Performance Tracker 2022/23: Spring update - Criminal courts

In the first half of 2022/23, the barristers’ strike significantly worsened the capacity of criminal courts to process cases and further contributed to an already record-breaking backlog of cases in the crown court. Even before the strikes, criminal courts were still not operating as efficiently as before the pandemic. While the number of cases processed recovered quickly during the pandemic, shortages of judges and barristers will likely continue to restrict how quickly the courts in England and Wales can tackle the backlog, which will remain far above pre-Covid levels for several years.

Spending on courts increased in response to coronavirus but remains low in historical terms

During 2020/21 and 2021/22, Her Majesty’s Courts and Tribunal Service (HMCTS), which is responsible for civil courts and tribunals as well as the criminal courts, received additional funding to help adjust its working during the pandemic and address its consequences. In 2021/22, additional funding for cleaning, temporary courts and extra technology came to £78 million. ⁵⁰ HM Courts and Tribunals Service, ‘Annual report and accounts, 2021–22’, 19 July 2022, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1092139/HM_Courts___Trinbunals_Service_Annual_Report_… Covid-related funding accounted for around 3% of HMCTS’s £2.4 billion budget in 2021/22.^* Spending was 19.5% higher than the low point of 2017/18, but still 8.1% below the 2010/11 budget in real terms despite a record backlog and a need to process more cases.

^{* HMCTS also receives some fee income for civil court and tribunal cases, but not for criminal cases. Around three fifths of the £2.4bn was spent on criminal courts.}

The number of cases criminal courts had to deal with fell during the pandemic and has not yet fully recovered

Demand in the criminal courts is best measured by the number of new cases entering the court system. All criminal cases first enter the magistrates’ courts. Most stay there with only the most serious cases being passed on to the crown court.

The number of cases entering the court system has been declining since 2014/15 but fell sharply during the pandemic. The decline since the mid-2010s has been attributed to a combination of falling police resources (the number of police fell by 20,000 between 2010 and 2018) and the growing volume and complexity of digital evidence, which mean investigations take longer to conduct. ⁵³ Davies N, Pope T and Guerin B, The criminal justice system, Institute for Government, 28 April 2020, www.instituteforgovernment.org.uk/publications/criminal-justice-system Lower case receipts during the pandemic can be explained by changing crime patterns and police activity, outlined in the Police chapter. Despite official government projections of growing demand on criminal courts after the pandemic, ⁵⁴ Comptroller and Auditor General, Reducing the backlog in criminal courts, HC 732, National Audit Office, October 2021, www.nao.org.uk/wp-content/uploads/2021/10/Reducing-the-backlog-in-criminal-courts.pdf largely due to increasing police officer numbers, this has not yet materialised and demand remains far below mid-2010s levels.

But the courts’ capacity to process cases fell by more and remains below the required level to keep pace with future demand

In both the magistrates’ and crown courts, the number of cases completed fell dramatically in 2020 owing to the pandemic. Initially hearings could not be held in person and while some cases could be heard online, jury trials in particular needed to take place in person. Social distancing restrictions limited the use of courtrooms for most of 2021/22 ⁶³ Harris P, Keeping you up to date on court safety, HM Courts and Tribunals Service, May 2021, https://insidehmcts.blog.gov.uk/2021/05/19/keeping-you-up-to-date-on-court-safety and the number of cases – and jury trials – processed by the crown court in particular did not match up to the government’s recovery plan, disposing of fewer cases than in 2019/20. ⁶⁴ HM Courts and Tribunals Service, Covid-19: Update on the HMCTS response for criminal courts in England and Wales, September 2020, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/915493/HMCTS401_recovery_overview_for_crime_WEB.pdf

While the crown courts began processing cases at the pre-pandemic level in early 2021, progress stalled significantly due to the barristers’ strike in the first half of 2022/23. And although the magistrates’ courts, being less reliant on barristers, continued gradually increasing the number of cases it processed, progress may be being hampered by the intermittent strikes in progress since October among court associates and legal advisers over the rollout of the Common Platform. ⁶⁵ Public and Commercial Services Union, ‘More HMCTS Common Platform action announced’, 13 January 2023, www.pcs.org.uk/news-events/news/more-hmcts-common-platform-action-announced

Courts were less efficient in 2021/22 than before the pandemic

The failure of criminal courts to process more cases in 2021/22 does not reflect a lack of spending or resources but instead a less efficient system.

