Criminal courts

Spending by Her Majesty’s Courts and Tribunals Service (HMCTS) has fallen by 23% in real terms since 2010/11. An increase in the typical complexity of cases means that the demands placed on the criminal courts system have not fallen as quickly. At the same time, HMCTS has begun to pursue an extensive programme of reforms to streamline the operation of the courts.

Between 2010/11 and 2015/16, criminal courts struggled somewhat to keep up with new demand. Since then they have managed to reduce waiting times and clear some of the backlog of cases, despite continued cuts to spending and the workforce. This suggests that the courts are processing criminal cases more efficiently, but it does not tell us what has happened to the quality of justice dispensed in those trials or people’s ability to access justice. These issues are harder to assess quantitatively, but anecdotally are of growing concern. Whether all of the recent efficiencies can be sustained will depend on these concerns.

Criminal courts in England and Wales are run by HMCTS, which oversees all criminal, family and civil cases and tribunals in England and Wales.* HMCTS is an executive agency within the Ministry of Justice (MoJ).**

In 2017/18 HMCTS operational spending totalled £1.8 billion (bn).[1] This covers the day-to-day running of the service and the costs of transforming ways of working, but excludes capital spending, such as on new court buildings.

It is not possible to identify exactly how much of this was spent on running criminal courts, as many of the staff and other resources employed by HMCTS are used to support both criminal and civil cases. However, information is separately available on the activities going on in criminal courts and their performance.

This chapter focuses on criminal courts in England and Wales. But – more so than with any other service examined in this report – we would struggle to give an accurate picture of their performance without reference to other parts of the criminal justice system. Changes in spending on other related services and programmes – in particular, legal aid and the Crown Prosecution Service (CPS) – have important knock-on effects on criminal courts. These are also discussed below.

*    Tribunals predominantly cover employment, immigration and benefits cases.

**    Executive agencies are managerially and budgetarily separate bodies that carry out certain functions of government. But, unlike non-departmental public bodies, they do not enjoy legal and constitutional separation from ministerial control. HMCTS is jointly accountable to the Lord Chancellor (who is also the Secretary of State for Justice), the Lord Chief Justice (the most senior member of the judiciary) and the Senior President of Tribunals.

 

Spending on HMCTS has fallen by 23% since 2010/11

HMCTS operational spending fell in cash terms from £2.1bn in 2010/11 to £1.8bn in 2017/18. This equates to a 23.2% fall in real terms.* Over the same period, government funding of HMCTS fell by 39.8% in real terms. This was partially offset by an increase in the fees charged to users of the non-criminal parts of the system.

Income from these fees grew by 36.8% in real terms over this period. The fees – in most cases – cannot exceed the unit cost of delivering the service in question and must be used to ensure an efficient courts and tribunals service.** But this still means there can be some cross-subsidy within HMCTS, whose staff and estate cover criminal and non-criminal courts.

Figure 4.6 Change in spending on courts and tribunals in England and Wales (real terms), since 2010/11

Since 2010/11 HMCTS has used increases in fees for some parts of the courts and tribunals system to help compensate for cuts to central government funding. But its ability to push this any further is likely to be limited. In July 2017, the Supreme Court ruled that the fees charged for employment tribunal cases were unlawful, requiring HMCTS to refund these fees. Following a review of all of its fees, HMCTS has identified a number of other areas where fees had been charged erroneously or had been set too high – that is, above the unit cost.[2] As a result, it has had to reduce some of the fees it charges and has put in place a more robust system to scrutinise fee increases.

There have been a number of reform programmes in HMCTS over the past few years, which have been designed to streamline the trial process and thus save money. The most recent set of reforms – which includes 52 individual projects across the criminal and civil courts and tribunals service[3] – began in 2016 and has been described by the Public Accounts Committee as “hugely ambitious and on a scale which has never been attempted anywhere before”.[4] The reforms are expected to cost over £1bn and aim to save £265 million (m) a year (equal to around 14% of HMCTS’s operational budget in 2017/18) by 2023.

In the criminal courts, the reform programmes aim to support digital working throughout the criminal courts and enable all participants in the criminal justice system to work from the same information to reduce duplication of effort. They also set out to introduce more consistent working practices and allow HMCTS to deal with some matters outside court to reduce costs.[5]

It was widely acknowledged that the court system was in need of reform. Many activities relied on outdated systems and paper-based processes. Sir Terence Etherton, Master of the Rolls, said in June 2017 that without “radical change” the only prospect was “‘the managed decline’ of the justice system”.[6] Senior tribunals judge Sir Ernest Ryder noted in March 2016 that austerity “provides the spur to rethink our approach from first principles”.[7]

But concerns have been raised – by the Infrastructure and Projects Authority[8], the National Audit Office[9] and the Public Accounts Committee[10] – about HMCTS’s ability to make the ambitious reforms. Commentators, practitioners and justice experts have also raised concerns about the impact of the reforms – which have focused on making the courts faster, more efficient and more economical – on the quality of justice dispensed.[11]

*  HMCTS was created in April 2011 through the merger of HM Courts Service and the Tribunals Service. Figures for spending by the combined entity are available for its first year of operation (2011/12) in the HMCTS annual report for 2011/12. That report also contained a figure for the equivalent combined spending by the two separate organisations in 2010/11 but not for earlier years. It is for this reason that we focus here on changes in spending and performance that have occurred since 2010/11.

