Criminal courts

Criminal courts in the UK are under pressure. A reduction in spending and a rise in case complexity have forced the courts to adapt and reform – a process that has prompted widespread concerns about the quality of justice now being dispensed across the UK. This is, in part, because courts have been forced to make efficiencies. Her Majesty’s Courts and Tribunals Service (HMCTS) spending was 18% lower in real terms in 2018/19 than it was in 2010/11. And while the number of cases that the criminal courts received fell in that time, the cases themselves have increased in complexity. This has required the courts to make savings to meet demands.

The government’s promise to increase police resources is likely to mean that demand will also increase over the next few years. This will require more spending than the government’s plans currently imply if the performance of the courts is to be maintained.

Criminal courts in England and Wales are run by HMCTS, an executive agency within the Ministry of Justice (MoJ),* which also oversees the family and civil courts, and tribunals. HMCTS’s total operational (day-to-day) spending was £2.0 billion (bn) in 2018/19.[1] It is not possible to isolate spending on criminal courts from spending on other HMCTS activities.

This chapter considers performance in the criminal courts, but it is important to recognise that courts operate as part of a single criminal justice system (sandwiched between the police and the prison service, the subject of the previous and next chapters respectively). In this chapter, we also discuss two other public services that are integral to this system – legal aid and the Crown Prosecution Service (CPS).

* 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 stopped falling after years of cuts

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

There has been a huge reduction in government spending on HMCTS since 2010/11, which has led the MoJ to ramp up fees charged in the civil courts and tribunals. This approach has protected HMCTS spending to an extent, but some fee levels have been ruled excessive, meaning that future increases in HMCTS spending will need to come from central government budgets.

Between 2010/11 and 2017/18, HMCTS operational spending fell by 23.2% in  real terms. It then increased in 2018/19 to £2.0bn.* This was the highest real-terms spending level since 2013/14, but still means that spending remains 18.4% below its 2010/11 level in real terms.

Government funding for HMCTS has fallen by far more than this – and was 32.0% lower in real terms in 2018/19 than in 2010/11. This has been partly offset by an increase in fees (set by the MoJ) charged to users of the non-criminal parts of the system.** Fee income grew by 30.9% in real terms over this period. The fees – in most cases – cannot exceed the cost of delivering the service in question; but there can still be some cross-subsidy because HMCTS staff and estate cover criminal and non-criminal courts. As a result, HMCTS’s mix of funding has changed: in 2010/11, government funding covered almost 80% of HMCTS spending, while it now covers only 65%.

The increase in HMCTS’s fee income has allowed it to protect its spending over the past eight years, but this is a trick that the agency is unlikely to be able to repeat. In 2017, the Supreme Court ruled that fees in employment tribunals were excessive and were having an effect on access to justice. As a result, the MoJ reviewed its fees across the board and identified several areas where the fee was higher than could be justified by law.[2]

The impact of these changes is clear in the 2018/19 accounts, which show that fee income fell by 4.0% in real terms, in contrast to four years of consecutive real-terms increases before that.***

* This increase is explained by an increase in depreciation and impairment charges and other non-cash spending, which are recorded as current spending but do not represent programme spending. Excluding these items, spending in real terms was flat between 2017/18 and 2018/19.

** 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.

*** Fee income is net of the repayments of fees that have since been judged excessive.

Resource constraints on the police and CPS mean the criminal courts are receiving far fewer cases...

Number of criminal cases received by the Crown Court and magistrates' courts (thousands)

The number of cases arriving at the criminal courts has fallen substantially since 2010/11, but at the same time the complexity of those cases has increased. While demand has fallen, especially over the past few years, it has fallen by much less than real-terms spending on HMCTS.

Demand for criminal courts is determined by the activities and decisions of the police (discussed in the Police chapter) and the CPS (see Box 10.1). The role of the criminal courts begins when the CPS or, in the case of less serious offences, other public bodies such as Transport for London or the Driver and Vehicle Licensing Agency (DVLA), decide to prosecute a case.

There are two types of criminal court: magistrates’ courts and the Crown Court. All cases begin in the magistrates’ courts, and most stay there. Cases are referred to the Crown Court if they are for a serious offence, for sentencing* or if the decision is appealed. How a criminal case is dealt with, and in which court, depends on the severity of the offence. There are three tiers of severity:

  • summary: the least serious, including motoring offences, which account for most cases and are almost exclusively dealt with in the magistrates’ courts
  • either way: offences that can be heard in the magistrates’ court or Crown Court (with the latter occurring if the defendant or magistrate requests this)
  • indictable only: the most serious, such as sexual offences and murder, which are always heard in the Crown Court.

The number of cases received in the magistrates’ courts has fallen by 6.6% since 2012/13 – the first year in which data is available – from 1.6 million (m) to 1.5m. This relatively small decline masks a change in composition: the number of summary cases (which make up the vast majority of cases that the magistrates’ courts receive and are more straightforward) has increased by 0.7%, while the numbers of ‘either way’ and ‘indictable only’ cases have fallen by 18.6% and 27.2% respectively.[3]**

The decline in police charge rates (outlined previously) and cuts to CPS spending (see Box 10.1) are likely to explain the reduction in the number of the more serious ‘either way’ and ‘indictable only’ cases arriving in magistrates’ courts.

This reduction means that the magistrates’ courts have been passing on fewer cases to the Crown Court.*** This has been reinforced by government policy introduced in 2016 (‘the Leveson reforms’), which was designed to reduce demand on the Crown Court by keeping more ‘either way’ cases in the magistrates’ courts.**** The overall result is that between 2010/11 and 2018/19 the total number of criminal cases that the Crown Court received fell by 32.4% (from 152,456 to 103,042). This decline followed six years of growing case numbers, a cumulative increase of 25.4% between 2004 and 2010.[4]

 

Box 10.1: The Crown Prosecution Service (CPS)

Spending on the CPS has been cut further than spending on the police and the courts, achieved through a reduction in staff numbers and legal fees. This has presented a challenge to the CPS, which has seen a rise in case complexity increasing the burdens on its work. But while questions have been raised about its performance, there is evidence that performance has improved on at least some measures.

The CPS is responsible for prosecuting cases – deciding which cases to prosecute, the charges brought, and preparing and presenting the case (or, in more complex cases, instructing a barrister to do so).