Cases that are listed for trial can have four outcomes, as laid out by HMCTS: they can be effective, meaning the trial occurs as planned; cracked, meaning the trial need not happen but this is only decided on the day; vacated, meaning the trial is delayed but ahead of time so another trial can be listed in its place; or ineffective, meaning the trial does not happen on the day and needs to be rearranged.

During 2020/21, a much higher share of cases than usual were vacated due to the impact of coronavirus restrictions. However, in 2021/22 and the first half of 2022/23, while the vacation rate has been higher than usual, a higher share of trials have also been ineffective – the worst outcome – than before coronavirus in both magistrates’ and crown courts. In 2021/22, the single biggest contributor to this was ‘defendant illness or other unavailability’: almost 5,000 cases across both courts were ineffective for this reason in 2021/22, compared with fewer than 2,000 in 2019. ⁶⁶ Ministry of Justice, ‘Criminal court statistics quarterly: April to June 2022’, 29 September 2022, Trial effectiveness at the criminal courts tool, www.gov.uk/government/statistics/criminal-court-statistics-quarterly-april-to-june-2022

More recently, the barristers’ strike prevented many cases being processed. In the first half of 2022/23, the share of ineffective cases in the crown court rose to 36% (by far the highest level since at least 2009), contributing to declines in the share of vacated, effective and cracked cases. The number of ineffective cases caused by defence advocates failing to attend, for example, was 3,058. That is higher than all of the ineffective cases caused by the same reason for the preceding eight financial years combined. ⁶⁷ Ministry of Justice, ‘Criminal court statistics quarterly: July to September 2022’, 19 January 2023, Trial effectiveness at the criminal courts tool, www.gov.uk/government/statistics/criminal-court-statistics-quarterly-july-to-september-2022 However, recent data also suggests levels of defendant illness (as a contributor to ineffective trials) have declined to pre-pandemic levels. Based on this and the end of the barristers’ strike, we would expect rates of ineffectiveness to trend back to pre-pandemic levels (assuming workforce problems do not worsen – see below). ⁶⁸ Ministry of Justice, ‘Criminal court statistics quarterly: July to September 2022’, 19 January 2023, Trial effectiveness at the criminal courts tool, www.gov.uk/government/statistics/criminal-court-statistics-quarterly-july-to-september-2022 If this happens, it still means we can expect a high quarterly ineffectiveness rate of 10%.

When trials are ineffective or cracked, it means that court time cannot be used effectively because it will often not be possible to find another trial to fill the slot. In the crown court, the number of measured sitting days – that is, the number of days a judge sat to hear cases – was 100,000 in 2021. This was much higher than the reduced 69,000 in 2020 and similar to the 102,000 in 2018. ⁶⁹ Ministry of Justice, ‘Civil justice statistics quarterly: January to March 2022’, Royal Courts of Justice Annual tables – 2021, June 2022, www.gov.uk/government/statistics/civil-justice-statistics-quarterly-january-to-march-2022 However, the total amount of time spent hearing cases in 2021 was only 292,000 hours (or 2.9 hours per sitting day), compared with 359,000 hours (or 3.6 hours per sitting day) in 2018, showing that the courts have made less use of the available court time. ⁷⁰ Ministry of Justice, ‘Criminal court statistics quarterly: January to March 2022’, June 2022, Table C9, www.gov.uk/government/statistics/criminal-court-statistics-quarterly-january-to-march-2022 We understand this is in part due to Covid restrictions, which increased the downtime between hearings due to social distancing and additional cleaning.