**    Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014 gives the Lord Chancellor, with the consent of the Treasury, the statutory power to set certain court and tribunal fees above cost recovery levels.

 

Demand: criminal courts are receiving fewer cases...

Two types of court are primarily responsible for dealing with criminal cases: magistrates’ courts and the Crown Court.* All criminal cases begin in magistrates’ courts and more than 90% of them stay there – including all less-serious, so-called ‘summary’, offences (such as motoring offences). Some more serious offences (known as ‘either way’ offences because they can be heard in either a magistrates’ court or the Crown Court) may be passed on to the Crown Court (if the defendant or magistrate asks for this to be happen). The most serious offences, known as ‘indictable only’ offences – such as murder and robbery – are always passed to the Crown Court.

Figure 4.7 Number of criminal cases received by the Crown and magistrates’ courts (thousands), since 2010/11

Between 2010/11 and 2017/18, the number of criminal cases received by the Crown Court fell by 27.7% (from 152,456 to 110,228). This includes cases received for trial at the Crown Court, cases passed by the magistrates’ court to the Crown Court for sentencing and appeals against the decision of a magistrates’ court.

The number of cases received by the courts depends on the police and CPS, who are responsible for deciding which cases to prosecute. As our analysis of the police outlines, the proportion of recorded crimes for which the police or CPS charged a suspect fell between 2013/14 and 2017/18. This helped to reduce the number of cases arriving at the Crown Court. The decline between 2010/11 and 2017/18 followed a six-year period when the number of cases received by the Crown Court increased every year: the number of cases grew by 25.2% between 2004 and 2010.[12]

In magistrates’ courts the number of cases rose marginally between 2012/13 (the first year for which data is available) and 2014/15, before falling by 7.7% between 2014/15 and 2017/18 (from 1.6m to 1.5m). At the same time, reforms have been put in place to try to actively reduce demand on magistrates’ courts. Since August 2014, those charged with relatively minor motoring offences have been able to submit their pleas online. The Single Justice Procedure, introduced in 2015, allows one magistrate (assisted by a legal adviser) to rule on certain minor, summary offences outside the court room.

Demand has declined more rapidly in the Crown Court than in magistrates’ courts because of an active policy change, which was designed to ensure that more ‘triable either way’ cases are heard in magistrates’ courts rather than the Crown Court. Following Sir Brian Leveson’s Review of Efficiency in Criminal Proceedings (which reported in January 2015),[13] the Sentencing Council revised its guidelines to clarify that “cases should only be sent to the Crown Court for trial when they are clearly unsuitable for trial in magistrates’ courts”.[14] These new guidelines came into force on 1 March 2016. The explicit aim of this policy was to ensure that “more cases will be retained for trial and sentence in the magistrates’ courts”.[15]

*   Some magistrates’ courts – known as youth courts – specifically hear youth cases.

 

…but cases have become more complex

Figure 4.8 Sexual and drug offences as a proportion of criminal cases received by the Crown Court, since 2010/11

Although the number of cases received by the Crown Court has fallen, there has been an increase in the proportion of cases that are more complex, such as sexual offences, drug offences, terrorism and organised crime.[16] The Lord Chief Justice concluded in his 2017 annual report that “it appears that the reduction in the number of cases is counterbalanced by the increase in complexity and length”.[17] Cases related to organised crime often have multiple defendants, for example.

As Figure 4.8 shows, in 2017/18, 10.8% of Crown Court cases involved sexual offences and 14.1% involved drug offences, compared with 8.1% and 12.3% respectively in 2010/11. However, the trend towards greater complexity appears to have plateaued recently.

These more complex types of cases typically take longer to hear. For example, defendants in sexual offence cases are less likely to plead guilty than those charged with other offences* – meaning it takes longer for the case to reach a conclusion. In 2017 it took an average of 204 days from when a sexual offence was first listed in the magistrates’ court to when the court case completed, compared with 28 days on average for all types of crime.[18]**

The rise in the volume of cases alleging sexual offence for most of the period from 2010/11 was in part attributable to historic sexual abuse cases.[19] The Leveson reforms – which, as mentioned above, aimed to ensure that simpler cases remain in the magistrates’ courts – have also meant that the average complexity of cases now being passed to the Crown Court is higher.

There is also evidence that cuts to legal aid (described in Box 4.1) have imposed additional burdens on criminal courts. Cases involving unrepresented defendants typically take longer to hear and some judges report that they have felt obliged to assist unrepresented defendants.*** Official statistics suggest that there has been no increase in the share of unrepresented defendants in the Crown Court, although there has been an increase in the share of defendants without a solicitor.**** But no official figures are available on how many people are unrepresented in magistrates’ courts.

Box 4.1: Legal aid spending has been cut sharply, with potential consequences for the functioning of the courts and the quality of justice that defendants receive

The legal aid system makes public funds available to eligible individuals to meet some or all of the costs of instructing solicitors and barristers to represent them in civil and criminal cases. In criminal cases the prosecution is also publicly funded (through direct funding, rather than through legal aid) and conducted by the CPS or other prosecutors such as Transport for London or the Driver and Vehicle Licensing Agency (DVLA).

As part of the Government’s efforts to cut public spending after 2010, the-then Secretary of State for Justice, Chris Grayling, announced wide-ranging cuts to the legal aid system in 2012 and 2013, with the aim of saving £220m a year by 2018/19.[20]

Even though some of the original proposals were abandoned, many changes were still implemented: means-testing for help with legal costs in criminal cases was introduced, and fees to solicitors, barristers and expert witnesses were cut.