CPS spending fell by 28.0% in real terms between 2010/11 and 2018/19.[5] This was a larger cut in spending than the police and courts experienced. As noted above, the cut in CPS spending has been achieved by reductions in both the number of staff employed and the amount paid to barristers. Staff numbers fell by 31.8% between 2010/11 and 2018/19,[6] and prosecution lawyers have recently threatened to go on strike in protest at the remuneration they receive when taking on CPS work, which has been made less generous in real terms in recent years.[7]

Some of the major court reform programmes enacted in the past few years include elements designed to improve the efficiency of the CPS. For example, Transforming Summary Justice and Better Case Management are programmes meant to improve the information exchange between prosecutors, the judiciary and defence counsel.

But the complexity of cases has also increased burdens on the CPS. The rise of smartphones has generated large volumes of data that could be used as evidence – meaning that even previously routine cases now require a greater focus on detail, increasing workloads. The police submit a terabyte (the equivalent of 1,500 CD- ROMs) of data to the CPS every day, which takes time to process.[8]

Poor CPS performance affects the operation of the courts. In 2018/19, more than 5,000 cases in the magistrates’ courts and more than 1,000 cases in the Crown Court had to be rearranged (the trial was deemed ‘ineffective’) because of problems with the prosecution. In 2017, Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) carried out an in-depth review of the CPS and examined a sample of cases. It found that in almost 40% of cases the CPS failed to comply with its legal responsibility to provide the defence with details of the prosecution’s  case before the first hearing.[9]

In the past few years, the Criminal Cases Review Commission (the miscarriage of justice watchdog) has raised concerns over the disclosure of information by the CPS in sexual offence cases,[10] and several trials have collapsed as a result.[11] The CPS conducted a review into its handling of sexual offence cases in 2018 and Alison Saunders, director of public prosecutions, conceded that “there are cases where we are falling short”.[12]

Despite these concerns, and longstanding problems with CPS performance, there are signs that it is operating more effectively in certain areas. The share of Crown Court trials that needed to be relisted for another day (again meaning the trial was ‘ineffective’) as a result of prosecution failings declined from 5.1% in 2010 to 4.2% in 2018.[13] In its 2017 review, HMCPSI identified improvements between autumn 2015 and early 2017 in the share of cases where the defence were provided with the relevant details, and the share of cases where the CPS carried out a proper and proportionate case review.[14]*****

* The maximum custodial sentence that a magistrate can give is six months.

** We discuss below reforms that have resulted in summary cases imposing a smaller burden on magistrates’ courts.

*** The increase in cases that the Crown Court received in 2013/14 was a result of the abolition of committal hearings. Committal hearings were a purely administrative process to transfer cases from the magistrates’ courts to the Crown Court. Following the abolition, cases were passed from the magistrates’ courts to the Crown Court more quickly, leading to a temporary increase in the number of cases that the Crown Court received.

**** This followed Sir Brian Leveson’s Review of Efficiency in Criminal Proceedings (which reported in January 2015); see Leveson B Sir, Review of Efficiency in Criminal Proceedings, Judiciary of England and Wales, 2015. In 2018/19, 14.4% of completed ‘either way’ cases were tried in the Crown Court, down from 17.0% in 2015/16, although the number of cases committed for sentencing increased.

***** Another measure of performance for the CPS is the prosecution rate – the share of cases that it chooses to prosecute where the defendant is found guilty. This has remained stable at around 83% to 84% since 2010/11.

… but case complexity has increased since 2010

Looking only at the number of cases received does not fully reflect demand on the criminal courts, particularly for the Crown Court. This is because demand on the Crown Court system will be greater in cases that require longer hearings, for example if they are more complex or where the defendant pleads not guilty.

This latter reason accounts for why sexual offence cases take up so much court time (12.5% of trials completed in the Crown Court in 2018/19 were for sexual offences, but those cases took up more than 20% of the total hearing time).[15] In 2018, only 35.5% of defendants at the Crown Court charged with sexual offences pleaded guilty, compared with 66.1% for all defendants.[16]

Sexual and drug offences as a proportion of criminal cases received by the Crown Court

Sexual offences and drug offences, another more-complex-than-average case type, accounted for a growing share of Crown Court cases between 2010/11 and 2016/17 (increasing from 20.4% to 26.7%). In 2017, the lord chief justice concluded that “it appears that the reduction in the number of cases is counterbalanced by the increase in complexity and length”.[17]

Since then, the number of sexual offence case receipts has declined rapidly, linked to well-publicised issues of cases collapsing and the CPS charging a lower share of such cases referred to them.[18][19] This means that the fall in caseload over the past couple of years has not been accompanied by the increase in average case complexity between 2010/11 and 2016/17.

The average complexity of Crown Court cases has also increased as a result of the Leveson reforms. Those reforms aimed to ensure that only the most serious triable ‘either way’ cases are referred to the Crown Court. The triable ‘either way’ cases that are still tried in the Crown Court now take an average of 3.9 hours to hear, compared with 3.2 hours in 2010/11, and a greater share of Crown Court cases are now ‘indictable only’, which take on average 9.0 hours to hear.[20]

There is also some evidence that cuts to legal aid (see Box 10.2) have increased demand on the criminal courts because fewer defendants now receive publicly funded legal support. Cases with unrepresented defendants take longer to hear in the Crown Court,* and a survey of magistrates in 2017 found that 94% believed that defendants being unrepresented led to problems in the effective running of the court at least some of the time.[21]

Difficulties in the courtroom were also documented in research commissioned by the MoJ, which involved in-depth interviews with legal professionals and was published in 2019.[22] Only a small fraction of defendants are unrepresented in the Crown Court, but the share has increased since 2010.** Official statistics are not provided for representation in magistrates’ courts but a survey of magistrates found that 30% of defendants in court were unrepresented in 2017, up from 24% in 2014 (no earlier survey is available).[23]

Overall, increases in complexity mean that demand has fallen by less than caseloads alone imply. Even with a sharp fall in caseloads over the past few years, and the decline in the number of complex sexual offences that the courts have received since 2016/17, demand has still fallen by less since 2010 than real-terms spending on the courts and tribunals system.

Box 10.2: Cuts to legal aid have proved controversial

Cuts to legal aid have been one of the most well-publicised, and controversial, changes to the legal system in recent years. Spending fell by 34.4% in real  terms between 2010/11 and 2018/19, with the number of recipients falling from 560,000 (130,000 in the Crown Court) to 295,000 (85,000 in the Crown Court) over the same period.*** Part of the falls in both spending and numbers receiving support can be attributed to declining court caseloads, but they are mainly a result of wide-ranging cuts to legal aid introduced in 2012.

Legal aid provides means-tested financial support to people to instruct lawyers in court cases. It is provided in both civil and criminal cases. In civil cases, both sides can in principle be eligible for legal aid; in criminal cases (our focus in this chapter), the state directly funds the prosecution.

