Crown Court Criminal Case Backlog

Lord Keen of Elie Excerpts

Thursday 20th March 2025 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, I begin by extending my thanks to the noble Baroness, Lady Longfield, for her maiden speech and for the insight she gave on the issue of children in the justice system, an area where I know she will continue to make very important contributions to the proceedings of this House. I also thank the noble Lord, Lord Carlile of Berriew, for securing this debate on such an urgent and important issue.

I shall not seek to repeat all the damning statistics that we have heard already. In a sense, they speak for themselves. For far too many victims, justice now feels out of touch. For far too many accused, the resolution of a criminal complaint feels out of reach. Victims of serious crimes such as rape, murder and robbery are told that their cases will not be heard until 2027—or, indeed, as the noble Lord, Lord Stevens of Kirkwhelpington, pointed out, in some instances, 2028. Half of victims have had their Crown Court trials adjourned or rescheduled. This is not just a matter of inconvenience or inefficiency; it is a failure of society to deliver the justice that victims deserve and expect, and it is a failure of our society to give accused their right to resolution of a criminal complaint within a reasonable and rational time.

Listening to these contributions, I note that some would adopt the view that there is somehow an absolute right to trial by jury. I would not accept that proposition. Almost 90% of criminal complaints are disposed of without the requirement for a jury. It may be regarded as some sort of fundamental right, but it is not absolute, and we should not regard it as something that is inviolate.

We face a situation in which the proposal for modest change or careful and moderate improvements is simply not going to be enough. The present Lady Chief Justice has pointed out that the backlog continues to increase, despite the best efforts of the Ministry of Justice, the courts and the legal profession to see it go otherwise. The noble and learned Lord, Lord Burnett of Maldon, her predecessor as Lord Chief Justice, again pointed to the situation we are in as being, in essence, in need of “radical change”. Radical change is the only thing that is going to improve matters in the present situation.

We heard from a number of noble Lords about the difficulty of maintaining the appropriate number of lawyers at the criminal Bar. Indeed, it is clear that, over many years now, recruitment to the criminal Bar has been rendered far more difficult by reason of the very limited legal aid made available to those who practise in that critical and important area. The noble Baroness, Lady Levitt, also made the point that there is an impact not only on the practising Bar but on the judiciary themselves, who in many instances feel overburdened by the situation that has been allowed to develop in the last few years.

We have to look at how we can approach this. I would respectfully adopt the view already expressed by the noble and learned Lord, Lord Burnett, and the noble Baroness, Lady Hazarika, and touched on by the noble Lord, Lord Faulks, that we should look at some sort of intermediary court structure. There is clearly room to deal with the either-way cases that, I understand, represent some 40% of the existing backlog in the Crown Court.

There are a number of ways in which it could be done. The adoption of something similar to the Diplock courts, with a Crown Court judge sitting with two magistrates, for example, would be one way forward. Whether that should deal with only specified offences or whether it should deal with, for example, a sentencing power of up to two years, or, I might venture, up to five years, is a matter for debate and cannot be resolved at this time, but there is clearly a need to address that issue and to potentially introduce such an intermediary court.

With respect, I do not accept the suggestion of the noble Lord, Lord Carlile, that this would give rise to a greater number of appeals. As I understand it, that was not the experience with the Diplock courts in Northern Ireland but again, that issue bears examination. It will also be necessary to take into account the point made by the noble Lord, Lord Meston, on the impact of non-jury trials on certain parts of our society. I appreciate the importance of that, but it can be examined going forward.

The reality is that we cannot continue as we do at the present time. We cannot continue with a backlog in the Crown Court that is simply increasing. It is out of control. There are some interim measures that can be taken. The noble Lord, Lord Stevens, referred to the Nightingale courts. I understand that about 60 were established, of which only about 16 are in use at present. The question then arises of whether we have the judiciary to man those additional courts. Do we have the practitioners at the criminal Bar who will be available to prosecute and defend in those additional courts? There are so many factors coming together here that create not just one problem but a chemistry of problems, which cannot be resolved by one or two simple steps. It will take a leap of imagination by the Minister and his department to address this in a capable, credible and effective way.

My noble friend Lady Porter of Fulwood and the noble Lord, Lord Lemos, made an important point. There is an inextricable link between the present, increasing backlog and the immediate problem that we face with our prison population. I understand from the Library statistics that something like 20% of our prison places are taken up by prisoners on remand. Of those, a very large proportion represent what would be regarded as either-way cases. If we can relieve the backlog, one immediate advantage may be that we take some of the pressure off our present prison estate.

We must look at this in the round. It is not just a case of saying that we need more judges. It is not just a case of saying that we need more to pay lawyers more—although I always think that is a very good idea. It is not a case of saying that we need more courtrooms, or of saying that we can just introduce an intermediate court. We have to bring all these features together. Having regard to that, we are immediately faced with the issue of resources.

Can I make this request of the Minister? Will he ensure that he passes the Hansard report of this debate to his colleagues in His Majesty’s Treasury?