Criminal legal aid spending fell by 32.1% in real terms between 2010/11 and 2017/18, from £1,175m to £891m (with both figures expressed in nominal terms).

The concerns raised by these cuts were well summarised in a letter from magistrate Christopher S Morley to the Magistrate magazine in January 2016:

“At the heart of the adversarial system is the concept of ‘equality of arms’, with both sides being equally able to present their case. This has been so seriously undermined by the lack of access to legal aid that it has become a regular and disquieting feature of the magistrates’ court to find defendants attempting to respond to a charge they don’t fully understand, with no experience of the law or of legal procedures, against qualified professionals with all the resources of the CPS behind them… They constitute a real threat to the long tradition of a fair trial for all who appear before us.”[21]

Failings within the CPS and the police also continue to put additional strain on the criminal courts system. For example, if the CPS decides to prosecute cases that it ought not to, it can waste court time on cases that quickly collapse, or cases may have to be adjourned if the CPS fails to disclose all relevant information to the defence. The role of the CPS and how its spending and performance have changed in recent years are described in Box 4.2.

Box 4.2: The Crown Prosecution Service (CPS)

The CPS prosecutes criminal cases in England and Wales. The first stage of its responsibility is to decide whether a case should be prosecuted at all and, if so, the appropriate charges. To pursue a prosecution, the CPS must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction and that prosecution is in the public interest.

If a case is prosecuted, the CPS is then responsible for preparing the case and presenting it in court. For more complex cases, the CPS may instruct a barrister to argue the case in court. The CPS is also responsible for providing information, assistance and support to victims and prosecution witnesses.

Between 2010/11 and 2016/17 the CPS’s budget for day-to-day spending was cut by 27.1% in real terms, before rising by 3.3% in real terms in 2017/18. Over this whole period, staff numbers were steadily cut, falling by 31.8% – from 8,094 in 2010/11 to 5,520 in 2017/18. Around four-in-ten of these are now lawyers, a proportion that has grown in recent years.[22]

The CPS has been part of several recent major reform programmes aimed at using resources more efficiently to improve the performance of the criminal justice system within a constrained budget.***** These reform programmes have also involved the police, HMCTS and the judiciary.

The CPS’s performance continues to be far from perfect, which has consequent costs for the courts, victims, witnesses, defendants and their legal representatives. For example, an investigation by Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) – published in June 2017 and covering a sample of 420 cases heard at 13 magistrates’ courts in early 2017 – found that in only 60.1% of these cases did the CPS comply with its legal responsibility to provide the defence with details of the prosecution’s case before the first hearing.[23] In cases where the CPS fails to provide the relevant information, judges and magistrates will not proceed with the trial unless they can satisfy themselves that no prejudice would be caused to the defendant by proceeding.

HMCPSI’s review also pointed to other ongoing problems. For example, in the cases examined, the CPS failed to provide feedback to the police in three-quarters of cases where the case file that the police passed to it was inadequate.[24] After the first hearing, the CPS carried out a timely review of the case in only 40% of cases where this was required.[25]

But, despite the spending cuts, there is evidence that the CPS’s performance is improving – albeit from a low initial level. HMCPSI found that between the autumn of 2015 and early 2017 – based on a sample of case files from each of those periods – the proportion of ineffective first hearings that were primarily as a result of CPS failings fell from 22.2% to 15.4%.[26] Over the same period, the proportion of cases in which the CPS provided the defence with the required details of the prosecution case before the first hearing rose from 50.0% to 60.1%.[27] The proportion of the cases examined for which the CPS had carried out a proper and proportionate initial case review also rose, from 38.8% to 60.6%.[28]

*    For cases heard at the Crown Court in 2017, 66.7% of all defendants pleaded guilty. But the figure was only 35.0% for those charged with sexual offences. See Ministry of Justice, ‘Criminal court statistics: January to March 2018’, Table AC6, Ministry of Justice.

**    For more information, see Office for National Statistics and Ministry of Justice, ‘An overview of sexual offending in England and Wales’, GOV.UK, 2013, retrieved 21 September 2018, https://www.gov.uk/government/statistics/an-overview-of-sexual- offending-in-england-and-wales.

***    In 2017, 11.3% of represented defendants had only one hearing to conclude their case, while 14.6% required six or more hearings. For unrepresented defendants, the equivalent figures were 7.5% and 24.2% respectively. See Ministry of Justice, ‘Criminal court statistics: January to March 2018’, Ministry of Justice.

****    In 2017, 5.3% of defendants in the Crown Court did not have an advocate at their first hearing, compared with 4.9% in  2010. The share of defendants without a solicitor at the time of their first hearing rose from 2.5% in 2010 to 20.4% in 2015, before falling to 13.0% in 2017. See Ministry of Justice, ‘Criminal court statistics: January to March 2018’, Table AC10, Ministry of Justice.

*****    Transforming Summary Justice and Better Case Management.

 

Input: the number of HMCTS staff has fallen by a third

Figure 4.9 Change in Her Majesty’s Courts and Tribunals Service staff numbers (full- time equivalent), since 2011 Q2

HMCTS staff are responsible for administering and ensuring the smooth running of the courts and tribunals system in England and Wales, but they are not responsible for preparing, managing or prosecuting individual cases – which is handled by the CPS (see Box 4.2) – or for judging cases – which is done by the judiciary.

