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Only by radically shrinking the magistrates’ court can the Crown Court backlog be reduced

Penelope Gibbs
24 Nov 2021

The Treasury in its spending review assigned £477 million  to reduce the Crown Court backlog by 7000 cases. I make that £68,000 for each case, or even more given that many trials in the list will not actually happen. The prosecution will withdraw, witnesses may refuse to appear and/or the defendant may plead guilty. The Crown Court backlog (c70,000 cases) is causing huge headaches for government, police, defendants and witnesses. It started pre-pandemic but has got much worse since.

One problem is that resources are finite. There are only so many judges, lawyers and court staff, and there are shortages in all three. And lawyers and judges cannot be magicked out of nowhere, given their long training and, in the case of judges, lengthy recruitment process. The only way of significantly reducing the backlog is to reduce the workload ie to reduce the number of cases in the system. At the beginning of the pandemic, this idea was taken seriously. The Crown Prosecution Service and National Police Chiefs Council were told in March 2020 that only serious cases would be heard during the first lockdown. In England and Wales police can only generally detain people in custody longer than 24 hours if they are charged with a crime. Those kept in custody post charge (remanded) have to appear in court as soon as possible – the next day the magistrates’ court sits. So the Crown Prosecution Service and the National Police Chiefs Council agreed an interview protocol and a charging protocol which asked police to restrict their use of detention, charge and remand to the most serious cases.

The protocol is still in force. But has it made any difference? There have certainly been some changes – y/e March 2021 arrests were down 4% and number of summary (least serious) offences prosecuted down 36% but a closer look at the figures suggests that the police struggled to change their modus operandi – arrest, detain, prosecute. Crime (crime survey E&W excluding online) fell 19%, far more than arrests. Y/e March 2021 police detained 32,523 people after charging them for summary offences, and 721,086 people were prosecuted for summary offences.  This suggests that the interview and charging protocols were not followed closely, or maybe at all after the first lockdown.

It is not surprising that police found it hard to behave completely differently. They have been chided for years for not charging enough crimes and many officers see prosecution and conviction as the goal of crime fighting. But there was and is an alternative. Low level crimes can be resolved without going to court. The police can use out of court disposals such as cautions or community resolutions and/or divert people to services which will help them address the drivers to their crime – drug addiction services, women’s centres, mental health services. The evidence we have suggests resolving crime without going to court is more effective. The reoffending rate for those who accept the simple caution is far lower than for those who are sentenced to pay a court fine, the next “step” up the criminal sanctions ladder.  Yet use of cautions did not change at all during the pandemic (1% of all recorded crime outcomes).

You’d expect Transform Justice to bemoan that the interview and charging protocols were honoured more in the breach than the observance. We have advocated for years for more crime to be resolved without going to court. Clearly serious crime needs to be prosecuted but there are other benefits to diversion – the greater the volume of crime prosecuted, the greater the strain on court resources.

We have a severe backlog of Crown Court cases with trials now being listed in 2023.  Everyone is desperate to reduce the backlog, partly to stop witnesses getting so fed up with delays that they (understandably) walk away. But efforts to reduce it have been stymied by lack of manpower. There is a severe shortage of court staff, judges and criminal barristers  – and these shortages cannot be remedied quickly. So the only way to free up resources is to reduce the number of cases in the system and reorient existing resources from the magistrates’ to the Crown Court. This wasn’t really done in the pandemic, but there is still time. It requires political bravery (to resist the clamour to increase charging rates), a willingness to shift court and legal resources and a significant change in police behaviour. It may also require a tweak to the legislation on use of out of court disposals. Currently, only those who make a formal admission of guilt can be offered a caution. This is a considerable barrier to suspects accepting a caution and many cases which could be resolved without going to court end up with guilty pleas in the magistrates’ court.

NHS England is developing really radical proposals to reduce the backlog of operations, some of which may be unpopular. We need an equally radical approach to the court backlog. You can’t make an omelette without breaking eggs.