Spending across the entire courts and tribunals system has fallen by 19% since 2010/11, with additional fees introduced in non-criminal parts of the system. With almost a third less staff in the HM Courts and Tribunals Service (HMCTS) than in 2011, courts are dealing with fewer, but more complex, criminal cases – more of which are going ahead as scheduled. But problems with court administration persist, and government will need to ensure it has the flexibility to respond to changes in case volume as transformation to a smaller, more digital estate gets under way.
Spending on courts and tribunals has fallen by 19% since 2010/11.
Operational – or everyday – spending by the HMCTS has fallen by 19% in real terms since 2010/11. HMCTS administers the entire courts system – which deals with criminal, family and civil cases – and the tribunals system, which deals mainly with employment, immigration and benefits cases. HMCTS is an executive agency within the Ministry of Justice (MoJ), a department that was not protected in the 2010 or 2015 Spending Reviews.
HMCTS’s overall spending rose slightly in the last year, following a £700m investment at the 2015 Spending Review. This was made with a view to generating savings of £200m a year by 2019/20, through a major transformation programme encompassing greater use of digital technology, modernisation of court buildings, and rationalisation of the courts and tribunals estate (see Box 4.1).
Box 4.1: Courts transformation programme
More than £1bn is being invested in transforming the wider courts and tribunals system. This transformation has two key pillars:
Estates: The transformation programme aims to reduce the size of the courts and tribunals estate to encourage more efficient usage: HMCTS notes that in 2015, 48% of all court and tribunal buildings were empty at least half of hearing time; 86 court and tribunal buildings were slated for closure by September 2017. There is also a move towards more flexible operating hours, although this is on pause until February 2018 to allow for further consultation.
Digital: In some cases, online courts will make decisions ‘on the papers’, where representations are made online to a judge, who deals with them outside a traditional courtroom. For some minor offences, defendants will be able to accept convictions and pay fines online., 
Government expenditure on HMCTS has fallen by more than the headline figure: by 35% between 2010/11 and 2015/16.20 This difference is the result of charging additional fees to users in the non-criminal parts of the system, a move that was controversial. In July 2013, fees were introduced for those taking claims to employment tribunals, but the UK Supreme Court ruled against this change in July 2017, with the MoJ committing to refunding users who have been charged. Although a criminal courts charge was introduced in April 2015, it was scrapped just nine months later.
Other changes appear more enduring. In 2014, the Government introduced some new fees, and raised others, in the civil, family and probate parts of the system. This move aimed to ensure full cost recovery for relevant services, and the Government used its powers to charge enhanced fees – over cost – in some instances. These fees must be used to ensure an efficient courts and tribunals service, meaning that there is some cross-subsidy within HMCTS, whose staff and estate cover criminal and non-criminal courts.
HMCTS has lost more than a quarter of its staff since its formation in 2011.
Since the formation of the HMCTS in April 2011, numbers of FTE staff have fallen by 29% (from 19,850 in 2011 to 14,000 in 2016). The steepest reductions occurred in the year after HMCTS’s formation, but have continued since. Further reductions, especially among administrative staff, are expected as the courts system continues its move towards greater use of digital ways of working.
Although HMCTS is responsible for the whole courts system, there are other bodies whose staff impact on the progress of criminal cases through the courts. This includes the Crown Prosecution Service (CPS) which decides whether to prosecute an alleged offender. Since 2010, the CPS has lost one third of its staff (from 8,240 to 5,490 by the end of 2016).
The size of the judiciary may also affect the speed with which criminal cases progress. Magistrates must retire at 70 – and currently 57% of magistrates are aged 60 or over. The Judicial Appointments Commission (JAC) and others have raised concerns about recruiting new judges, and there is some evidence of an emerging problem: in a recent recruitment drive for 55 new Crown court judges, only 44 roles were filled. The 2016 Judicial Attitude Survey found that 74% of salaried judges feel their pay and pension entitlements do not adequately reflect the work they have done and will do before they retire.
Courts are receiving fewer criminal cases…
Three types of court are primarily responsible for dealing with criminal cases: magistrates’ courts, Crown courts and youth courts. All criminal cases begin in magistrates’ courts, and 90% of cases stay there – including all less serious ‘summary’ offences (such as motoring offences). Some more serious ‘either way’ offences may be passed on to Crown courts; and the most serious ‘indictable’ offences, such as murder and robbery, are always passed on to Crown courts.
Between 2010 and 2016, the number of criminal cases received by Crown courts fell by 23% (from 152,791 to 117,221), possibly reflecting a longer-term general downwards trend in surveyed crime – although crime rates are difficult to accurately measure, and only a small proportion of offences committed actually end up in courts. Decisions made by those outside the courts system – such as the police and the CPS – as well as changes to law can all affect the number of criminal cases received by the courts. In magistrates’ courts, which receive a much higher number of criminal cases, the number of cases has remained broadly flat: at 1,529,030 in 2016, 0.5% below 2013 levels (the first year for which there is complete data). This reverses a longer-term trend: in Crown courts, the number of cases consistently grew between the mid-2000s and 2010.
