The Institute for Government (IfG) recently published an in-depth analysis of how government reforms and covid-19 will affect policing, courts and prisons. Its conclusions are troubling if unsurprising.

The IfG states that the CJS is facing unprecedented case backlogs with courtrooms closed for all but a few priority cases; and waiting times for to hear cases could increase by more than 70 per cent in the event of a six-month lockdown. Defendants and victims of crime could be waiting for at least six months for cases to be heard. Government, it said, will need to spend an extra £55m–£110m a year for two years to run the extra trials required.

Build up

The challenges have arisen in part because of political decisions made in recent years, but also the immediate pandemic crisis that hit with little warning. The CJS was already at breaking point and will now have to manage the effects of the coronavirus pandemic with, as the report notes, an unprecedented restriction on the courts’ ability to process cases.

Video hearings via Zoom and Skype are taking place but not all types of hearing can be heard utilising this technology. All criminal trials have stopped and only urgent hearings are taking place. Even for those that are taking place remotely, there is plenty of anecdotal evidence that tech is failing at critical junctures during hearings, sentencing remarks and so on.

As the IfG says, the longer-term plan for the criminal courts system already was to make greater use of phone and video hearings as part of the digital courts reform programme, but few of the planned changes have so far been delivered. One area of concern that has been mooted is to what extent remote hearings change the outcome, and therefore the nature of justice dispensed, for instance, the report mentions concerns that magistrates and judges will be harsher when the defendant is not in the room.

The IfG’s project is that if the courts are shut down for six months, waiting times would increase by 60 per cent in the crown court (from 18 weeks to 29 weeks) and remain that long indefinitely without further action.

Though more hearings should be heard via video or by phone, it says there are concerns that virtual courts, where defendants are not in the same room as the magistrates, judges and juries presiding over their cases, could result in unfair treatment.

“Justice delayed is preferable to justice denied”, as the report states.

It says the courts have spare capacity and that over the past decade they have become more efficient, especially in the way the magistrates’ courts process summary offences. But there are concerns that this apparent efficiency in the face of deep spending cuts has “come at the expense of the quality of justice dispensed”.

Prisoners

The IfG also anticipates record prisoner numbers in England and Wales of up to 95,000 by 2023-2024. Though prisons are filled to beyond official capacity, government has pledged an additional 10,000 additional prison places but this will not be sufficient. In March 2020, the World Prison brief estimated that the prison estate (with a capacity of nearly 76,000) was almost 110% full.

Pandemic impact

The IfG’s analysis on the above issues preceded the pandemic and so the covid-19 crisis means the next few months will be anything but stable. There is considerable uncertainty as to the length and extent of the impact of covid-19, but the IfG’s predictions are worth a consideration:

The volume of crime, and the volume of police charges, are likely to fall.
Court backlogs are almost certain to increase substantially because largely untested virtual hearings cannot and should not be implemented on a mass scale to replace proceedings that would normally take place in court.
Longer waiting times will persist unless and until the case backlog is addressed
Additional spending over the next two years of between £55m and £110m per year will be required to ensure the criminal courts give the same quality of service.
A sharp, short term fall in the number of prisoners incarcerated because of fewer cases being processed in court.

The IfG concludes that the current crisis, combined with the government’s plan to increase the number of police officers by 20,000, will have a major impact on the CJSS.

Reaction

And what about criminal defence lawyers themselves? With dire warnings that more than 70 per cent of high street firms will hit the buffers in the next six months, it’s criminal practitioners that are one of the practice areas most at risk.

The Law Society has also been warning of the impact on criminal justice. At the start of April, for instance, it warned: “If criminal law practitioners, who have to go into prisons and courts to keep the system of justice going, cannot afford to keep going themselves – the whole system risks grinding to a halt.”

“It still remains difficult to judge the scale of this crisis. Whether [the financial package enabling legal aid providers to make payment claims earlier than usual] is adequate will depend, among other things, on how quickly the police and courts are able to find new ways of handling more routine work – and thus maintaining a volume of cases throughout this period.

The IfG says coronavirus will significantly reduce the volume of cases that criminal courts are able to process, so it’s good to know that the Law Society, the Bar Council and the Criminal Bar Association are part of a working party set up by the judiciary which is considering how jury trials can be restarted as soon as it is safe.

The sooner the criminal justice system can start to function more normally, the better.

You can read the full IfG report here..