Court cases resume but backlog persists in England and Wales

As new jurors head into London’s Old Bailey on Monday for the first time in two months, it might appear that the court system is beginning to return to normal after the pandemic.

Jury trials were halted in late March following concerns about the virus sweeping through courtrooms where jurors, defendants and lawyers are packed closely together for hours. The resumption of trials will be gradual.

London’s Old Bailey and Cardiff Crown Court are among the courts to resume business, having been reconfigured to ensure social distancing. Jurors and lawyers are spaced out across two or three video-linked courtrooms.

But criminal lawyers, who have been struggling financially during the lockdown, are under no illusion about the difficulties that lie ahead. Caroline Goodwin QC, chair of the Criminal Bar Association (CBA) told her members: “This process is in its infancy. For those of you who believe we are rushing back to trials please put that out of your minds. This will be a slow and cautious start.”

The mounting backlog in the criminal court system predates the pandemic. At the end of 2019 the backlog of total cases had reached 37,434 — compared with 33,113 a year earlier — and judges were struggling to fix trial dates.

This was blamed on a decision by the government in 2019 to cut crown court sitting days by 15 per cent for the year to April 2020 because its court analysts had predicted a fall in total cases. In fact they rose.

Last week Ian Burnett, the Lord Chief Justice of England and Wales, said the backlog was growing at around 1,000 cases a month and the limited numbers of new jury trials will have a “small impact”. 

The government might be forced to consider more radical options such as smaller juries of seven or even judge-only trials, he told peers at the House of Lords Constitution Committee.

In February Robert Buckland, Lord Chancellor, added 850 extra court sitting days for the year ending April 2020 and promised a further 4,700 in 2020-2021.

Chris Philp, justice minister, told the justice select committee earlier this month that further sitting days might be added in September. “We want to get it down, coronavirus or not,” he said.

Criminal lawyers claim the justice system in England and Wales was already close to “breaking point” even before the pandemic because of austerity cuts, slashing the Ministry of Justice (MoJ) budget by 27 per cent. Declining fee rates for legal aid have sparked strike action by barristers twice in the past six years and 295 court buildings have been closed by the MoJ since 2010.

David Lammy, shadow justice secretary, is urging the government to co-opt empty school buildings and university lecture halls to use as temporary courts. “The backlog has grown as a result of the paralysing effect of the Covid-19 pandemic. But its root causes are ten years of austerity which hit the legal system as hard as any public service,” he said.

Coronavirus has created another concern: a lack of barristers and lawyers. The income of some self-employed barristers has dropped by 90 per cent since March, according to Kate Brunner QC, leader of the western circuit. “The pandemic has made everything worse. This trickle of trials in a few crown courts is not going to get us back to where we were,” she said.

A junior barrister who did not want to be named said: “Many of us at the junior end are really struggling. A lot of the work which we would normally do is now being picked up by more senior barristers.”

The Bar Council surveyed 3,500 barristers and found that 56 per cent could not survive another six months under current circumstances. 

The backlog also has an impact on thousands of families of victims and witnesses waiting many months for justice to be done. According to the CBA it took three years on average from charge to completion for fraud and adult rape cases that did manage to conclude in the final quarter of 2019. “We cannot afford as a nation to keep victims of crime waiting any longer,” Caroline Goodwin QC says.

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