Solicitor Advocate Abigail Ashford examines the crisis faced by the criminal courts in Solicitors Journal.

Abigail’s article was published in Solicitors Journal, 6 June 2022, and can be found here. 

As the nation celebrates the Platinum Jubilee, it is perhaps worth recalling part of the oath which the young Queen swore at her coronation in Westminster Abbey. In June 1953, the Archbishop of Canterbury asked her: “Will you to your power cause law and justice, in mercy, to be executed in all your judgments?” The newly crowned monarch duly responded, “I will”.

In practice, the judgments referred to are those of Her Majesty’s judges: her delegates for the purpose of executing law and justice in our courts. But, incrementally, over the past 70 years of her reign, and in particular during the course of this century, the UK’s criminal justice system (CJS) that once shone so brightly, has reached the point where it is no longer the envy of the world that it used to be. Whereas this system was something that every British citizen could be proud of a generation ago, it has gradually diminished in the public consciousness as the day-to-day operation, efficiency and efficacy of the criminal courts continues to be eroded.

What was the cause?

The primary cause of this sorry state of affairs is self-evident: a systematic decimation of the CJS through years of chronic underfunding thanks to the political and economic choices of successive governments. Inevitably, this has resulted in it becoming characterised by delay at every stage in the process – something which has been a cause of widespread concern to legal practitioners for more than a decade.

In 2018, a Justice Committee report referred to the collapse of a number of high-profile criminal cases as: “symptomatic of a criminal justice system under significant strain.” The report added: “There is compelling evidence of the fragility of the Criminal Bar and criminal defence solicitors’ firms” and concluded that underfunding of the CJS not only threatens its effectiveness but “undermines the rule of law and tarnishes the reputation of the justice system as a whole.”

These difficulties, acknowledged by a Parliamentary committee, were brought into even sharper focus by the pandemic, which simply exacerbated the scale and scope of the problem, and for a time, brought it to wider public attention. Post-pandemic, delays continue to affect the overall integrity of the system, as some parts of the CJS have been unable to respond quickly enough in order to reverse the downward trajectory and restore performance to pre-pandemic levels, however inadequate they may have been.

The scale of the challenge across the CJS is neatly summarised in a Criminal Justice Joint Inspection (CJJI) report published by HM chief inspectors in May: “The public expects the Crown Prosecution Service (CPS), police, prisons, probation and youth offending services to work seamlessly, efficiently and effectively to prevent and respond to crime, and in so doing to protect them. We have found that justice is delayed, denied or disrupted in far too many instances.”

The state of the courts

The problem is equally acute in the court system. Since the first covid-19 lockdown in March 2020, the total number of serious cases that are now waiting more than a year before they are dealt with in the Crown Courts across England and Wales has continued to swell.

According to the National Audit Office (NAO), the Crown Court backlog increased by 23 per cent in the twelve months leading up to the pandemic and has increased by a further 47 per cent since then. The increased backlog is set against a backdrop of increasing demand on the CJS: between 1 October 2020 and 30 September 2021, the overall crime rate in the UK increased by 14 per cent compared with two years previously.

In March, the Public Accounts Committee (PAC) published a report that questioned the: “meagre ambition” of the Ministry of Justice in reducing the number of these outstanding cases, which totalled 58,818 in May 2022, by: “less than 8,000 by March 2025.”

The human cost

Beyond the depressing statistics collated by assorted governmental bodies and the heartfelt sentiments of profound concern expressed by numerous legislators, there is unfortunately, a much more tangible human cost. The PAC report referred to: “victims of rape and serious sexual offences are facing unacceptable delays to justice” which: “compound and extend their suffering and lead to too many cases collapsing.” Such victims can, quite understandably, lose faith in the system and withdraw their support for proceedings.

For most defendants, justice is also being delayed, denied or disrupted in far too many instances. Many of them are youths (young offenders aged between 10 and 17), or otherwise vulnerable individuals. These defendants are waiting with their lives in limbo, while a Sword of Damocles hangs over them. As they endure the stress of a protracted investigation, often for many months due to backlogs in police investigations, or a lack of Court time post charge, they are unable to make plans since their future remains uncertain.