Commentators worry that removing legal aid has undermined ‘equality of arms’ in the courts as a fundamental principle because self-representing defendants usually cannot compete when coming up against experienced lawyers.[24] The fear is that, in the minority of cases where defendants are unrepresented, this may lead to unjust outcomes.

Another concern is that cuts to legal aid remuneration for lawyers have reduced the number and quality of criminal lawyers willing to undertake legal aid work, especially in some places where there are now barely any young defence practitioners.[25] In response to the post-implementation review of the legislation, the government has announced reviews into the means-testing of legal aid and the fees paid to criminal lawyers, both of which are due to report in summer 2020.[26]

* In 2018, 10% of those with representation in the Crown Court had their case completed in one hearing, while for 16% it took six or more hearings. The equivalent shares for those without representation were 6% and 22% respectively. Part of this difference is likely explained by the fact that unrepresented defendants are more likely to plead not guilty, which tends to mean that trials take longer.

** In 2018, 7.7% of defendants in the Crown Court did not have an advocate at their first hearing, compared with 4.9% in 2010. Only 1.0% of defendants had no representation at any hearing throughout their case, compared with 0.6% in 2010. See Ministry of Justice, ‘Criminal Court Statistics: January to March 2019’, Table AC11.

*** The criminal legal aid reforms were originally intended to save £220m (approximately 20% of the 2010/11 criminal legal aid budget) by 2018/19, but are now judged to have saved somewhat less than this due to declining caseloads and the government not implementing all of the originally intended cuts. See Ministry of Justice, Post-Implementation Review of Part 1 of LASPO, Ministry of Justice, 2019, retrieved 15 October 2019, www.gov.uk/government/publications/post-implementation-review-of-part-1-of-laspo

The number of HMCTS staff has fallen by 30% and staff morale is below the civil service average

Change in HMCTS staff numbers since 2011 Q2

Note: All staff numbers are full-time equivalent.

For many people, working for HMCTS does not seem to be a satisfactory experience.  As spending on CPS staff has dropped over the past decade – with planned reforms set to see staff numbers continue to fall – staff morale, already at a lower level relative to much of the civil service, continues to fall further behind.

HMCTS staff are responsible for administering the courts and tribunals system in England and Wales.* More than two thirds of HMCTS staff are employed in administrative and clerical roles,[27] the main exception being legal advisers, who assist magistrates trying cases.

Staff costs made up 26.9% of total HMCTS spending in 2018/19. Between April 2011 (when HMCTS was formed out of a merger of Her Majesty’s Courts Service and the Tribunals Service) and December 2016, staff numbers fell by 29.5%. They have since remained fairly stable at around 14,000 full-time equivalent employees. However, HMCTS intends to reduce staff numbers to around 10,000 by 2023 as part of its planned reforms.[28] This has not been a significant feature of the reforms enacted so far, with planned staff exits up to January 2019 deferred until the subsequent phase (February 2019 to March 2020).[29]

Staff spending fell by 26.0% in real terms between 2010/11 and 2018/19, broadly matching the decline in staff numbers. But there has been a change in the composition of the workforce, with spending on permanent members of staff falling by more than a third (33.9%) in real terms and spending on agency staff increasing fourfold. Staff satisfaction data[30] suggests that staff morale in HMCTS, starting from a low base relative to the broader civil service, has fallen even further behind. The employee engagement score for HMCTS was the same in 2018 as it was in 2011 (49%).** Across the civil service as a whole over this period, engagement improved from 56% to 62%.

HMCTS scores especially badly on the perceived adequacy of pay and benefits: just 14% of HMCTS staff surveyed in 2018 agreed or strongly agreed that their pay and benefits were adequate, down from 21% in 2011; this compares to an increase from 31% to 38% over this period across the civil service as a whole. The gap in staff satisfaction has also widened over this period on questions relating to resources and workload. In 2011, 75% of HMCTS staff were satisfied with their resources and workload but this fell to 68% by 2018; across the civil service as a whole, the share of staff saying they were satisfied with this area stayed stable at around 73%.

This latter trend is consistent with concerns that the National Audit Office (NAO) raised in 2016: that cuts to staff numbers in HMCTS came before the necessary changes in working practices had been implemented.[31]

* HMCTS staff do not undertake many of the activities in the criminal courts. The responsibility for preparing, managing and prosecuting cases lies with the CPS (see Box 10.1) and other prosecuting authorities, while unpaid magistrates or (in a small minority of cases) district judges judge cases in the magistrates’ courts and the judiciary judges cases in the Crown Court.

** 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; and HMCTS motivates them to achieve the organisation’s objectives.

The number of magistrates has almost halved since 2010 and there are more than 10% fewer judges

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

Note: Magistrate numbers before 2012 are taken from each year’s statistics on ‘magistrates in post’; the number of magistrates is measured on 1 April at the end of each year.

The total number of both magistrates and judges has fallen notably over the course of the past decade, with a combination of concerns over pay and workload leading to serious morale and recruitment problems across the judiciary.

Magistrates are unpaid, are drawn from the local community and expected to sit for around 20 days a year. A panel of two or three magistrates supported by a legal adviser decides most trials in the magistrates’ courts,[32] although a district judge sitting alone hears a minority of cases.

However, most cases dealt with in the magistrates’ courts now do not require a trial in a courtroom. This is a recent innovation; in 2015, the ‘single justice procedure’ was introduced to allow less serious summary cases to be tried by one magistrate assisted by a legal adviser outside of a courtroom and without the defendant being present. This reform has allowed magistrates to process more cases. The number of magistrates fell by 46.8% between April 2010 and April 2019 (from 26,960 to 14,348). But the average number of cases disposed of by each magistrate was 101.8 in 2018/19, up from 68.0 in 2012/13.

Crown Court trials, which must be overseen by a judge, are much more expensive per day than magistrates’ court trials.* HMCTS spent 25.9% of its budget in 2018/19 on judges. Judges can be either ‘salaried’ (that is, employed full time) or ‘fee-paid’ (which means they are paid for each day they sit and hear cases). Salaried judges oversee around four fifths of criminal court cases,[33] while fee-paid judges take on most tribunal cases. In 2018/19, there were 1,777 salaried judges** – 8.7% fewer than the 1,947 in 2010.

The number of fee-paid judges tends to fluctuate more as they are used as required – for example, the sharp fall in the use of fee-paid judges in 2014/15 largely reflected a drop in demand from tribunals as a result of a fall in the number of employment cases, which has since reversed. In 2018/19, there were 1,171 full-time-equivalent fee-paid judges, 14.2% below the number in 2010/11.

