Clearing the logjam

Reducing the Crown Court backlog by reducing the Crown Court backlog

The proposal that the right to jury trial be circumscribed is not motivated by a belief or evidence that the alternative is better it is motivated by money and the chronic lack of it. Not just a lack of money now but insufficient resourcing for the last 15, if not 20 years.

Like a car that has not been serviced for a decade when you look under the bonnet of the criminal justice system there is a real risk that the only solution seems to be a write off. It is plain that the Government recognises that reducing the Crown Court backlog is now an imperative, an emergency even.

What is being suggested is an alteration to processes. Keeping more cases in one court (magistrates), creating a new court (judge and magistrates) and adjusting sentences and reductions for guilty pleas.

However, it is unclear to what extent that will actually reduce the backlog and even the best algorithm would struggle to predict what the impact might be in real numbers. There is though a simple solution to reducing the backlog and that is by reducing the backlog. That might sound tautologous but it is not. The state decides who to prosecute and for which offences. The state is not compelled to prosecute those people.

Unlike the NHS which has no control over how many patients walk through the doors of GP practices and hospitals defendants are only in court because the state has put them there. It can put them there and it can take them out.

Removing defendants from the criminal justice system is not a policy proposal on the table because it is politically unpalatable but the fact is that is the only realistic way in which the Crown Court backlog can be reduced by the kinds of numbers that MIGHT, with sufficient investment, restore the system to equilibrium.

Here is a list of Lord Chancellors since the late 1980s and their appointment dates:

Lord Mackay October 1987

Lord Irvine May 1997

Lord Falconer June 2003

Jack Straw June 2007

Kenneth Clarke May 2010

Chris Grayling September 2012

Michael Gove May 2015

Liz Truss July 2016

David Lidington June 2017

David Gauke January 2018

Robert Buckland July 2019

Dominic Raab September 2021

Brandon Lewis September 2022

Dominic Raab October 2022

Alex Chalk April 2023

Shabana Mahmood July 2024

If the dignity and value of a political office was measured by the duration for which it was held you might reasonably surmise that the Lord Chancellor’s role is neither dignified nor valued.

Some Crown Courts are fixing trials in 2029, four years away, or 5 Lord Chancellors away going by the current rate of change. This decline in continuity of leadership has meant no one politician has taken proper charge for the administration of criminal justice in this country and the caretaker nature of the role has not seen very much care taken.

What is required is a Lord Chancellor and a Prime Minister with the courage to take the kind of action that will stop the ship from sinking entirely.

Here are two questions that I suggest need to be asked in relation to every single case in the Crown Court backlog. Every negative answer would help reduce the mountain to a manageable molehill.

1. Does this defendant have to be prosecuted at all?

Prosecutors in deciding whether to charge a suspect have to be satisfied that there is a realistic prospect of conviction AND that it is in the public interest to prosecute them. That test remains live all the way to verdict. Contrary to what many believe and assert the government does not order prosecutors to make charging decisions. Nor is it the function of judges to tell prosecutors whether to initiate or discontinue prosecutions. The expectation and requirement is that prosecutors will exercise their discretion properly, fairly and independently.

Does a backlog of 1,000 cases have a bearing on the public interest test, what about 10,000? What about 100,000? If no reasonable time can be found in the court diary to try the rape of a child promptly does it really remain in the public interest to prosecute a first timer for the supply of a few wraps of cannabis?

2. Does this defendant have to be prosecuted now?

For the sake of argument let’s say it really is, even allowing for the gigantic backlog, in the public interest to prosecute a defendant. Is it absolutely necessary to prosecute them NOW? Here I have a suggestion which I’ve not seen mooted but I think is worthy of at least consideration. DPAs or Deferred Prosecution Agreements exist as a concept within our criminal justice system but they are vanishingly rare and really only apply in relation to those white collar cases that (some suggest) might be beyond the wit or patience of Joe Public.

Why don’t we massively increase and broaden their application? Take a case that has been deemed in the public interest to prosecute. If it’s not going to get a trial until 2027, 2028 or 2029 at what stage does that delay become unconscionable and totally inimical to anyone’s conception of justice?

If we empowered lawyers to propose and judges to apply a temporary stay on the prosecution for a period up to 5 years cases could be removed from the system on the proviso that if the defendant offends during that period the prosecution could be resumed. This would be a bind-over, with teeth, for those that know what bind-overs are.