended court hours put in place in 2011. This option has been unpopular for obvious reasons, in that it would significantly affect the work/life balance of almost all involved in the running of the criminal justice system. Furthermore, it would place those with caring commitments at a real and unfair disadvantage; they simply would not be able to engage in the same manner as those without such commitments.

Next, consider the composition of crown court trials. Eleanor Fargin has written an excellent article on the subject, addressing whether crown court trials might function with fewer jurors or as judge-only trials:

https://www.pumpcourtchambers.com/2020/05/07/judge-alone-trials/

One other option put forward for adding efficiency to the composition of crown court trials is that of the trials occurring with a judge and two lay members sitting alongside them. Although there has been some support by a small but distinguished section of senior barristers, there has otherwise been an overwhelmingly negative response from the legal profession to this suggestion.

Addressing the final action (maximising current courts’ time), it has been reported that only 24 of 80 crown courts in England and Wales are suitable for jury trials with social distancing measures. Yet even were these numbers to (somehow) rise, the implementation of one-way walking systems, the wearing of adequate PPE, and the introduction of Perspex screens in court would all themselves pose problems.

1. The wearing of face coverings when giving evidence has long been controversial, with different approaches taken around the world. If masks were not required to be worn, the Perspex screens (in front of a witness and elsewhere in the court) would require regular and vigorous cleaning – which would also eat into potential sitting times. I will say nothing of the matter of public access to justice, as the word limit approaches.

2. Perhaps a solution lies in virtual, or part-virtual, trials. Ezra MacDonald has written a comprehensive piece on how civil and criminal courts address witnesses giving evidence over a video-link, and how the relevant case law conflicts between and within jurisdictions:

https://www.pumpcourtchambers.com/2020/04/29/remote-hearings-and-witness-evidence/

One practical difficulty however is that a video link is at the mercy of a potentially faulty internet connection, particularly if a witness is to give evidence from home rather than travel to court. A confident witness can appear to be guarded in their answers, simply because of a delay or “freezing” of the link, or due to unfortunate talking-over of questions. On the other hand, the credibility of a potentially untrustworthy witness could be incorrectly argued to be simply down to technological issues, if they were to evade responding to a difficult question.

Having considered all the above, it must be recognised that there is an elephant in the room – one standing there long prior to the COVID-19 pandemic, and which may prevent any or all of the above from being introduced. The criminal justice system was remarkably under-funded and under-equipped prior to the start of 2020; the situation has not improved. It is clear that, to address the backlog effectively and for a sustained period of time, the government must invest in the creaking system.

The message for criminal barristers, the judiciary, and court staff appears to be similar to that of the ill-fated Boxer in Orwell’s Animal Farm: “I will work harder”. An opportunity to run from deep at a broken field? Perhaps. It all depends on how “broken” the field is.

Ed Wylde, (Pupil)