*In 2016, the NAO estimated that a Crown Court trial costs an average of £1,900 a day for staff, judicial and juror costs, while a magistrates’ court trial costs an average of £1,150 a day. See Comptroller and Auditor General, Efficiency in the Criminal Justice System, Session 2015–16, HC 852, National Audit Office, 2016, p. 10, retrieved 15 October 2019, www.nao.org.uk/wp-content/uploads/2016/03/Efficiency-in-the-criminal-justice-system.pdf

**The HMCTS budget only covers the salaries of 863 salaried judges, with the wider MoJ budget meeting a further 914 senior judges’ salaries.

There is evidence of low morale and recruitment problems among the judiciary

Transform Justice, a charity that aims to promote a better justice system, has suggested that the magistracy “faces a workforce crisis not of its own making”,[34] amid the findings that in almost 15% of sittings in 2017/18 there were only two magistrates as opposed to the desired three. This shortfall of magistrates is mainly due to a lack of recruitment on the part of HMCTS – described in a June 2019 House of Commons Judiciary Committee report as being “as frustrating as it was foreseeable” – and the government has promised a three-year magistrates’ recruitment strategy.[35]

Though there appears to be no shortage of volunteers, there is some evidence of low morale – including a perceived lack of training and support – among existing magistrates.[36][37]

The recruitment and morale issues for judges appear to be more severe. The year 2014/15 was the first time that a recruitment drive to fill a High Court vacancy had ever failed (the High Court is a senior court in the UK justice system, and High Court judges will hear the most serious cases in the Crown Court).[38][39] Since then, unfilled vacancies have become a regular occurrence at the High Court, with 14 out of 110 posts vacant as of September 2018;[40] similar problems are evident in the Crown Court.[41]

The Review Body on Senior Salaries believes that the principal cause of recruitment and retention problems is cuts that were made to remuneration following changes to judges’ pension schemes and the tax treatment of private pensions.* The Review Body calculates that the net remuneration of a new High Court judge is £80,000 (36%) lower in real terms now than it was 10 years ago.[42]

The falls are smaller, though still substantial, for other ranks of the judiciary. This is a significant deterrent for people who could otherwise be earning a high income as a practising barrister. The National Centre for Social Research has carried out survey research and found that most recently appointed judges took a pay cut when becoming a judge.[43]

Acknowledging these problems, the government introduced a temporary ‘recruitment and retention allowance’ of up to 25% of salary (depending on judicial grade) from April 2019.[44] This replaces a pre-existing 11% allowance for High Court judges introduced in 2017. In announcing these interim measures, the government accepted that a longer-term solution to address recruitment and retention problems was necessary.[45]

While pay is a significant deterrent, it is not the only reason for recruitment and retention problems. The Review Body also cites inadequate administrative and IT support, and a significant increase in both workload and the number of litigants in person (unrepresented defendants).[46]

There is also evidence of low morale.[47] Of judges surveyed in the Judicial Attitudes Survey in 2016, 36% of respondents who were not due to retire were considering leaving the judiciary within five years. They identified stressful working conditions and increased workloads as the main reasons for this.

Unfortunately, 2016 was only the second time the survey was undertaken (the first being in 2014), and it has not been undertaken since, meaning that it is difficult to know how judge morale in 2016 compares to pre-2010 levels, or how morale has evolved since.

* These problems surrounding the taxation of pensions are the same as those that GPs face, discussed in Chapter 1.

HMCTS is using fewer buildings to hear cases

The closure of court buildings has proved controversial, with the past decade seeing a huge number being closed down and sold off. The government has given a number of justifications for these decisions.

In 2018/19, HMCTS spent £255m (12.8% of the operational budget) on accommodation, maintenance and utilities,[48] 6% less in real terms than in 2010/11. This covers the day-to-day running of the court estate, but excludes capital spending to upgrade it. In 2018/19, the court estate comprised 338 court and tribunal hearing centres,[49] including 161 magistrates’ courts and 84 Crown Courts.[50]

Half of the magistrates’ courts open in 2010 have been closed (162 out of 323), the result of two major closure programmes. Many of the buildings that have been closed have been sold to contribute funds towards HMCTS’s reform programmes.[51] Fewer Crown Courts have been closed (eight out of 92),[52] but the use of Crown Court buildings has fallen since 2010/11. The number of days that Crown Courts are used to hear cases (sitting days) has declined from 110,969 in 2010/11 to 101,689 in 2018/19.* The latest projections imply a further sharp reduction in the number of sitting days in 2019/20, reflecting continued low volumes of cases received from the CPS.[53]

One justification for closures is that many court buildings are underused; in 2016/17, even after many of these closures had occurred, 41% of magistrates’ courts were in use for less than half of the available time,[54]** meaning that transferring cases to other courts with spare capacity could increase efficiency. One concern with doing this is that the courts would need to be able to handle more cases if resource constraints on the police and CPS lift, as has now been announced for 2020/21[55] – and it is easier to close a court building than it is to open a new one.

Another justification for reducing the number of physical courtrooms has been that better use of IT, including the possibility of video hearings, will allow for a smaller court estate in future. Video hearings were piloted in the Tax Chamber in 2018 and further pilot programmes are planned this year in the civil and family courts, although there is no immediate plan to introduce them into trials in the criminal courts.[56]***

There have been persistent complaints that the remaining court buildings are run-down and outdated. In his 2018 annual report, the lord chief justice said:

The public should not be expected to visit dilapidated buildings and neither is it reasonable to expect staff or judges to work in conditions which would not be tolerated elsewhere... the backlog of urgent maintenance needed to ensure that all our buildings are in a decent condition will only be reduced by the injection of substantial funds.[57]

The government provided an extra £15m of capital spending in the 2018 budget to spend on court estate improvements,[58] but HMCTS has indicated that there is more still to do, highlighting in its latest annual report that “we will be investing in larger-scale structural projects such as making sure that roofs aren’t leaking and lifts are being fixed”.[59]

* Figures cited are for the number of days or part-days that each judge sits during the year (taken from  Ministry of Justice, ‘Royal Courts of Justice Annual Tables 2019’, Table 5.2). 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 that HMCTS has compiled internally, 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, retrieved 15 October 2019, www.parliament.uk/business/committees/committees-a-z/commons-select/public-accounts-committee/ inquiries/parliament-2015/efficiency-criminal-justice-system-15-16

** While magistrates’ caseloads have fallen by less than 7% since 2010/11, the demand for magistrates’ court buildings has fallen significantly more, largely as a result of the introduction of the single justice procedure.

