Defendants, victims including teenagers, and witnesses are having to wait up to four years from the time of an alleged offence to the case reaching crown court trial because of delays caused mainly by Covid.
Lawyers, who are struggling to keep the criminal courts in England and Wales functioning through the pandemic, are calling for more socially-distanced, emergency courts to tackle the problem of justice being postponed.
They also blame past government cuts that closed hundreds of courts and restricted judges’ sitting days for the vast backlog. The latest, mutant strain of the coronavirus is likely to intensify pressure on the criminal justice system.
The number of outstanding crown court cases has risen to 53,000; the caseload in the magistrates court is above 400,000. Those figures represent increases of more than 40% compared with the previous year.
The Ministry of Justice says the backlog in the magistrates courts is beginning to reduce. It has created more than 30 emergency, Nightingale courtrooms and installed plexiglass screens in a further 400.
Numbers alone do not reveal the extraordinary difficulties in delivering belated justice. Some question whether witnesses can recall events satisfactorily so many years after the event.
Anonymised examples of delayed cases have been collected by the London Criminal Courts Solicitors’ Association (LCCSA). They include:
An alleged serious sexual offence from January 2018 involving a traumatised teenage victim. The suspect, also a teenager, is of previous good character. The court case started in early 2020, with the trial now due February 2022. Will deal with issues of consent. Victim and defendant having to recall events from four years earlier; meanwhile hanging over their lives.
An alleged five-person affray in south London captured on CCTV in September 2017. Although defendants arrested soon after charges not authorised until April 2020. No trial date set. Arguments of abuse on grounds of delay rejected.
An assault allegedly committed in September 2018. Defendant not charged until a year later. Trial now listed for June 2022. Application to stay prosecution as abuse of process denied.
Defendant on bail for possession with intent to supply class A drugs. Offence allegedly committed in December 2018. Crown court trial listed for summer 2022.
Trial on a charge of possessing an offensive weapon now scheduled for August 2022 at east London court. Offence allegedly committed in 2018.
Legal challenges over delays could be launched. Solicitors are examining the test of Dyer v Watson, a House of Lords ruling from 2002 which establishes a precedent. Article 6 of the European Convention on Human Rights also guarantees the right to a fair trial including it being held within a reasonable time.
How far ahead trials are being listed is disputed. The justice secretary, Robert Buckland QC, said he knows of none beyond 2022.
James Mulholland, QC, chair of the Criminal Bar Association (CBA), maintains some are being put down for 2023; other lawyers say courts have stopped giving trial dates far into the future in the hope that spaces become available before then.
A further row is brewing over Ministry of Justice proposals for longer, Covid operating hours, which it believes will enable courts to handle more cases each day.
Solicitors question its effectiveness, seeing the scheme as an imposition of longer, anti-social hours. The CBA, which represents barristers in England and Wales doing criminal work, is threatening industrial action and has asked the equalities watchdog to investigate whether it discriminates against women.
Criminal solicitors also fear they are working harder for less money because a significant proportion of hearings now are not full trials but pre-trial reviews. Solicitors and barristers are paid at the completion of a trial.
Mark Troman, president of the LCCSA, said: “I have heard that some crown courts are not listing cases beyond a certain point – around late 2022 – in the hope of finding earlier slots. They have been closing crown court buildings for years.
“There’s no evidence to suggest they will get through more cases by using extended operating hours. Most cases take twice as long when you put them through a Covid court.”
David Greene, president of the Law Society which represents solicitors in England and Wales, said: “After years of underfunding and cuts, there was already a significant backlog in the criminal courts which has been exacerbated by the pandemic.
“This means justice is being delayed for victims, witnesses and defendants, who have proceedings hanging over them for months, if not years, with trials now being listed for 2022.”
A CBA spokesperson said: “The longest delays are to defendants on bail but those can still involve serious cases like sex offences. There are still fewer than 150 crown court rials each week. Dozens of serious cases involving multiple defendants are not even being given trial dates.”
A spokesman for the judiciary said the increase in pre-trial hearings was in order to establish whether cases could be resolved without a trial: “This may be because there is a plea of guilty or because the CPS opts not to proceed.
“ … These pre-trial hearings allow all issues that might prevent a trial going ahead on the day to be dealt with in advance…. ”
A spokesperson for HM Courts and Tribunal Service said: “The magistrates’ backlog continues to fall and our crown courts list thousands of cases each week, including more than 250 jury trials.
“To drive this recovery further we are investing £110m in a range of measures to boost capacity, such as recruiting 1,600 new staff and opening more Nightingale courts.”