Staff costs made up 28.5% of total HMCTS spending in 2017/18. Since the formation of HMCTS in April 2011 (when HM Courts Service was merged with the Tribunals Service), the number of full-time equivalent (FTE) staff has fallen by 28.9% (from 19,850 to 14,120 in the first quarter of 2018). The size of the HMCTS workforce reached a minimum of 13,660 in the third quarter of 2017 before numbers started to rise gradually. More than two-thirds of HMCTS staff are employed in administrative and clerical roles.[29]

As part of HMCTS’s plans for transforming how the service operates, it intends to reduce staff numbers to just over 10,000 by 2022.[30]

The decline in staff numbers has been roughly matched by a decline in real-terms spending on staff costs. HMCTS spent 35.2% less in real terms on permanent members of staff in 2017/18 than it did in 2010/11. This decline in the cost of employing permanent staff has been partially offset by a quadrupling of spending on agency staff, meaning total staff costs fell by 26.3% between 2010/11 and 2017/18. Some of these agency workers have been employed to provide specialist skills – such as software programming – required as part of the HMCTS transformation programme. But there has also been a sharp rise in the use of agency workers to carry out clerical and administrative tasks in the courts. In 2017 there were 1,747 FTE agency workers employed in such roles, compared with just 270 in 2011.[31]

The National Audit Office has raised concerns that HMCTS has cut staff numbers significantly before changes to working practices have been implemented and there are some signs of growing stress on the courts’ workforce. Since December 2017, HMCTS has identified as “very high” risk their ability to “maintain a capable workforce leading up to and following delivery of the transformation programme”.[32] Judges have also reported concerns about court staff morale. Nearly two-thirds (64%) of respondents to the 2016 Judicial Attitudes Survey said that the morale of court staff was ‘poor’. This was only marginally below the 65% of judges who said this in 2014. Unfortunately, no earlier data is available on judges’ perceptions of staff morale, as 2014 was the first time the Judicial Attitudes Survey was fielded.

However, data is available for this entire period – from the Civil Service People Survey[33] – on staff self-reported attitudes and satisfaction. Between 2011 and 2017 the employee engagement score for HMCTS rose slightly from 49% to 53%.* Levels of employee engagement at HMCTS were somewhat below those reported on average across the whole civil service in every year but the pattern of change over time was similar – average employee engagement across the whole civil service rose from 56% in 2011 to 61% in 2017.

The share of HMCTS employees saying their pay adequately reflects their performance has fallen steadily, from 21% in 2011 to 14% in 2017. This is a lower level and more pronounced fall than recorded elsewhere in the civil service – across the whole civil service, 32% of employees agreed or strongly agreed that their pay adequately reflects their performance in 2011, falling slightly to 30% in 2017.

But the share of HMCTS employees agreeing or strongly agreeing that their workload is acceptable has remained at (or just below) 60% in every year since HMCTS was created in 2011 – almost identical to the average across the whole civil service.

*    The Engagement Index is a composite measure based on employees’ responses to five questions. These gauge the extent to which employees agree or strongly agree that: they are proud to tell others they are part of HMCTS; they would recommend HMCTS as a great place to work; they feel a strong personal attachment to HMCTS; HMCTS inspires them to do their best in their job; HMCTS motivates them to achieve the organisation’s objectives.

 

Input: the number of magistrates has fallen more than the number of judges…

Figure 4.10 Change in the number of magistrates and judges, since 2010/11

It is more expensive to hear a case in a Crown Court than in a magistrates’ court. Crown Court trials must be overseen by a judge, who will be paid, and require a jury. By contrast, magistrates are unpaid and most trials in magistrates’ courts are decided by a panel of three magistrates (supported by a legal adviser) without a jury. The National Audit Office estimated in 2016 that a Crown Court trial costs an average of £1,900 per day for staff, judicial and juror costs, while a magistrates’ court trial costs an average of £1,150 per day.[34]

HMCTS spent 27.4% of its budget in 2017/18 on judges, paying for the services of 847 salaried judges and 1,220 FTE fee-paid judges. The salary costs for a further 877 senior judges were met from the wider MoJ budget rather than from the HMCTS budget. In addition to paid judges, HMCTS also benefited from the services of 15,003 unpaid magistrates as of 1 April 2018.

Magistrates are drawn from the local community and are expected to sit for around 20 days a year. The number of serving magistrates fell by 44.4% between 1 April 2010 and 1 April 2018, from 26,960[35] to 15,003.[36] This decline means that the average number of criminal cases disposed of by each magistrate each year rose from 67.6 in 2012/13 to 98.6 in 2017/18. Magistrates’ ability to deal with more cases has been assisted by the introduction of the Single Justice Procedure.

The number of salaried judges, who each sit for around 215 days a year, fell from 1,947 in 2010 to 1,724 in 2017 – an 11.5% fall. The number of FTE fee-paid judges – who are paid for each case they hear and provide a more flexible resource that can be drawn on as required – has fluctuated substantially over the past eight years but in 2017/18 there were 10.6% fewer FTE fee-paid judges than in 2010/11. The sharp fall in the use of fee-paid judges in 2014/15 largely reflected a fall in demand from tribunals – as a result of a fall in the number of employment cases – which has since reversed, following an increase in the number of immigration, asylum and family cases.