*** Video-enabled hearings are used for some remand hearings in the criminal courts.

Criminal courts are dealing with fewer cases than in 2010/11

Number of criminal cases that the Crown and magistrates’ courts have dealt with (thousands)

The number of cases disposed of – that is, where the case reaches a successful conclusion, is discontinued by prosecutors or is dismissed – by the magistrates’ courts fell by 7.6% between 2010/11 and 2018/19. This is smaller than the decline in the number of cases received, and consequently the number of cases outstanding has fallen – there were 318,917 cases outstanding in June 2012 and 293,412 in March 2019.

Cases are being dealt with in fewer hearings in the magistrates’ courts. On average, the number of hearings per case in the magistrates’ courts has fallen steadily, from 1.8 in 2010/11 to 1.5 in 2018/19, and there has been a significant increase in the proportion of cases completed at their first listing (from 69.0% to 78.3%).[60]

Reforms explicitly intended to achieve this outcome have helped this reduction. The Transforming Summary Justice and the Better Case Management reforms aimed to simplify (and speed up) the process for dealing with summary cases. In addition, the abolition of committal hearings (purely administrative hearings in the magistrates’ courts before cases were referred to the Crown Court) in 2013 allowed cases to pass more quickly to the Crown Court, while a programme to ensure that the police, prosecutors and the courts use a common IT platform should improve the flow of information between them.

In line with a steeper decline in cases received, the number of cases disposed of  by the Crown Court also fell faster than in magistrates’ courts – by 30.8% between 2010/11 and 2018/19. Initially (between 2010/11 and 2015/16), disposals declined more quickly than Crown Court receipts, leading to a growing backlog of cases (peaking at 55,116 at the end of 2014). But since then, receipts have declined more quickly than disposals and in March 2019 there were only 31,916 cases outstanding, lower than at any point since 2000.[61]

But the fall in the number of cases that the Crown Court deals with has been accompanied by an increase in hearing times. The average hearing time for a Crown Court trial increased by 51.7%,[62] from 4.2 hours for cases closed in 2010/11 to 6.3 hours in 2018/19.* We noted above that the complexity of cases that the Crown Court receives has increased since 2010/11, and this undoubtedly explains part, and possibly all, of the increase in hearing times.

However, we do not have a perfect measure of ‘case complexity’ that would allow us to separate the effectiveness of the Crown Court from the complexity of the cases it receives.

* Hearing times increased by almost 40% for both guilty and not-guilty pleas. There has also been an increase in the share of defendants pleading not guilty.

Avoidable delays undermine the smooth flow of court cases

The outcome of cases listed at the Crown Court and magistrates’ courts is recorded, providing insight into how effectively cases are dealt with. There are four possible outcomes for a listed case. Broadly in order from worst to best, they are:

• ineffective: the case is not ready, or no courtroom is available, requiring the case to be relisted

• cracked: the case is withdrawn on the day and a trial is avoided (in more than four in five cases this is because the defendant pleads guilty)[63]

vacated: the case is withdrawn from the list in advance, possibly to be relisted later (though not necessarily, for example if the defendant changes their plea to guilty  in advance) – this is preferable to a cracked or ineffective trial as it allows the court time to be reallocated

• effective: the case proceeds as intended, being heard on the originally scheduled date.

Percentage of magistrates’ court and Crown Court trials that were effective, vacated, cracked and ineffective

In both the magistrates’ courts and Crown Court the share of effective trials has increased since 2010/11. In the magistrates’ courts, the share increased from 33.6% in 2010/11 to 38.6% in 2018/19,* although this share has fallen since 2015/16. In the Crown Court, the share of cases that were effective increased by less over the same period – from 32.8% to 34.2%. In both, the share of ineffective trials was stable over the period (at around 13% and 10% respectively).

The trends in cracked and vacated trials are different in the two systems. In the magistrates’ courts, the share of trials vacated has fallen (from 22.7% to 15.7%), while the share of cracked trials has increased (from 30.3% to 32.9%). In the Crown Court, meanwhile, the share of vacated trials has increased (from 26.1% to 33.3%), while the share of cracked trials has declined (from 31.1% to 23.2%). The NAO concluded in a 2016 report that the increase in vacated trials at the Crown Court indicated that the courts were getting better at identifying cases that were likely to crack and removing them ahead of time.[64]

The reason for ineffective trials is recorded and shows longstanding problems with court administration. In both the magistrates’ courts and Crown Court, the share of trials that are ineffective as a result of court administration problems has grown. In magistrates’ courts, the share of all cases that are ineffective due to problems with court administration or interpreter unavailability increased from 4.2% in 2010 to 5.0% in 2018; in the Crown Court the share increased from 3.1% to 3.5% over the same period.[65] Most commonly this is because courts list too many cases on a particular day, meaning defendants and witnesses have to come back another day.[66] This is designed to allow for cases to fill the time that would be wasted if cases crack, but also leads to inconvenience for defendants and witnesses should the case not be heard.

In the magistrates’ courts, improvements in trial effectiveness have been accompanied by a reduction in regional disparities. Variation in the proportion of effective trials across local criminal justice boards (LCJBs) was 40% smaller in 2018/19 than in 2010/11.** However, in the Crown Court, variation across LCJBs was just as large in 2018/19 as it was in 2010/11.

There are many reasons why the share of eff  ctive trials might differ across the country – for example, the case mix may be different – but the catch-up by those LCJBs with below-average performance indicates that there are also differences in process efficiency. This suggests that those LCJBs that remain below average may find further efficiencies to increase the share of cases that take place on the originally scheduled date.

* We follow the NAO’s approach of expressing the proportion of effective trials as a share of all trials, including those that are ultimately vacated. In contrast, statistics that the MoJ publishes exclude vacated trials from  the denominator. The NAO approach has the advantage of being able to show 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, retrieved 15 October 2019, www.nao.org.uk/report/efficiency-in-the-criminal-justice-system 

** Authors’ calculations using Ministry of Justice, ‘Criminal Court Statistics: January to March 2019’, trial effectiveness at the criminal courts tool.

There are concerns that the quality of justice is being undermined

The analysis above exposes ongoing problems with court administration. Nonetheless, when looking at the numbers, court administration appears to have improved over time: a higher share of cases are going ahead as planned and the backlog of cases is historically low. But criminal courts do not, of course, exist solely to process cases efficiently; cases must also result in a just outcome.* This is difficult to assess quantitatively – but is arguably the courts’ fundamental purpose, and most important ‘output’.