Awaiting developments

The situation was also pretty bleak for those who were awaiting trial in custody during the pandemic. Restrictions then in place resulted in them being confined to their cells for almost 23 hours a day, with limited, if any, access to education, support, or visits from family or friends. This affected not only their ultimate rehabilitation, but also their wellbeing, particularly in terms of mental health.

Sadly, reports suggest that the situation has since been slow to improve, even as lockdown measures outside have been relaxed. We have a client who is awaiting trial having spent more than two years on remand. His mental health has now deteriorated to such an extent in that time that medical professionals have expressed grave concerns about his risk of suicide. Another client had to wait for nine months before the court could find time to deal with his sentence once he had pleaded guilty.

Loss of confidence

When the CJS is so dependent on the willing participation of the public, unnecessary delays serve to undermine public confidence in it. The length of time that a case may take to conclude has other adverse consequences too. Regrettably, it is now often a factor in some clients’ decisions about the direction of their cases once court proceedings are instigated. Inevitably, memories of witnesses for both the prosecution and the defence fade over time which can significantly impact on the evidence that they give at trial, if indeed they can bear to remain engaged with the process.

The fragility of barristers and criminal defence solicitors, referred to by the Justice Committee in 2018, is another factor. Prosecutors and defence lawyers are under immense pressure to ensure that their cases are managed properly and effectively without anywhere near the proper level of remuneration for undertaking such an important and responsible task.

Fighting to survive

Since 1996, criminal legal aid solicitors have endured a 50 per cent pay cut in real terms, according to a government-commissioned review, published last year by the the London Criminal Courts Solicitors’ Association in its submission to the Independent Review of Criminal Legal Aid’s call for evidence.

Meanwhile, the Bar Council submitted a paper to the Treasury in October 2020, which revealed that, after their essential expenses have been paid, publicly funded criminal barristers typically earn less than £13,000 per year, pre-tax, during their first two years of practice. This equates to just £6.25 per hour for a 40-hour week. According to The Bar Council’s spending review submission, annual justice spending per person in England and Wales fell by almost 30 per cent in real terms between 2010 and 2019.

No return?

The current crisis is so bad that the criminal Bar has been forced to take action for a second time in recent years, through a “no returns” policy. In April, barristers agreed not to accept cases that are returned by colleagues who have a diary clash as a response to: “unacceptably low” legal aid fees. The strength of opposition was evident when 94 per cent of Criminal Bar Association (CBA) members voted in a ballot to no longer accept return work.

The repeated warnings from right across the legal profession were most recently echoed in the recommendations contained in Sir Christopher Bellamy’s report, the Independent Review of Criminal Legal Aid (CLAIR), which was published last December. But the government’s limited response to it has been sparse as new investment and cash injections remain wholly inadequate.

What lies ahead?

Although some measures introduced to mitigate the impact of the pandemic within the criminal justice system have been welcome, such as the widespread introduction of CVP or remote hearings and greater use of video links with those in custody, the overall impact in reducing delay has been insufficient on their own.

The court closure programme shows no signs of abating. Numerous Crown Court and Magistrates Court centres have been closed over the past decade or so and those that remain are frequently in need of major repair. There are simply not enough courts, judges, prosecutors and lawyers to begin to tackle the backlog in any meaningful way without urgent and significant levels of investment being made.

The unsustainable cuts to funding over such a long period of time have resulted in experienced and skilled professionals abandoning the system, and law firms being unable to sustain themselves, leaving little or no access to legal assistance in some areas. Criminal law is at risk of becoming an ‘ageing’ profession. Alongside the low rates of pay, especially within the criminal defence community, there are genuine concerns that the working conditions for criminal practitioners are so poor that it has become an unattractive option for those who might be considering the legal profession as a career.

Future imperfect?

If these trends continue without significant intervention to ameliorate the situation, then we may well be set for a return to a world in which Criminal law is accessible only to the few who can afford it. This would be a step back to the Victorian era, rather than extending the new Elizabethan era that promised so much 70 years ago when legal aid was introduced and then rolled out for those who needed it. As adequate legal aid funding continues to beat a retreat, so too does the promise of this country having a criminal justice system that is genuinely fit for purpose.

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