Summarising the effects caused by a post-pandemic backlog, action against poor pay rates for criminal barristers resulting in an undermining of justice.
Impact of Covid
Criminal courts have been hugely disrupted by Covid. This has led to a large increase in the backlog of cases waiting to be heard, which only began to fall in June 2021 and will remain far above pre-Covid levels for several years. In 2021/22, the courts were still not operating as efficiently as before Covid, and a shortage of judges and barristers, exacerbated by strike action, will restrict how quickly the courts can reduce the backlog. As a result, victims are waiting longer for justice than at any time on record.
Covid-related funding accounted for around 3% of Her Majesty’s Courts and Tribunal Service’s (HMCTS) £2.4bn budget in 2021/22. Spending was 21% higher than the low-point of 2017/18, but still below the 2010/11 budget in real terms despite a record backlog and a need to process more cases.
Increasing backlog
In the magistrates’ courts, the backlog of cases initially increased substantially, but a combination of lower demand and no jury trials meant that it began to fall from 2020 Q3. The situation in the Crown court is much more difficult. Capacity fell much further during the pandemic because jury trials could not be held at all in 2020 Q2 and were then affected by social distancing requirements. The backlog peaked at over 60,000 cases in June 2021, the highest on record, before falling by 2,000 cases over the next two quarters. People are waiting much longer to have their cases heard, which can undermine justice. At the end of 2021/22, 25% of cases had been in the system for over a year, compared with less than 10% before the pandemic.
The failure of criminal courts to process more cases in 2021/22 does not reflect a lack of spending, but a less efficient system. In 2021/22, a higher share of trials were ‘ineffective’ – meaning a trial does not happen on the day and needs to be rearranged. The single biggest contributor to this was “defendant illness or other unavailability”: almost 5,000 cases were ineffective for this reason in 2021/22, compared with less than 2,000 in 2019. In Crown court the total amount of time spent hearing cases in 2021 was only 2.9 hours per sitting day, compared with 3.5 hours in 2018, showing that the courts have made less use of the available time.
The backlog is also constrained by the availability of judges and barristers. Crown court judges are mostly recruited from the existing pool of criminal barristers and that has dwindled because of poor pay rates. Currently criminal barristers are taking industrial action demanding that a new pay rate from government should also apply to existing cases. An indefinite strike would be even more disruptive.
Backlog of cases in the crown court