Most cases heard in the Crown Court (around four-fifths) are heard by salaried judges who are employed full time.[37] Fee-paid judges hear only about a fifth of Crown Court cases. In contrast, fee-paid judges are used more intensively to oversee tribunals, where they pick up around four-fifths of the workload.

…but problems recruiting judges have intensified

The MoJ, the Judicial Appointments Commission (JAC) and others have raised concerns about the ability to recruit new judges, particularly at senior levels. The first time a recruitment drive failed to fill a High Court vacancy was in 2014/15.[38] But in the summer of 2016, a recruitment drive for 14 High Court positions resulted in six vacancies remaining. The 2017 recruitment round to fill 25 High Court posts was left with eight vacancies.[39]

There have also been difficulties filling Crown Court posts. A recruitment exercise for 55 new Crown Court judges in 2016/17 attracted only 44 suitable candidates – the first time there had been a shortfall.[40] In 2017, 12.5 out of 116.5 vacancies were unfilled.[41]

Changes to judges’ pension schemes and the tax treatment of private pensions have reduced the value of judges’ remuneration, a particular deterrent for those who have previously had high earnings. The Lord Chancellor and JAC have also cited the slow pace of court modernisation, poor working conditions, poor workforce planning and the increasing numbers of self-represented litigants as barriers to recruitment.[42] The first three of these are the subject of ongoing reform initiatives.

The scale of judicial recruitment has increased in recent years and is expected to remain high in 2018/19, meaning that difficulties with recruitment are of growing concern. In 2016/17, the JAC carried out selection exercises for 290 judges. The number of judges that needed to be recruited rose to approximately 1,000 in 2017/18, is expected to be in excess of 1,100 in 2018/19 and is predicted to remain high in 2019/20.[43] This is because a large number of judges are approaching their mandatory retirement age.

There are also concerns – based on responses to the Judicial Attitudes Survey, which is completed by almost all judges – about judges’ morale, which may be affecting retention. However, because the survey is biennial and only began in 2014, there is limited evidence on how morale has changed over time.

Of those judges who were more than five years from their mandatory retirement age, 36% reported in 2016 that they were considering leaving the judiciary in the next five years, up from 31% in 2014.[44] Pay, pensions, increased workloads, stressful working conditions and demands for out-of-hours work were all identified as factors contributing to low morale.

Input: HMCTS is using fewer buildings to hear cases

The number of cases that can be heard depends not only on the number of judges available but also on the number of days that the courts are allowed to hear cases. Those days, known as ‘sitting days’, are decided by the MoJ. The number of sitting days in the Crown Court was cut from 110,969 in 2010 to 103,596 in 2013. This followed several years of declining case numbers – a trend that HMCTS predicted would continue in 2013/14.[45] However, the number of cases rose unexpectedly (reaching 142,670 in 2013/14 compared with a forecast of 129,214). In response, the number of sitting days was increased to 105,052 in 2014 and to 113,966 in 2015. But sitting days have since been reduced and are expected to be cut again this year.*

The reduction in sitting days will go hand-in-hand with physical court closures. There have been two major court closure programmes since 2010: the Court Estate Reform Programme (CERP), which ran from 2010 to 2014, and the HMCTS Estates Reform Project (ERP), which began in 2015. The rationale given for closing courts has been two-fold: first, that many court and tribunal buildings are under-utilised, meaning the workload can be transferred to other courts without pushing those courts beyond capacity; and second, that more effective use of technology will reduce the size of the court estate required.

The CERP and the first phase of the ERP aimed to close already under-utilised court and tribunal buildings. Following a consultation, the CERP resulted in the closure of 92 magistrates’ courts and 48 county courts.[46] The closure programme ended in September 2014. The first phase of the ERP scheduled a further 86 court and tribunal buildings for closure, including 54 magistrates’ courts and two Crown Courts.[47]

Between May 2010 and July 2015, 146 courts were closed, including 95 magistrates’ courts.[48] At the end of November 2017 there were 94 Crown Courts and 160 magistrates’ courts still open.** The MoJ is due to publish its response to the consultation on the second stage of the ERP later this year. This second phase focused on identifying courts that could be closed as a result of changes to the way the courts system operates following reforms.

In 2017/18 HMCTS spent £253m on accommodation, maintenance and utilities. This was 5% less in real terms than was spent in 2010/11. Despite plans to reform and invest in the court estate, judges have reported a deterioration in working conditions since 2009. The 2014 Judicial Attitudes Survey found that 85% of judges felt their working conditions were worse than five years before, while only 2% thought they were better. In the 2016 survey, 76% of respondents said that conditions had further declined between 2014 and 2016, with only 2% saying they had improved. The proportion of judges saying that the physical quality of court buildings was ‘poor’ rose from 21% in 2014 to 31% in 2016.

*    Figures cited in the text are for the number of days or part-days sat by each judge during the year (taken from Table 5.2 of the Royal Courts of Justice Annual Tables 2017). These figures may include some double-counting if, for example, one judge sits in a courtroom in the morning and a different judge sits in the afternoon. Figures compiled internally by HMCTS, which exclude this double-counting, suggest a slightly lower total but are not available for all years. HMCTS figures for some individual years were cited in: Public Accounts Committee, Efficiency in the Criminal Justice System, Parliament UK, 2016. www.parliament.uk/business/ committees/committees-a-z/commons-select/public-accounts-committee/inquiries/parliament-2015/efficiency-criminal- justice-system-15-16.

