Solicitor Rubin Italia examines the court backlog in Law360

Solicitor Rubin Italia argues that proper funding is required to tackle the backlog facing UK courts, in Law360.

Rubin’s article was published in Law360, 5 May 2023, and can be found here.

Despite former Secretary of State for Justice Dominic Raab’s promise to “strive with every sinew” to reduce the U.K. crown court backlog to 53,000 cases by 2025, recent figures from the Law Society of England and Wales, released on April 13, reveal that the number instead rose by 6% from February 2022 to February 2023.[1] For those of us toiling at the coalface, the news came as little surprise, as the criminal justice system continues to be battered by a perfect storm brought about by several negative factors.

While Raab last year sought to use the Criminal Bar Association of England and Wales’ strike as a preemptive reason should his target be missed, the real fault for the backlog continuing to rise is the government’s ongoing reluctance to properly fund the court system.

The refusal to increase spending to adequate levels has led to an exodus of criminal lawyers, as well as to defects in essential IT systems, both of which have hamstrung the smooth and efficient running of the courts.

As part of HM Courts & Tribunals Service’s court reform program[2] launched in 2016, the Ministry of Justice has spent hundreds of millions of pounds on a flawed overhaul of the criminal courts’ IT infrastructure — at a time when the courts are already at breaking point due to funding shortfalls.

The IT system, known as Common Platform,[3] was brought in as a new, adaptable upgrade to existing infrastructure, and has been plagued by defects[4] since its launch.

Unless it is significantly improved, it is inevitable that the case backlog will continue to rise to the detriment of all stakeholders in the criminal court system and the public at large.

Common Platform contains, in theory, all of the details of each case so that lawyers for the prosecution and defense, as well as the court, can all access the information remotely. While this aim is on occasion achieved, in far too many other cases the data remains inaccessible due to technical flaws.

The IT help desk, which is supposed to swiftly deal with such issues, is often unable to assist, and instead refers lawyers to the Crown Prosecution Service, causing further delays and hampering the courts’ efficiency even more.

The one piece of IT that currently works well is the Crown Court Digital Case System, although the Ministry of Justice is considering scrapping it in favor of the currently faulty Common Platform.

While Common Platform has been designed with agile development in mind, the Ministry of Justice’s guidance explaining that the system is built to adapt to user experiences and demands, scrapping existing systems in favor of a costly and defective alternative, seems counterintuitive.

Compounding the IT issues is the fact that court buildings are poorly maintained, often leading to cases being delayed while courts are closed for urgent maintenance.

Leaky ceilings, broken heating and similar problems can lead to last-minute closures of courtrooms, with the resulting postponement of cases due to be heard piling even more pressure on court staff as they attempt to deal with the backlog.

In such demoralizing circumstances, coupled with the government’s refusal to adequately respond to wage demands, it is little wonder that so many criminal lawyers are leaving the profession or moving to practice other areas of law.

Current rates paid are seen by many prosecuting and defending counsel as insufficient to sustain a progressive career path, and potential new recruits are similarly deterred, threatening the survival of the profession should the situation persist.

As a result of the staff shortage, it is often almost impossible to recruit a duty solicitor due to unavailability, leading to yet more trial delays at a time when demand for lawyers is further heightened by the efforts to reduce the backlog of cases.

All of the above is, of course, set against a backdrop of the pandemic and its aftereffects, which made an already bad situation far worse — ensuring that cases that were already backlogged were put back even further.

The Legal Aid Agency, like all government bodies, took too long to respond to the crisis and its slow reaction continues to have a knock-on effect throughout the court system.

When Raab outlined his plans to cut the case backlog, he claimed that the government was already tackling the problem by way of recruiting extra judges, providing further funding and utilizing nightingale courtrooms, super courtrooms and remote hearings.

He also pointed to increased sentencing powers given to magistrates, although, to date, those powers have not been used by most, thus negating any hoped-for positive effect on reducing the backlog.

The list of solutions proposed by the government has unfortunately not been enough, as the latest data conclusively proves. The Law Society has called for far tougher action to address the interminable backlog of cases, echoing the dissatisfaction of so many in the profession.

That a government supposedly committed to law and order will not properly support a functioning criminal justice system is a demoralizing state of affairs, and the societal effects continue to be felt across the country.

Defendants languish in custody while their trials are delayed or wait to be listed at all, while victims of crime are often faced with months or years of waiting for justice to be served through the courts. Public confidence in the criminal courts is fading fast, and urgent action must be taken to restore faith that the system can be made fit for purpose.

Until the government acknowledges the scale of the problem, there is little prospect of change any time soon.

At present, there appears scant political will to deploy the resources so desperately required to steady the sinking ship, despite all of the evidence on display. Tokenistic efforts by ministers have made few improvements so far, meaning that more powerful measures are the only answer.

While money is much needed, sense is too, and those attempting to tackle the problems have to listen to the needs of those working in the system to deliver effective solutions.

The Ministry of Justice’s rollout of Common Platform is emblematic of the underlying issues within the court system and the bodies tasked with making improvements.

As such, the chances of the government meeting its backlog reduction targets by 2025 remain remote, and morale among court staff, lawyers and other users of the criminal justice system continues to plummet.

It is crucial that Alex Chalk, the new secretary of state for justice, learns from the mistakes of his predecessor, and ensures more is done to alleviate the pressure caused by the court backlog, so the system can be pulled back from the brink of collapse.

[1] https://www.lawsociety.org.uk/contact-or-visit-us/press-office/pressreleases/government-set-to-miss-target-to-reduce-courts-backlog.

[2] https://www.nao.org.uk/press-releases/progress-on-the-courts-and-tribunals-reformprogramme/.

[3] https://www.gov.uk/guidance/hmcts-common-platform-view-or-manage-a-case.

[4] https://www.bbc.co.uk/news/uk-62722855.