The UK’s Criminal Justice System (CJS) has been ripe for overhaul for many years. It could be said that there has been mismanagement and neglect by successive governments, along with a chronic lack of funding. Combined with deeply ingrained systems of working which are often archaic and inefficient, these have placed it into a state of crisis. We have a nationwide system that is now barely fit for purpose and cannot keep pace with the fast-changing world around it – both crime and policing are evolving at a far greater pace and the gap continues only to increase.
Criminal Bar Association chair, James Mulholland QC, recently described the system as being “on its knees”, which is a perception widely held across the legal profession. Part of the problem is the ongoing wider misconception of the CJS as a secondary national concern which only affects a slim margin of society. In reality our justice system is as important as any other national institution and touches the lives of virtually everybody, whether directly or indirectly, often with consequences that can permanently shift the course of a person’s future.
Prior to 2020, the shortcomings of our CJS were already widely apparent to those that are associated with it, but the global disruption brought about by the Covid-19 pandemic has only exposed them more publicly, and further hampered progress. This makes 2021 and beyond a period in which the future of our justice system truly hangs in the balance, and here the legal experts at renowned London criminal solicitors Lawtons explain their thoughts and predictions for the next few years.
What has changed during the pandemic?
Lack of funding has been at the heart of the CJS’s problems for a long time – capital spending by the Ministry of Justice has been lower than its 2010/11 level every year since. This creates a legacy of underinvestment, the damage of which has been laid bare more than ever during the past year. Its ongoing financial situation meant the UK’s court system was always going to be woefully ill-equipped for a pandemic, but the contrast between its own pace of change and the rapid expansion of technology and development elsewhere has left the system simply unable to adapt quickly enough.
The issues run deep – the CJS has developed a long-entrenched culture in which change can never be expected to take place quickly, and things still move at a pace more akin to when the system was created. Where many other, more well-resourced institutions have been able to switch to virtual technology and social distancing with relative ease, almost every aspect of the justice system has prevented the transition from being straightforward – from shortages of equipment to a lack of clear guidance throughout the pandemic.
The backlog of unprocessed criminal cases, one of the most crippling problems faced by the justice system, has therefore exploded exponentially with Covid-19 restrictions slowing each case further. The figure now stands at around 45,500 and a study suggests it could be as high as 195,000 by 2024 without immediate action.
What new technologies are courts using?
In another sense, the pandemic has given a much-needed boost to the kinds of technological developments that the CJS has been in need of for some time. The use of the new Cloud Video Platform (CVP) in hearings allows cases to be dealt with remotely without the attendance of prosecutors, defence advocates and witnesses in the court building – and although intended primarily as a safety measure during the pandemic it opens up the possibility of bringing new efficiency to the system in future.
On occasions, defendants have also not been required to attend court in person, and can take part in trials or certain hearings via video link from police stations, prisons, solicitors’ offices and even their own homes. The difficulty of gathering all involved parties in one place is itself a factor in court delays, so virtual hearings like those on the CVP should at least help to ease the backlog, but are not enough in themselves to fix the problem.
In addition, it is important not to become too reliant on these technologies – the experience of a trial ‘in the room’ cannot be recreated online and for particularly sensitive cases or those with vulnerable victims, in-person trials are absolutely necessary. In addition, some of the effectiveness of certain aspects such as cross-examination can be lost via video link, although it has for some time been used as a special measure for vulnerable witnesses or complainants upon application by the prosecution.
Are court buildings still fit for purpose?
A significant number of London court buildings are not only old – built during a time when the justice system worked completely differently – but often cramped and totally ill-equipped for social distancing. This has made the requirements for Covid-safe jury trials during 2020 completely incompatible with the spaces in which they take place. Several rooms are required for a single jury trial to proceed, in order to provide the privacy and security needed, and a jury has to be physically present rather than video-linked like other participants.
This creates an ongoing headache for the justice system which is set only to be worsened by the latest coronavirus mutations and the new lockdown put in place by the government. Many Crown Courts have already temporarily suspended jury trials again. Where jury trials are still operating, they often involve the court building setting aside a number of court rooms just to run the one case, thereby making it almost impossible for some court buildings to run other cases at the same time. The rollout of the vaccines may make it feasible for a greater number of trials and it has been suggested that those selected for jury service could be prioritised, so that jury trials can be maintained at an effective volume and would not collapse completely if one jury member was to catch the virus.
How will the backlog of court cases be dealt with?
With the level of unprocessed cases pushing the system to breaking point, bringing the backlog figure down fast is the number one priority of the CJS. Justice Secretary Robert Buckland says he believes the backlog can be brought to an acceptable level, but not cleared, by early 2023.
There are a number of hopeful signs that new post-Covid ways of working could help ease the backlog even though it still sits in the tens of thousands – and these include more efficient video conferencing, the prioritising of vaccines for jurors and the ‘Nightingale courts’ set up in the midst of the pandemic. However, it will take much more than this to solve the problem for good – and proper investment is key. The Nightingale courts, otherwise known as Blackstone courts, haven’t touched the side of the backlog to date, and few if any have been utilised effectively to alleviate the backlog or address the lack of suitable infrastructure.
A new review into criminal legal aid, announced recently by the Ministry of Justice, aims to “ensure that the legal aid market can adapt to the changing criminal justice system, while continuing to provide high-quality advice and representation”, as part of a wider effort to make sure the CJS is fully equipped to deal with the increasing number of cases. Ultimately, though, the only way of resolving the crisis facing the CJS will be through a system of investment and planning which acknowledges the failures of past governments to modernise and adapt progressively and proactively.