**    There were also 210 county court and 141 tribunal buildings hearing civil-only cases. See Ministry of Justice, Fit for the Future: Transforming the court and tribunal estate, Ministry of Justice, 2018, https://consult.justice.gov.uk/digital-communications/ transforming-court-tribunal-estate/supporting_documents/hmctsstrategyapproachconsultation.pdf.

 

Output: the number of cases that the Crown Court deals with each year has fallen since 2010/11 but hearing times have increased

The data suggests that spending and staff reductions have not impeded the passage of criminal cases through the courts. In recent years, this has been supported by a number of reform programmes designed to streamline the trial process, including:

  • Committal hearings – a purely administrative procedure by which cases were sent from a magistrates’ court to the Crown Court – were abolished on 28 May 2013, allowing cases to pass more quickly and with less administrative burden from magistrates’ courts to the Crown Court.
  • Transforming Summary Justice aimed to simplify the process for dealing with summary cases in magistrates’ courts, including measures to reduce the number of hearings per case.
  • Building on Transforming Summary Justice, the Better Case Management programme was launched in October 2015,[49] with the aim of making case management more robust and reducing the number of hearings, including by introducing a uniform scheme for reduced sentences in the event of a guilty plea (which came into effect in June 2017).
  • The Common Platform programme is the fourth attempt since the early 1990s to improve the flow of information between the police, prosecutors and the courts by allowing all the players to work on a single digital platform.

The number of cases disposed of by the Crown Court – that is, where the case reaches a successful conclusion, is dismissed by the judge or called off by the prosecution – fell by 25.5% between 2010/11 and 2017/18. However, the number of cases dealt with (shown in Figure 4.11) has exceeded the number of new cases received (shown in Figure 4.7) in each of the past three years, meaning that the backlog of cases at the Crown Court has been falling. The number of cases outstanding peaked at 55,116 at the end of 2014, before falling to 35,388 by March 2018.

Although the number of cases dealt with by the Crown Court has fallen, the average length of time taken to hear each case has increased, which can in part be attributed to the increasing complexity of cases. [50] The average hearing time for a Crown Court trial increased by 38.5%, from 2.9 hours for cases closed in 2010/11 to 4.0 hours for cases closed in 2017/18.*

Figure 4.11 Number of criminal cases dealt with by the Crown and magistrates’ courts (thousands), since 2010/11

The number of cases dealt with by the magistrates’ court fell by 6.4% between 2012/13 and 2017/18 and the average number of hearings required per case also fell, from 1.8 in 2010/11 to 1.5 in 2017/18.

The numbers of cases received (shown in Figure 4.7) and dealt with (shown in Figure 4.11) by the magistrates’ courts have moved roughly in tandem over this period. As a result, the backlog of cases has remained fairly stable. There were 318,853 cases outstanding in June 2012 and 290,532 cases outstanding in March 2018.

*    The average hearing time for cases that went to trial and where the defendant pleaded not guilty increased by 31% over the same period, from an average of 11.2 hours to an average of 14.7 hours. See Ministry of Justice, ‘Criminal court statistics quarterly: January to March 2018’, Table C7, Ministry of Justice.

 

Output: more cases are going ahead as planned – but longstanding administrative problems persist

The outcome of each case listed at the Crown and magistrates’ courts is recorded, providing some insight into how effectively the case was dealt with by the court and prosecuting authorities.

The best outcome for the defendant, victim and the courts is that a case is heard, as planned, on the originally scheduled date; these cases are referred to as ‘effective’. In 2017/18, 35.2% of trials listed to start in the Crown Court were effective.* This was a slight improvement from 32.8% in 2010/11. The share of cases going ahead as scheduled in the magistrates’ courts also increased, from 33.6% in 2010/11 to 39.4% in 2017/18. This increase is likely to reflect better case preparation, although this is not the only reason why the share of cases going ahead as planned might have increased.**

Figure 4.12 Percentage of Crown and magistrates’ court trials that went ahead on the originally scheduled date, since 2010/11

There are three other possible outcomes for cases. The trial can ‘crack’, meaning the case is withdrawn on the day it is due to start and is not relisted. In the vast majority of cases (82% in 2017), this is because a defendant pleads guilty.[51]

The trial can be ‘vacated’, meaning it is removed from the list in advance. Cancelling cases in advance has several advantages over last-minute rescheduling. It increases the likelihood that court time will be used productively, reduces costs to other parts of the justice system – for example, police officers do not waste time waiting to give evidence in a case that is ultimately not heard – and helps to reduce the stress and costs that victims and witnesses turning up to give evidence experience.

The final option – for cases that are not ready or for which there is no court room, judge or jury available on the appointed day – is for the case to be relisted. These cases are referred to as ‘ineffective’.

In the Crown Court, the share of ‘cracked’ trials fell between 2010/11 and 2017/18 – from 31.1% to 24.1%. Over the same period, the share of trials ‘vacated’ increased – from 26.1% to 30.2% – and the share of ineffective trials stayed roughly constant. The National Audit Office concluded in a 2016 report that this change indicates improved efficiency in the Crown Court: the courts service is becoming better at identifying which cases are likely to crack and identifying them in advance so that they can be removed from the list in good time to help make more efficient use of court resources.[52]

In the magistrates’ courts, the share of trials that cracked rose slightly – from 30.3% to 32.2% – between 2010/11 and 2017/18, while the fraction of trials that were vacated fell – from 22.7% to 15.5%. The share of ineffective trials changed only marginally.