…but more complex cases and longer hearing times mean that court activity isn’t necessarily falling.
The activity of criminal courts is not solely determined by the number of cases received: the kinds of case being received also have significant implications for activity levels. The make-up of Crown courts’ caseload is changing. The number of sexual offence cases has risen by 17.6% since 2010 (from 7,922 in 2010 to 9,316 in 2016), so that they now represent 13% of all cases before Crown courts. In part, this reflects a rise in historic sexual abuse cases. The NAO has also pointed to rising numbers of cases related to organised crime, drugs and terrorism, which can involve complex evidence and multiple defendants. This increasing complexity can add to courts’ workload, even as the numbers of cases are falling: the Lord Chief Justice wrote 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”.
The impact of this on court activity is borne out by rising average trial hearing times. Between 2010 and 2016, the average hearing time for all Crown court cases in which defendants pleaded not guilty rose from 11.4 hours to 13.8 hours – an increase of 21%. The NAO has highlighted Birmingham Crown Court, which has seen an increase in complex trials with multiple defendants and related to drugs and fraud, and where average hearing times rose from 13.3 hours in the period between April and August 2014 to 24.5 hours in the same period in 2015.
Therefore, despite the falling numbers of criminal cases before the courts, the changing nature of those cases means that activity within courts is not necessarily falling, as cases take longer to hear. Alongside the changing mix of cases before the courts, it has also been suggested that longer hearing times may reflect a rise in self-representation among defendants (see Box 4.2).
Box 4.2: Increasing self-representation
Between 2010 and 2016, the proportion of defendants in Crown courts represented by an advocate, but with no solicitor rose, from 2% to 15%.
In 2016, 36% of defendants with representation had two or fewer hearings, compared with 16% of defendants with unknown or no representation.
31% of Crown court defendants with no or unknown representation had six or more hearings in 2016, compared with 17% of defendants with representation.
The proportion of criminal trials going ahead as planned has improved – but delays due to problems with court administration persist.
If a criminal trial goes ahead as scheduled, it is classified as ‘effective’. In a Crown court, this means a jury being sworn in on the appointed day irrespective of whether a verdict is reached; in magistrates’ courts, an effective trial is one that begins as scheduled and reaches a conclusion.
In both kinds of court, the proportion of effective criminal trials has risen since 2010: from 43% to 47% in magistrates’ courts; and from 44% to 51% in Crown courts. The proportion of ‘cracked’ trials – which collapse on the opening day of a trial, for example because a witness doesn’t turn up – has also fallen, from 43% in 2010 to 34% in 2016.
However, problems with court administration remain persistent. In 2010, of all ineffective trials in Crown courts, 22% were due to problems with administration; this rose to 25% by 2016. This makes problems with administration one of the major drivers of ineffective trials.
Trial ineffectiveness can be due to factors outside of the courts system – for example, problems with passing information between the defence and prosecution. Two reform programmes are currently under way to improve effectiveness by better engaging all those involved in the system: the Better Case Management programme (which aims to reduce numbers of hearings on a case) and Transforming Summary Justice (which seeks to improve the sharing of information between all agencies).
And there are signs of queueing in the system.
It is important for all those involved in a case that a trial proceeds in a timely manner. Since 2010, the average time between a case being sent to the Crown court, and the beginning of substantive hearings, has lengthened. This increase has been greater for triable-either-way cases (from 14.1 weeks in 2010 to 20.4 weeks in 2016) than for more serious indictable offences (which rose from 19.3 weeks to 21.4 weeks in 2016). This indicates that Crown courts are prioritising more serious cases.
Courts also prioritise cases in which defendants are on remand, as such defendants can only be detained in custody for a limited time. Waiting times for the beginning of substantive hearings for defendants remanded in custody for indictable cases have fallen slightly from 15.5 weeks in 2010 to 15.1 weeks in 2016; and for triable-either- way cases have risen, from 9.2 weeks in 2010 to 12.2 weeks in 2016 – below the waiting times for non-remand defendants.
A key determinant of waiting times between a case being sent to the Crown court, and the beginning of substantive hearings, is the volume of cases received. Waiting times can display a cyclical pattern, as HMCTS alters the number of judges available to hear cases in response to demand. This takes time, creating lags in the system where waiting times, and case backlog, increase. Between 2012 and 2013, the number of criminal cases received by Crown courts increased (from 133,371 to 139,922), requiring increased judicial resources.
This may explain much of the notable rise in waiting times in 2013. The number of outstanding cases in Crown courts jumped from 39,586 in 2012 to 49,227 in 2013 and then 55,116 in 2014. It was not until 2015 that this backlog began to fall, reaching 42,149 in 2016. Some other factors may also contribute to increased waiting times, including the increase in the number of complex cases before the courts, which require more preparation: in 2016, offence groups with the longest waiting times were fraud and sexual offences. The NAO has also identified the abolition of committal hearings – administrative hearings held in magistrates’ courts to formally send either- way cases to Crown courts – as affecting waiting times in 2013, as Crown courts began to receive cases earlier.