Some practitioners, commentators and researchers have expressed concern that spending cuts and efficiency measures are jeopardising the quality of justice,[67][68] and yet in many cases we lack the data to verify or quantify these concerns. In a welcome step, HMCTS has announced the creation of an expert panel to review the impact of court reforms on users, court efficiency and outcomes, which has begun to commission research.[69]

A recent Legal Education Foundation report has also set out data that the government should collect to monitor the effect of the reform programme on justice outcomes.[70] The rest of this chapter takes four prominent concerns, examines whether they are consistent with the available data and assesses what additional data, if any, would allow us – and HMCTS’s expert panel – to come to a firmer judgment.

Pressure to expedite cases may undermine due process

This concern is best summarised by the Secret Barrister, a practising junior criminal barrister writing under a pseudonym: “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.”[71] This concern has been repeated elsewhere.[72]

This is consistent with (though not necessarily the reason for) the decline in the number of hearings per case in the magistrates’ courts,** although hearing times have increased in the Crown Court. But other high-level data does not appear to corroborate the concern. A more hurried process that reached more incorrect decisions might be expected to lead to more decisions being appealed to the Crown Court, but the share of magistrates’ disposals that result in an appeal has fallen.

Concerns have also been raised that increasing numbers of defendants are being pressured into submitting early guilty pleas, but the share of guilty pleas in both the magistrates’ courts and Crown Court has declined since 2010/11.[73]

However, this data is insufficient to validate or rule out the concerns raised. Evaluating the substance of these claims would require survey evidence of defendants’ and legal practitioners’ perceptions and attitudes, and/or external review of case outcomes.

Court closures undermine ‘local justice’

Some commentators have raised concerns that people have to travel further to their nearest court, undermining the long-established principle of local justice. Concerns have also been raised that longer travel distances might harm the smooth operation of the courts if witnesses and defendants fail to attend.[74]

It is not possible to say quantitatively whether a principle (local justice) is satisfied or not but court closures have led to a substantial increase in distances between magistrates’ courts. Court closures mean that 35% of people now live further away from their nearest court than they did in 2010. Overall, between 2010 and 2018 the average distance to the nearest court increased from 3.6 to 6.3 miles. For those whose nearest court closed, the average distance increased from 3.7 to 11.3 miles, and for the 5% that experienced the largest increase, the distance they would be required to travel increased by more than 20 miles.***

Since 2010, the share of trials that have been ineffective because witnesses did not turn up has declined.[75] Superficially, this suggests that court closures have not increased failures to attend. However, there are other factors that may have affected this, such as the effectiveness of court communication – the same trend is present in the Crown Court, for example. HMCTS has announced its intention to publish data on the number of failure-to-attend warrants issued, which will allow researchers to test  the relationship between court closures and failure-to-attend warrants at a local level.[76]

We cannot use data to judge whether local justice has been undermined. It is possible to show that distances to court have increased, and are now very substantial for some people, but it is a normative judgment to say whether they violate ‘local justice’. In response to a consultation, HMCTS has restated its principles guiding its choice of court closures, with a greater focus on access to justice concerns, particularly on ensuring ‘reasonable’ journey times.[77] It should be possible to quantify the practical effects of court closures on court operation by analysing the relationship between distances travelled to court and the rate of no-shows, and HMCTS has promised to publish data to enable this.[78]

The use of video hearings could detrimentally affect case outcomes

HMCTS intends to extend the use of video hearings, whereby trials take place without participants being physically present. This may prove more efficient, but there are concerns that a ‘virtual courtroom’ may change the behaviour of magistrates, lawyers, juries and defendants. One prosecutor interviewed for a Transform Justice report in 2017 suggested that “psychologically, it is easier to do something negative to someone when they are not physically present”.[79]

There is also evidence that people value being ‘listened to’ in court, and those who interact with the court without being physically present are less likely to feel listened to.[80]

As these concerns are about changes to come, rather than reforms implemented, there is no way to evaluate these claims using the available public data. There is little evidence of what impact a greater use of video hearings would have in the criminal courts.**** The pilot schemes that HMCTS is rolling out in the civil and family courts are welcome, but further piloting and evaluation are necessary before digital changes are introduced wholesale into the criminal courts.

HMCTS should monitor the impact of virtual courts on outcomes closely as they are rolled out more broadly in the justice system, continuing with the pilot approach adopted in the tax tribunals and comparing outcomes across video and in-person trials.

Legal aid restrictions mean more unrepresented defendants and lower-quality criminal lawyers

The most widespread anecdotal problems concern cuts to legal aid (see Box 10.2). These cuts have precipitated two main concerns. First, that they have led to an increase in unrepresented defendants (although in the Crown Court it is important to acknowledge that this is still only a small minority of defendants), who are ill- equipped to access the justice they deserve. One prosecutor interviewed for a 2016 Transform Justice report said: “I have prosecuted trials against unrepresented defendants. It is a complete sham and a pale imitation of justice.”[81]

Second, there is a view that cuts in lawyers’ remuneration has reduced the quantity and quality of criminal barristers. In response to the government’s review of the legal aid reforms, the Criminal Bar Association described a “recruitment and retention crisis”, with only those from more privileged backgrounds able to become criminal barristers.[82]

Cases where defendants are unrepresented often take longer to hear, but we do  not have evidence on the extent to which case outcomes are affected by the lack of qualified legal representation, or evidence of people being deterred from accessing justice as a result of the less-generous legal aid means-test. It is difficult to assess this quantitatively, and at the very least would require survey evidence from defendants and practitioners as well as a review of case outcomes. It is notable that the government has acknowledged concerns and announced further resources to support unrepresented defendants.[83]

There is also little evidence on the quantity and quality of criminal lawyers taking on legal aid work. The government’s review of legal aid found that spending per legal aid provider was broadly flat while overall legal aid spending fell (with a fall of 14% in the number of legal aid providers between 2012/13 and 2017/18).[84]

But this does not assess the quality of criminal lawyers or the sustainability of the sector. In 2018, The Law Society of England and Wales expressed concern that the advocates who undertake legal aid work are ageing – the average age was 47, and in certain areas of the country most were over 55. It also cited low morale among lawyers taking on legal aid work.[85] A previous study that interviewed 50 judges found that more than half commented on the impact of low pay on the quality of criminal advocacy.[86]

Better data on the characteristics of new barristers and solicitors in legal aid chambers or firms, as well as the characteristics of those leaving the practice, would allow these claims to be tested. The MoJ should undertake analysis of this type as it reviews legal aid fees over the next year.

The quality of justice is of widespread concern, but the available data is not sufficient to evaluate it conclusively. To an extent this is inevitable, because some claims are difficult to quantify. But the MoJ could do more to assess, among other issues, defendants’ and other court users’ experiences and perceptions,***** the impact of court travel distances on ‘no-shows’, and the quality and diversity of lawyers taking on criminal legal aid work.