During the pandemic, courts made widespread use of remote hearings – video and audio technology – to avoid in-person interactions. These have continued beyond formal pandemic restrictions, but mostly for short routine hearings rather than substantive ones. ⁷⁶ Magistrates Association, Magistrates’ courts and Covid-19, April 2022, www.magistrates-association.org.uk/Portals/0/Magistrates%27%20Courts%20and%20Covid-19%20SCREEN.pdf Short, routine hearings account for a relatively small share of court time and so there is a limit to how much of an efficiency gain this new technology can provide. In any case, the consensus among interviewees and a survey of magistrates is that remote hearings do not help courts run more efficiently, ⁷⁷ Magistrates Association, Magistrates’ courts and Covid-19, April 2022, www.magistrates-association.org.uk/Portals/0/Magistrates%27%20Courts%20and%20Covid-19%20SCREEN.pdf although they can provide a benefit to solicitors and barristers who would otherwise need to travel to attend short hearings. No data has been published by HMCTS on the prevalence of remote hearings since May 2021, ⁷⁸ HM Courts and Tribunals Service, ‘HMCTS weekly use of remote audio and video technologies May 2020 to May 2021’, June 2021, www.gov.uk/government/collections/weekly-use-of-remote-hearing-technologies-in-hmcts although interviewees told us that they are used much more readily by some judges and in some jurisdictions than others.

Adjusting for complexity, the backlog is twice as large as before Covid and falling slowly

The big fall in the number of cases processed during 2020 – a fall in capacity that outweighed the smaller fall in demand – led to a big increase in the number of cases in the system waiting to be dealt with.

In the magistrates’ courts, the backlog initially increased substantially, but a combination of lower demand (including fewer motoring and other less serious offences, which account for over three quarters of the caseload), use of remote hearings and no jury trials being required meant that the backlog quickly began to fall from Q3 2020.

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 Q2 2020 and were affected by social distancing requirements thereafter. The backlog increased from below 40,000 in January 2020 to 61,000 cases in June 2021, before falling by 2,500 cases over the next three quarters. However, it subsequently rose over summer 2022, reaching 62,800 in September as an initial no-returns policy followed by the full defence barristers’ strike hampered courts’ ability to process cases.

The government’s official plan is to reduce the backlog to 53,000 cases by March 2025, ⁷⁹ HM Treasury, Autumn Budget and Spending Review, October 2021, p. 101, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1043688/Budget_AB2021_Print.pdf which would mean cases remaining far above the pre-crisis level for a long time. If courts are able to start processing cases at the rate they were over the year preceding industrial action, they will miss this target by 2,900 cases. If demand increases as expected on top of this, the gap will be even larger. This stands in stark contrast to the progress of the Scottish Courts and Tribunals Service, which anticipates it can eliminate its high and sheriff court backlogs by March 2026. ⁸⁰ Scottish Courts and Tribunals, ‘Court backlog reduced by 30% during 2022’, SCTS News, 24 January 2023, https://scotcourts.gov.uk/about-the-scottish-court-service/scs-news/2023/01/24/court-backlog-reduced-by-30-during-2022

The headline backlog figure also understates the scale of the problem. The cases that could not be heard during the pandemic were disproportionately jury trials. These account for a minority of cases but most court time as they take much longer than other cases. Adjusting the backlog to account for this additional complexity, the ‘true’ backlog is more than twice as large as before the pandemic.

As a result, victims are waiting longer for justice than at any time on record

A big backlog matters because it means people have to wait longer to have their cases heard. By 30 September 2022, 28% of cases yet to be completed had been in the system for more than a year, compared with less than 10% before the pandemic. 

Long waiting times can undermine justice. It can affect the recollections of witnesses and defendants, and may mean that defendants do not want to fight a case that could last for years. The number of defendants held in prison on remand while they await trial (if they are not granted bail) has risen since Covid. It is possible these people will be found not guilty after a long stint behind bars, or even plead guilty (even if they are innocent) if serving a sentence is quicker than waiting on remand.