Even though the share of trials that go ahead as planned has increased, a considerable proportion of cases still have to be rescheduled because of issues within the control of either the courts or other parts of the justice system. Of the roughly one-in-ten Crown Court cases that were cancelled on the day and had to be relisted in 2017/18, in 25.9% of these instances it happened because of court administration problems (up from 21.1% in 2010/11). This includes reasons such as previous cases over-running, no judge being available, too many cases having been listed that day or problems with equipment.

Just under a third (31.4%) of ineffective trials were ineffective because the prosecution was not ready or because prosecution witnesses or the prosecution advocate were not available. This was down from 37.9% in 2010/11.[53] (See Box 4.2 on the performance of the CPS.)

There is considerable variation across England and Wales in trial effectiveness. For example, the share of magistrates’ court trials that were effective in 2015 ranged from 16% in Lancashire to 51% in North Wales.[54] There are many reasons why some areas may have a greater share of ineffective trials, including differences in the type of cases heard in each area.*** But the extent of the regional differences suggests that there could be scope for further efficiency savings in some areas.

*    We follow the National Audit Office’s approach of expressing the proportion of effective trials as a share of all trials, including those that are ultimately vacated. In contrast, statistics published by the MoJ exclude vacated trials from the denominator. The National Audit Office approach has the advantage of being able to demonstrate the relative importance of trial vacation, alongside the other outcomes for scheduled cases. But it does mean that more cases are likely to be counted multiple times (for example, if they are vacated one or more times and then have an effective hearing). See Comptroller and Auditor General, Efficiency in the Criminal Justice System, Session 2015–16, HC 852, National Audit Office, 2016. www.nao.org.uk/report/efficiency-in-the-criminal-justice-system.

**    The share of effective trials could also increase if the police and the CPS focus on easier-to-prosecute cases. Alternatively, the reduced availability of a legal aid-funded defence may mean more cases go to trial on time but under-prepared.

*** There are a number of reasons outside courts’ control that could explain some of the regional variation in trial effectiveness. For example, some courts may receive a higher share of more complex cases. Birmingham Crown Court has experienced a significant increase in fraud and drug cases, while Southwark Crown Court is the designated court for fraud and money-laundering cases.

 

Output: there are concerns that spending cuts and reforms may be damaging the quality of justice

The above analysis tells us that, although there are persistent issues with the quality of criminal court administration, criminal trials continue to be processed at least as effectively as they were in 2010/11, in spite of large spending cuts.

It does not tell us, however, whether the quality of justice being dispensed in these courts is the same: if the guilty are being found guilty, if the innocent are being found not-guilty, and if the victims of crime are receiving the justice they are due.* 

Some practitioners, commentators and researchers have expressed concern that recent spending cuts and efficiency drives are jeopardising the justice system.

They raise two main concerns. First, pressures to expedite cases – including encouraging defendants to enter early guilty pleas – may come at the cost of due process. In a book published in March 2018, the Secret Barrister (a practising junior criminal barrister who writes under a pseudonym) said, in reference to what is going on in magistrates’ courts: “there may well be fewer, quicker hearings. There may well be fewer adjourned trials.

But to my mind, what is happening in these courts is not justice.”[55]

Second, court closures could undermine access to justice and the notion of local justice. Some courts were significantly under-utilised according to figures published by the MoJ – for example, Accrington Magistrates’ Court was in use for only 2% of the time possible in 2014/15 – suggesting clear scope for efficiencies.[56] However, some experts have raised concerns about the impact of court closures on access to justice because it can lead to a significant increase in travel times to an alternative court and undermine the long-established principle of local justice. Increased travel times can also create additional costs for courts and the police if more witnesses and defendants fail to attend hearings as a result. A recent report by the Suffolk Institute for Social and Economic Research at the University of Suffolk provides evidence of this based on experience following the closure of two magistrates’ courts in Suffolk.[57]

HMCTS intends to mitigate the impact of longer travel times by extending the use of video hearings to allow witnesses and defendants to give evidence without physically being in the court room. There are clear potential benefits to doing this because it reduces the complexity and cost of assembling all the necessary participants. But there are also potential costs. One prosecutor interviewed for a recent report by the think tank Transform Justice commented that “psychologically, it is easier to do something negative to someone when they are not physically present”.[58] There is still work to be done to understand the impact of video hearings on the decisions that judges, magistrates and juries make and whether the potential costs outweigh the benefits.**

Further concerns have been raised about diminishing access to justice due to cuts to legal aid (see Box 4.1). Some practitioners and analysts have expressed concerns that these reforms have led to an increase in unrepresented defendants, who may not understand the grounds they have for defence or mitigation. One prosecutor interviewed by Penelope Gibbs, of Transform Justice, in 2016 said: “I have prosecuted trials against unrepresented defendants. It is a complete sham and a pale imitation of justice.”[59]

Even for those who can afford legal representation, the stricter means-testing means that middle-and higher-income defendants do not receive a full refund of their costs even if they are found innocent. As a result, a wrongful accusation can have lasting financial consequences, as was highlighted by the recent high-profile case of Richard Holden.[60]