The government has set up an expert panel to commission research on the effect of the court reforms and announced reviews into specific policy questions concerning legal aid,[87] which will report in 2020. These should provide opportunities to look at and address (where possible) many of these problems.

*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, 2019, retrieved 15 October 2019, www.justice.gov.uk/courts/procedure-rules/criminal/ docs/2015/criminal-procedure-rules-practice-directions-april-2019.pdf

** This could be a result of magistrates’ courts’ better case management and more efficient use of hearings.

*** Authors’ calculations using House of Commons Library, ‘Constituency data: magistrates’ court closures’, House of Commons Library, 7 January 2019, retrieved 15 October 2019, https://commonslibrary.parliament.uk/ home-affairs/justice/courts/constituency-data-magistrates-court-closures. Specifically, calculations are at the Output Area level, based on populations at the 2011 census, with distances calculated from the centre of the area to the nearest court.

**** There is some evidence on the impact of court participants appearing via video link from an experiment conducted in Australia, which found that there was little difference in juror perceptions in a video trial as opposed to a physical trial. See Tait D, McKimmie B, Sarre R, Jones D, McDonald LW and Gelb K, Towards a Distributed Courtroom, Western Sydney University, 2017, retrieved 15 October 2019, http://courtofthefuture.org/wp-content/uploads/2017/07/170710_TowardsADistributedCourtroom_Compressed.pdf

***** In 2017, Kantar Public carried out a survey for HMCTS, but there is no consistent time series to benchmark these results over time. See HM Courts and Tribunals Service, HM Courts & Tribunals Service: Citizen user experience research, Ministry of Justice, 2018, retrieved 31 July 2019, www.gov.uk/government/publications/ hmcts-citizen-user-experience-research

Have criminal courts become more efficient – and if so, can that be maintained?

Reforms to the criminal courts have resulted in a number of efficiency improvements. A move towards largely paperless courts and reforms to judicial processes have allowed for significant staff cuts. The public sector pay cap has also enabled HMCTS to hold down growth in staffing costs.

However, there are concerns that staff cuts and other reforms have damaged the quality of justice that the criminal courts dispense. The data needed to assess these claims robustly is not currently available – but it should be a priority for the MoJ to gather the evidence required to examine this.

Efficiency savings were needed to try to maintain the scope of the service while HMCTS spending was cut sharply – between 2010/11 and 2018/19, spending fell by 18.4% in real terms. From 2012/13, the number of cases that the magistrates’ courts received fell by only 7.6% and – while the number of Crown Court cases fell by 30.8% – the increasing complexity of cases heard in the Crown Court means the demands on those courts did not fall as sharply as case numbers suggest.

A reduction in staff numbers has been a key component of the reform programmes implemented over the past decade: between 2010/11 and 2018/19, the number  of full-time equivalent staff that HMCTS employed fell by 29.3%; the number of magistrates fell by 46.8%; and the number of salaried and full-time equivalent fee-paid judges fell by 11.9% and 14.2%, respectively.

HMCTS has enacted wide-ranging reforms that have facilitated changes to how cases are dealt with, including the criminal courts becoming almost paperless. Productivity increases are most evident in summary justice cases heard in the magistrates’ courts (because magistrates are unpaid, the major expenses are court buildings and HMCTS staff). The introduction of the single justice procedure means that most cases are now handled by only one magistrate (plus a legal adviser) without using a courtroom.

The number of cases disposed of per magistrate has increased by more than 50% since 2012/13. At the same time, more than 150 (often underused) magistrates’ courts have been closed, many of them sold to fund the reform programmes.*

The programme of reform has had less impact so far on the Crown Court, and it is harder to identify efficiencies here because it is difficult to disentangle whether hearing times are increasing because cases are more complex or because trials are being conducted less efficiently. Longstanding problems with court administration persist in both the magistrates’ courts and Crown Court, but cases are administered more effectively now on average than they were at the start of the past decade, with more trials occurring on the originally scheduled date.

A further programme of reforms began in 2016, which was expected to cost £1bn and had the aim of saving £265m a year (or more than 10% of HMCTS’s current annual operational spending) by 2023. But doubts remain about whether and when this can be delivered in full. In 2018, the Public Accounts Committee described the reforms as “hugely ambitious and on a scale that has never been attempted before”.[88] In 2019, the timetable was pushed back by one year, though the stated cost remained unchanged.[89]

But a recent NAO report suggests that courts are still behind even this revised schedule: only 78% of the milestones due to be completed under the new timetable had been completed by January 2019. Some progress has been made: HMCTS’s  latest estimates imply that by the end of 2018/19 the reforms cost £540m (including both operating expenditure and investment expenditure) and had generated total cumulative savings over the three years of £133m, even though many of the reforms have not yet been fully rolled out.[90]**

Some of the reforms that have been implemented have transferred costs from the state to individuals. Greater means-testing of legal aid means that more people are representing themselves in court – a cost imposed on the defendants themselves and the courts where this affects their operation – and court closures mean that witnesses, defendants and jurors must travel further.

It has been widely acknowledged that the court system is in need of reform. Joshua Rozenberg QC (hon) set out the need for reform in a lecture in February 2019, when he pointed out that in some ways the courts system remained almost unchanged through much of the 20th century.[91]

However, it remains to be seen whether these reforms are too ambitious for HMCTS to implement successfully given its current resource constraints. This is a concern that the PAC has raised.[92] On the criminal court reforms specifically, in January 2019 HMCTS rated its likelihood of meeting the planned timetable as ‘amber-red’, meaning:

Successful outcome versus plan is in doubt, with major risks or issues apparent in a number of key areas. Urgent action is needed to ensure these are addressed, and to assess whether recovery is feasible.[93]

While it remains to be seen whether these reforms can be successfully implemented on time and to budget, it is undoubtedly the case that the courts operate more efficiently in some ways now than they did in 2009/10. However, there are two areas where concerns have been raised, which suggest that recent improvements in the efficiency of the criminal courts system may not be as significant as they appear.

The first, outlined above, is that the quality of justice dispensed has declined. The second concern is staff morale. Where survey evidence is available, it indicates declining job satisfaction and morale among HMCTS staff, magistrates, judges and criminal lawyers. Where comprehensive survey evidence is lacking, anecdotal evidence of recruitment and retention difficulties abounds.

The criminal courts system relies on these groups to function, and many of the recent cost savings have been made by reducing spending on staff and judges, as well as legal aid cuts affecting private sector lawyers’ remuneration. If morale does not improve, the efficiency savings achieved so far may not be sustainable.

The MoJ and HMCTS could and should do more, including through the work that their new advisory panel has commissioned, to collect new data – and analyse existing data – to evaluate the impact of the reforms.

