The backlog of untried cases in the criminal justice system – which has ballooned during lockdown – could take a decade to clear, an official watchdog has warned.
The inspectorate that monitors the Crown Prosecution Service cautions that delays are likely to be “highly detrimental to justice”, will require “radical solutions” and that the problem could prove to be “more complex than dealing with the immediate crisis”.
The report is published as the justice secretary, Robert Buckland, is preparing emergency legislation for some trials to be conducted temporarily without juries to get around problems of social distancing in courtrooms.
His proposals have provoked strong opposition in defence of the traditional jury system among criminal barristers in England and Wales who would prefer larger, alternative venues to be hired as emergency “Nightingale courts” where jurors can be more easily accommodated.
Kevin McGinty, chief inspector of HM Crown Prosecution Service, says in the report: “The backlog of cases in the system is increasing daily. Cases that do come to court are taking hours or days longer than they would under normal circumstances. The challenges of social distancing and protecting those in the court environment cannot be underestimated.
“Court sittings and courtroom capacity with social distancing requirements will not allow for reduction of the existing backlog. Some estimates show that the current scale of increase in the backlog would take 10 years to clear at pre-pandemic rates. Any major increase in the time taken to hear cases is likely to be highly detrimental to justice.”
The HM Crown Prosecution Service Inspectorate (HMCPSI) report praises the CPS response to the crisis, the support it gave to its staff and its innovations in establishing remote working for most of its staff virtually “overnight” once lockdown began. It notes that one CPS staff member died of Covid-19.
It adds: “Virtual courts have become the norm nationally, despite many years of pilots and local attempts having fallen by the wayside as the commitment of partners waned.”
However, trial backlogs in the magistrates courts increased by 41% between the beginning of March and the end of May; in the crown court, the estimated increase was 53%.
The justice secretary has announced that 10 emergency, “Nightingale courts” are being set up. Buckland has dubbed them “Blackstone courts”, in deference to William Blackstone, the 18th century judge and legal commentator.
Last week Buckland told MPs he is also preparing legislation that would provide for crown courts to hear cases with seven, rather than 12 jurors, as was done during the second world war. There will also be provision for less serious trials to be conducted without a jury where two magistrates sit beside a judge – as happens in appeals from the magistrates courts against sentence or conviction.
Buckland also suggested there could be extended court days to catch up on the backlog. Under austerity and before the pandemic crisis, the number of judicial sitting days had been restricted to save money. The backlog of cases in the crown court already stood at 37,000 even before lockdown.
In a survey of members released on Monday, the Criminal Bar Association said more than 90% of practising criminal barristers dismissed plans to scrap juries for middle ranking offences.
Caroline Goodwin QC, CBA chair, said: “The criminal bar has stood firm even in these impecunious times for criminal barristers. We have rejected the proposed idea of interfering with the 800-year-old principle of jury trials.
“Public confidence in law and order requires the ordinary publics participation in criminal justice via juries. The notion of scrapping jury trials is an assault on justice, a blow to the common man.”
Simon Davis, president of the Law Society of England and Wales, said: “Going straight to extended working hours for already beleaguered judges, court staff and legal practitioners needs to be treated with utmost caution and, worse still, we should not be thinking about scrapping jury trials, even if only for some cases and on a temporary basis.”
The HMCPSI report did not touch on prosecutions under the Coronavirus Act or emergency health regulations which the CPS has admitted were in some cases wrongly charged.
It also did not investigate whether the quality of justice had been damaged during lockdown. The organisation Fair Trials has published a highly critical report based on the experience of defence lawyers which warned they had not had access in private to defendants to represent them effectively during the crisis.