The criminal justice system in England and Wales is facing a backlog of 40,000 criminal cases, which will not be solved even if all crown courts are brought into service under physical distancing rules, the Criminal Bar Association has warned.
The scale of the challenge to the justice system posed by the coronavirus pandemic is becoming apparent, as virtual hearings transform business in the higher civil courts but trigger alarms about the fairness of remote proceedings in the family and lower courts.
Reliance on video technology is accelerating the government’s pre-existing £1bn court modernisation programme but also throwing up questions about where it is appropriate: many unrepresented claimants do not have super-fast broadband or are among those categorised as “digitally excluded”.
Even before the pandemic, some criminal cases were being listed more than a year ahead due to austerity cuts in the number of allocated judges’ sitting days. With jury trials suspended, the backlog grew at 1,000 cases a month.
The justice secretary, Robert Buckland, is considering whether to rent commercial premises – dubbed “Nightingale courts” – with space to spread out jurors, lawyers and court staff.
Caroline Goodwin QC, the chair of the Criminal Bar Association, said: “The restrictions imposed mean the courts cannot keep pace with that backlog, no matter how innovative the thinking is.
“Social distancing measures currently required mean that even if we opened up all of the available crown courts, we would still at best only have half of all court rooms in use for hearings. A single trial presently requires three courtrooms. One for the judge, jury, witnesses, counsel and defendant, a second court for the public and the third for the jury …
“With deployment of even three-quarters of all courts for actual hearings, [it] would only take us back, at worst, to where we were at the start of the year with the backlog growing by up to 1,000 cases a month, and at best to simply maintaining the current, higher, backlog.”
In December, the crown court backlog was 37,500 cases. Goodwin added: “The lord chief justice this month estimated it was now around 40,000. Only when social distancing comes down from 2 metres to 1 metre can all the available courts be used for hearings.
“Once we have the existing crown court estate open and functioning to the maximum and operating within safe social distancing parameters, then HM Courts and Tribunals Service (HMCTS) may want to consider using other court buildings or other buildings, not presently part of the court estate.”
Labour’s shadow justice secretary, David Lammy, told the Guardian: “Unless we can really up the pace of bringing particularly criminal and some civil law matters, where vulnerable people need to be heard, we are heading for a very serious backlog which this generation of lawyers has never seen.
“I have been urging [the Ministry of Justice] to co-opt buildings … It seems clear that universities will not be returning before the late autumn. Why are we not co-opting those huge buildings to be temporary courts? There’s a lack of urgency from the government.”
The Conservative former justice minister, Lord Faulks, warned that “justice delayed is justice denied”. He raised the prospect of trial by judge rather than jury in some cases.
“There’s already a big backlog because the Ministry of Justice (MoJ) decided to restrict the number of sittings days,” he told the Guardian.
“I personally wonder whether we are not a bit too wedded to the concept of trial by jury … For a long time there’s been a view that fraud trials are really unsuitable for trial by jury. There are different ways you could do it; you could have a judge with a couple of magistrates.
“People may say it’s terrible, but if judges [deliver a verdict] they have to give reasons and therefore those reasons are apparent. It makes the process of making an appeal much clearer. You can see what’s under the bonnet.”
There are attempts to reduce caseload pressure. Deputy chief constable Sara Glen, of the National Police Chiefs’ Council, has suggested forces consider whether more cases should receive a caution.
The director of public prosecutions, Max Hill QC, on Thursday denied there has been “decriminalisation” of offences but said cases were being delayed during the crisis. However, he supported calls for forces to consider whether lesser offences which are charged by the police might be dealt with by cautions rather than court appearances.
The lord chief justice, Lord Burnett of Maldon, told MPs on Friday: “We have been able to keep a lot of working going that I know in other jurisdictions [abroad] have come to a halt … The volume of remote hearings has resulted in us taking three steps forward.
“I suspect [after the crisis] we will take a step back.” He also warned that the administration of justice had been “underfunded for years and years and the consequences are coming home to roost …”
A HMCTS spokesperson said: “A huge amount of work has gone into increasing the use of video and audio technology to keep courts running during this unprecedented crisis. Measures to increase hearings and help reduce the number of outstanding cases are being considered and these will be set out in due course.”