Judges and members of the legal profession have also said that cuts to legal aid fees for solicitors and barristers are discouraging high-quality lawyers from entering or remaining in the field of criminal law and those lawyers who remain are – through choice or necessity – cutting the amount of time they spend preparing each case, to the detriment of their clients. More than half of the 50 Crown and High Court judges interviewed by Jessica Jacobson and colleagues from Birkbeck University for a recently published study commented on the impact of low pay on the quality of criminal advocacy, with one judge saying: “The criminal bar has just been crucified financially… the best chambers who still have very good advocates, they supplement their income by doing private work rather than criminal legal aid, and they’ve essentially left the bog-standard crime in the Crown Court to pretty much second-rate people who are poorly-paid and very poorly-motivated.”[61]

In all cases there is a growing body of anecdotal evidence of these issues but so far there is little hard evidence on:

  • the number of people being discouraged from accessing justice
  • the number of people unrepresented in the magistrates’ court and the consequences for unrepresented defendants in both the Crown and magistrates’ courts
  • cases moving too fast and coming to the wrong conclusion
  • the scale of problems with the quantity and quality of lawyers willing to carry out legal aid work.

One measure of the quality of the service provided by the criminal courts system is how the service is rated by users – victims, witnesses and defendants. Some one-off surveys have been done to assess court users’ experiences but there is no consistent time-series data to gauge how the quality of the service has changed over time (although HMCTS has plans to conduct a regular survey of court users in the future). A survey carried out by Kantar Public for HMCTS between January and October 2017 found that 54% of all court users (including those using the civil and family courts) rated their experience as fairly or very good, while 28% said it was fairly or very poor. Three-in-five (61% of) court users were satisfied with the outcome of their case, while 29% were dissatisfied.[62]

A priority for the MoJ should be to collect robust evidence on the veracity of the claims that have been made about the declining quality of and access to justice. HMCTS has already started to gather evidence on court users’ experiences and the MoJ is currently undertaking a review of the 2012 legal aid reforms. These are useful initiatives but more work is needed.

*    The “overriding objective” of the criminal courts, stated in the Criminal Procedure Rules, is “that criminal cases be dealt with justly… acquitting the innocent and convicting the guilty”. See Ministry of Justice, The Criminal Procedure Rules, Ministry of Justice, 2018, www.justice.gov.uk/courts/procedure-rules/criminal/docs/2015/criminal-procedure-rules-practice-directions-2015-April-2018.pdf.

** There is some evidence on the impact of court participants appearing via video link from an experiment conducted in Australia. See Tait D, McKimmie B, Sarre R, Jones D, McDonald LW and Gelb K, Towards a Distributed Courtroom, Western Sydney University, 2017, http://courtofthefuture.org/wp-content/uploads/2017/07/170710_TowardsADistributedCourtroom_Compressed.pdf.

 

Have criminal courts become more efficient and can this be maintained?

Between 2010/11 and 2017/18 operational spending by HMCTS fell by 23.2% in real terms. Over the same period, the total number of cases received in the Crown Court fell by 27.7%. The number of cases received by magistrates’ courts fell by 5.3% between 2012/13 and 2017/18. However, this is likely to overstate the actual fall in demands placed on the criminal courts system because the cases being heard – particularly in the Crown Court – are now typically more complex than they were in the past. Cuts to legal aid have led more defendants to represent themselves, requiring more support from the courts than those represented by a solicitor. The average length of time taken to hear each case in the Crown Court rose by 38.5% between 2010/11 and 2017/18, although the average number of hearings required for each case in the magistrates’ courts fell slightly.

With spending having fallen faster than the demands of new cases, the courts system has had to find ways to use its resources more efficiently, to allow it to process more cases for every pound spent.

HMCTS has managed to limit the cost of employing staff and judges through capping pay rises and through changes made to judges’ pension entitlements. But the increased efficiency of the criminal courts system appears mainly to reflect improved productivity – getting more, in terms of the number of cases processed, for every member of staff, magistrate and judge employed and every court room used – rather than a concerted effort to cut the cost of service inputs.

“Our task,” said Lord Thomas in 2014 – then the Lord Chief Justice – is “to ensure that we uphold the rule of law by maintaining the fair and impartial administration of justice at a cost the State and litigants are prepared or able to meet… The type of reform needed… requires fundamental re-thinking of our processes and procedures.”[63]

There have been several targeted efficiency programmes affecting courts over the past decade that have helped the criminal courts to process cases with fewer resources than would have been needed in the past. Seven reform programmes, incorporating 52 separate projects, are ongoing in the criminal, civil and family courts.[64]

As part of this reform programme, between 2010/11 and 2017/18 the number of FTE staff employed by HMCTS fell by 28.9%, the number of magistrates fell by 44.4% and the number of salaried and FTE fee-paid judges fell by 11.5% and 10.6%, respectively. HMCTS has also reduced the number of buildings that it operates from by divesting underutilised court and tribunal buildings.

The available indicators of the quality of criminal courts suggest that the quality of the administration of cases has been maintained or even improved over the past three years even though spending has been cut. Cases are being heard in a timelier manner on average and fewer cases are being delayed by court or prosecution failures.

But concerns have arisen – as outlined above – over areas not captured by these indicators. Ultimately, whether recent increases in the efficiency of the criminal courts prove sustainable will depend on assessing how widespread the deterioration in access to justice and the quality of justice – suggested by anecdotal evidence – are and politicians’ acceptance of these consequences.