* As of January 2019, court sales had raised around £223m. See House of Commons Library, ‘Constituency data: magistrates’ courts’, House of Commons Library, 7 January 2019, retrieved 15 October 2019, https://commonslibrary.parliament.uk/home-affairs/justice/courts/constituency-data-magistrates-court-closures

** The NAO has recommended that HMCTS improves how it measures savings from reform and more clearly shows where those savings have come from. See Comptroller and Auditor General, Transforming Courts and Tribunals – A Progress Update, Session 2017–19, HC 2638, National Audit Office, 2019, p. 24, retrieved 12 October 2019, www.nao.org.uk/wp-content/uploads/2019/09/Transforming-Courts-and-Tribunals.pdf

Have efficiencies been enough to meet demand?

Average waiting time (weeks) for Crown Court trials

Focusing solely on the administrative processing of cases, the data suggests that the efficiency of the criminal courts did improve between 2010/11 and 2015/16 – but not enough to maintain waiting times in the face of deep spending cuts. Since then, waiting times have fallen, but this may have been as much about the cessation of cuts and a fall in demand as improved efficiency.

Waiting times at the Crown Court increased between 2010/11 and 2015/16 – from 14.1 weeks to 20.3 weeks for ‘either way’ cases and from 19.3 weeks to 22.4 weeks for ‘indictable only’ cases – leading to larger backlog of cases. In the magistrates’ courts, waiting times also increased over that period, from 7.9 weeks to 8.8 weeks.[94] The spending cuts were steepest between 2010/11 and 2015/16, and courts struggled to meet demand over this period; the Crown Court appears to have prioritised dealing with the most urgent cases.*

Since 2015/16, waiting times in both the Crown Court and the magistrates’ courts have fallen. The Crown Court’s backlog of cases has shrunk particularly quickly. Courts did not need to become more efficient to improve performance after 2015/16 because the number of cases continued to decline, the complexity of cases plateaued and HMCTS spending in real terms increased between 2015/16 and 2018/19. The available evidence suggests that demand will decline further in 2019/20, with a substantial reduction in court sitting days planned.[95]

But criminal courts are an inherently ‘downstream’ public service. The government’s pledge to increase police recruitment[96] and allocate more funding to the CPS[97] may increase demand for courts if these changes lead to more cases being prosecuted.

Across the whole period from 2010/11 to 2018/19, criminal courts have had to make efficiencies to meet demand, which has fallen by less than spending.

* Waiting times increased less for the most urgent cases (those where defendants were on remand, who can only be held in custody for a limited period). Waiting times for defendants on remand increased by 37.5% – from 9.1 weeks in 2010/11 to 12.6 weeks in 2015/16 – while waiting times for defendants on bail rose more significantly – by 51.5%, from 15.6 weeks to 23.6 weeks – over the same period.

How will demand for the criminal courts change?

If the number of court cases (adjusted for case complexity) continues to fall in the way it has in recent years, current funding plans – which imply a small real-terms cut in HMCTS spending – will be sufficient to meet demand. But, in reality, the extra resources already promised to the police and the CPS are likely to increase demands on the criminal courts. If that happens, the courts will need more funding than current plans imply.

Court demand depends on the number and complexity of cases that the courts receive from the CPS and other prosecuting bodies; this will depend on the resources devoted to ‘upstream’ public services, most importantly the police and the CPS.

We measure demand for the Crown Court as the number of cases received, adjusted for average case complexity for different types of case (where we define complexity using the average hearing time). For the magistrates’ courts, we measure demand simply using the number of cases received.*

If demand continued to decline year-on-year at the same annual rate as it has done on average since 2010/11, demand on the courts would fall by 5.4% between 2018/19 and 2023/24. This projection makes courts one of only two services (alongside prisons) where we project that demand could fall over the next five years.

Projected spending and demand for criminal courts

Criminal courts

Projected increase in demand by 2023/24 -5.4%
Spending scenario Current government policy Recent trajectory Meet demand
Change in real-terms spending by 2023/24 -1.6% 6.5% -5.4%
Spending in 2023/24 (2018/19 prices) £2.0bn £2.1bn £1.9bn
Impact on unprotected government spending (2018/19 prices) -£0.2bn £0.1bn
Projected gap (2018/19 prices) -£0.1bn -£0.2bn -

Source: Institute for Government calculations. See Chapter 13, Methodology.

If this demand projection is correct (and if the criminal courts continue operating as efficiently as they did in 2018/19 and the costs of providing court services grow in line with economy-wide inflation), the government could reduce spending on courts by 5.4% in real terms by 2023/24 (as shown by the ‘meet demand’ scenario in Table 10.1), while still maintaining the scope and quality of the service. This equates to a reduction in court spending of £100m a year.

Any resumption of spending cuts would be a turnaround from recent years when HMCTS spending increased in real terms. If the government were to continue increasing HMCTS spending at the same rate as it has over the past three years, spending in 2023/24 would be 6.5% (or £100 a year) higher than it was in 2018/19 (as shown by the ‘recent trajectory’ scenario in Table 10.1).

The government’s decision to increase courts’ spending over recent years, even as budgets for other services have continued to be cut, suggests that it perceived a need to prioritise the courts, which it may continue to do. Another reason to think that court spending may need to increase (rather than fall) over the next few years is that, in practice, demand could well grow because spending ‘upstream’– particularly on the police and CPS – is likely to increase by much more over the next five years than it has over the previous nine.

The government intends to increase police numbers by 20,000 by 2023/24[98] and provide additional resources for the CPS.[99] These additional investments ‘upstream’ are likely to increase the number of cases that criminal courts will hear in the next few years. A greater number of police officers and more funding for CPS prosecution lawyers are likely to increase arrests and charging rates, translating into a higher number of criminal court cases.

If the government wants to ensure that the criminal justice system can both manage these extra demands and maintain standards, then extra money in one part of the criminal justice system will need to be matched elsewhere.

The 2019 spending round awarded the MoJ (from which the HMCTS budget comes) among the biggest proportional budget increases for 2020/21, suggesting that the courts are likely to be provided with extra resources in that year. This is factored into our ‘current government policy’ scenario in Table 10.1.

But, as that scenario shows, if the government wishes to sustain that funding in later years, it would need to increase planned spending on currently unprotected services – or cut unprotected services outside the justice system more deeply – because current plans imply that real-terms spending on unprotected services will fall after 2020/21. This would leave HMCTS spending 1.6% lower in real terms by 2023/24 than it was in 2018/19, despite planned increases in 2019/20 and 2020/21.

* For a full explanation of how we project demand, see Chapter 13.