Shortages of judges and barristers limit how quickly the courts can reduce the backlog, exacerbated by industrial action

Despite the impact of backlogs on the operation of criminal courts, the government is expecting to reduce the backlog only slowly over the next few years. This is not because of a lack of money – the government provided funding for ‘unlimited sitting days’ in 2021/22, which has been continued into 2022/23. Instead, the constraint on the number of cases the courts can process is the availability of judges and barristers.

The number of judges (who oversee all crown court cases) has been relatively stable over the past eight years, but the government is trying to recruit more to enable more cases to be heard. However, in the latest round of recruitment only 52 of 63 vacancies were filled and the Public Accounts Committee does not believe the government’s plan to recruit 78 in the next round is credible. ⁸⁸ House of Commons Public Accounts Committee, Reducing the backlog in criminal courts: Forty-third report of session 2021–22, HC643, March 2022, https://committees.parliament.uk/publications/9159/documents/159649/default

Crown court judges will mostly be recruited from the existing pool of criminal barristers. But this poses a problem, because there is also a shortage there. The number of barristers fell further during the pandemic as defence barristers in particular diversified their portfolios to maintain their income. ⁸⁹ The Bar Council, The impact of the Covid-19 pandemic on the Criminal Bar, April 2022, www.barcouncil.org.uk/asset/278149E5-0D7C-44AC-A92115A79CCE2AF1 The rates paid to barristers for criminal cases through legal aid have fallen substantially in real terms since 2010. Combined with lower activity in the courts, this has made criminal defence work poorly paid compared with other legal work, especially early in careers. Spending on criminal legal aid was 41% lower in real terms in 2021/22 than in 2011/12. ⁹⁰ Ministry of Justice, ‘Legal aid statistics: January to March 2022’, June 2022, www.gov.uk/government/statistics/legal-aid-statistics-january-to-march-2022

The Criminal Legal Aid Review reported in 2021 and, among other recommendations, advised rates should be increased by 15%. ⁹¹ Bellamy C, Independent Review of Criminal Legal Aid, Ministry of Justice, November 2021, www.gov.uk/government/groups/independent-review-of-criminal-legal-aid The government initially acceded to this for new cases (not the significant number in the backlog), before extending the 15% rise to the majority of cases in backlog in response to industrial action by defence barristers between April and October 2022. ⁹² Casciani D and Burns J, ‘Criminal barristers vote to end strike over pay’, BBC News, 10 October 2022, www.bbc.co.uk/news/uk-63198892

Barrister strikes were disruptive while they lasted, so it was important for the sustainability of the courts system that the government was able to agree a deal. The backlog rose between March and September 2022 to 62,766, which in turn pushed the adjusted backlog to a record high of 89,996. A Freedom of Information release from the Ministry of Justice shows that on average fewer than 300 trials were completed per week between April and July 2022, down from an average of more than 350 in 2021/22. ⁹³ Ministry of Justice, ‘FOI releases for August 2022’, 2 September 2022, retrieved 20 September 2022, www.gov.uk/government/publications/foi-releases-for-august-2022

However, while defence barristers have gone back to work, shortages of this group are likely to continue to limit how quickly the government can process cases to reduce the backlog. Indeed, the director of public prosecutions recently highlighted a lack of prosecution barristers and the size of the backlog as key contributors to delays that cause some victims to withdraw their cases. ⁹⁴ ‘’Overwhelmed’ justice system failing victims of crime, CPS chief warns’, Independent, 2 January 2023, www.independent.co.uk/news/uk/home-news/criminal-justice-system-delays-overloaded-b2250604.html

The other relevant workforces for the criminal courts are magistrates and HMCTS staff. Magistrates are volunteers and their numbers have fallen by more than 50% since 2010. Nonetheless, this is not currently a major constraint on how many cases can be processed. Magistrates have managed with reduced numbers by sitting as a panel of two rather than the usual three. HMCTS staff numbers have increased since 2017, and despite a much smaller workforce than 2010 the department believes the workforce is big enough. ⁹⁶ House of Commons Public Accounts Committee, Reducing the backlog in criminal courts: Forty-third report of session 2021–22, HC643, March 2022, https://committees.parliament.uk/publications/9159/documents/159649/default