The recent announcement that Sir Brian Leveson will lead a root and branch review of the criminal courts comes at a cross-roads for our justice system. With the backlog at the Crown Court reaching an unprecedented 73,105 cases (almost double the pre-pandemic figure), the need for reform is very urgent. This article will explore the implications of the planned review, incorporating recent criminal court data and a summary of Lord Justice Auld’s 2001 recommendations on dealing with court backlogs. Additionally, it will mention the acute shortage of criminal barristers, with commentary from key legal figures.

Recent Criminal Court Data

The latest court statistics, covering July to September 2024, paint a depressing picture of the current state of the criminal justice system. The open caseload in magistrates’ courts has reached 333,349, an increase of 22% compared to the previous year. Similarly, the Crown Court’s open caseload has reached 73,105, the highest since 2016 and there is every indication of a further substantial increase. I am surprised if one of my trials retains its original listing and adjournments of trial ready cases can often be for a year or more. The bottlenecks are obvious to anyone with significant experience in the criminal justice system.

The average age of an open case in the Crown Court has seen a slight decrease, yet the average period required to conclude a case remains well above pre-COVID levels. Ineffective trial rates have stabilized but are still higher than pre-pandemic levels. The data shows 25% higher in the Crown Court and 22% in magistrates’ courts.

Commentary from Media Sources

Media coverage has highlighted the many issues contributing to the backlog. The Law Society Gazette notes that the review by Sir Brian Leveson will consider the establishment of “intermediate courts” for cases too serious for magistrates but not serious enough for the Crown Court. A concept along these lines was proposed in Lord Justice Auld’s 2001 blueprint. It aimed to streamline case management and reduce delays, but political considerations prevented sufficient uptake.

The Guardian underlines the potential impact on juries, with the review exploring options potentially leading to fewer jury trials in favour of judge-led hearings. The concept already exists upon appeal against conviction from the Magistrates Court, where the re-hearing is decided by a judge and two magistrates, rather than a jury. This shift could expedite matters but raises concerns about the removal of a defendant’s right to a jury trial, which is an entirely different conversation.

Lord Justice Auld’s 2001 Recommendations

Lord Justice Auld’s 2001 review of the criminal courts advanced several measures to reduce backlogs and improve efficiency. The primary recommendation was a Unified Court Structure. It suggested unifying Magistrates’ courts and the Crown Court into a single structure with three divisions: Crown, Magistrates, and a new Intermediate or District Division. This would allow for better allocation of cases based on their seriousness.

The Intermediate or District Courts would see a judge and two lay magistrates handling cases too serious for summary jurisdiction, but not justifying a full Crown Court trial.

Secondly, Lord Justice Auld recommended early engagement between prosecution and defence lawyers to identify and address relevant issues before trial. It included better training for those responsible for charging decisions, as well as a review process for inappropriate charges.

To an extent, the relatively recent Attorney General’s guidance on pre-charge engagement encourages early identification of issues, but enthusiasm for the process depends upon which police force one is dealing with. There are no real sanctions for failing to engage and police officers often view written representations from the defence as something else they don’t have time to deal with. Legal Aid is available to the defence for pre-charge engagement, but it is a very low fee and is rarely claimed. In reality, suspects who can afford to privately fund their representation receive a better service during the investigation stage.

The Magistrates Court saw the introduction of the Common Platform in recent years. After a lot of teething problems, it provides quite a useful platform for communication between the court, prosecution and defence. It certainly provides a framework around which a Magistrates Court trial can be properly prepared, but sanctions for lack of preparation are rare, save for isolated wasted costs decisions. Even then, most of the wasted costs are awarded against the Crown.

The plea and trial preparation hearings (“PTPH”) at the Crown Court are more structured than they used to be. The prosecution and defence are required to consider any number of issues in advance of the hearing and during the stages following the PTPH, but the standard directions have been in place a good many years and have not solved the problem.

The Auld review also recommended Alternative Dispute Resolution, including greater use of fixed penalty notices and conditional cautioning to divert minor cases from court proceedings. Community resolutions have been gaining popularity over recent years, but they still aren’t embedded in the culture for, I think, two main reasons. Victims want to see perpetrators punished and ADR doesn’t always achieve that objective. Secondly, re-offending following a community resolution often leads to criticism of the police or CPS decision not to proceed to charge. There is also a political factor. The way in which data is interpreted means that community resolutions are not viewed in the same way as crimes which have been detected, charged and convicted at court.

Finally, the Auld review advocated the streamlining of trial preparation. This involved enhancing the role of the Crown Prosecution Service in deciding charges and improving disclosure processes to ensure timely and sufficient case preparation. Disclosure management processes and workflow within the CPS have certainly developed since Lord Justice Auld produced the review. The prosecution’s Disclosure Management Document is now a regular feature in Crown Court cases, but it is up to the defence and the court to keep the prosecution on track in terms of disclosure. With reference to the defence, representations are regularly made when it comes to increasing page court and, as a result, the graduated fee received from a Legal Aid order. Keeping pressure on the prosecution in other respects is not as common.

Shortage of Criminal Barristers

The shortage of criminal barristers is a significant factor exacerbating the backlog. The Criminal Bar Association (CBA) has, for some time, highlighted the departure of experienced counsel from the criminal bar due to inadequate remuneration and poor working conditions. Mary Prior KC, Chair of the CBA, noted that nearly half of barristers with 8-12 years of experience have left the profession, leading to many cases being postponed due to the unavailability of prosecution or defence advocates. I have experienced this with many of my own Legal Aid cases. One notable recent example was the postponement of a serious trial involving multiple vulnerable victims. Alternative counsel for the trial could not be found within chambers or at seven other chambers when enquiries were made. As a consequence, the trial was adjourned for over one year. Another one of my cases has been under investigation for four years and a final decision is not on the horizon. It has been the subject of questions in parliament. Several others have been the subject of investigation for four, five and six years before being discontinued; investigations which will have been at great expense to the taxpayer, but simply ran out of steam.

The Attorney General and the Lord Chief Justice have both acknowledged the crisis. The Attorney General has called for substantial investment in the criminal justice system to retain and attract the right talent. The Lord Chief Justice has emphasized the need for systemic reforms to ensure the sustainability of the profession and the effective administration of justice. All stakeholders have a part to play, from the arresting officer and the defence advocate to the crown court judge and the probation service amongst many others. One could easily name fifty factors bearing substantial influence over bottlenecks in the system.

Conclusion

Sir Brian Leveson’s review represents an extremely important opportunity to address entrenched issues within the UK criminal courts. By drawing on the recommendations from Lord Justice Auld’s 2001 blueprint, addressing the critical shortage of criminal barristers and properly identifying the real bottlenecks, the review will hopefully create a more efficient and fair justice system for stakeholders and – of course – the taxpayer. The success of these reforms will depend on the government’s commitment to implementing bold changes and investing in the legal profession to ensure that justice is delivered promptly and effectively.