Crown Court Criminal Case Backlog

Lord Meston Excerpts

Thursday 20th March 2025 Lords Chamber

[Lord Meston (CB)]

My Lords, the essential causes of the backlog we are debating are clear enough. They are to be found in prevalent austerity measures, underfunding of legal aid, sales of the court estate and underinvestment in the remainder—and what has been described as the unmitigated disaster of the privatisation of the Probation Service. A bad situation was made worse for the courts and their users by the pandemic, some of which I spent in a subterranean Nightingale court. The response of all court staff to the pandemic was impressive and should be acknowledged.

The effects of the backlog are also clear, particularly for victims. The courts have to prioritise some types of case, inevitably to the disadvantage of others. Delays impair the court process: evidence gets mislaid, witnesses disappear or disengage, and juries require specific necessary directions on the effect of passing time on memories of events and on the availability and reliability of witnesses. Of particular concern to family judges are cases in which there are parallel proceedings in a criminal and family court. It used to be possible to defer hearing a family case likely to be determined by the outcome of a criminal case. Delays now mean that that simply cannot be done. The situation is now reversed, with charging decisions often awaiting the decision of a fact-finding hearing in the family court. That produces yet further delay in the criminal case and prolonged uncertainty for the family, and the children in particular.

In the short term, clearly courts and the court estate should be worked to full capacity without artificial and frustrating restrictions on permitted sitting days. That would allow for the use of trial and sentencing blitzes, and more use of part-time judges, including those authorised to sit in retirement. However, I agree with the noble and learned Lord, Lord Bellamy, that it is really time to end the fiction that listing is a judicial function.

Longer term, consideration should be given to the Bar Council proposal requiring Crown Court trials to start within six months of the first hearing. In time, this will prove no more unrealistic than the 26 weeks for disposal of public law children’s cases in the family court, to which legal and other professionals have responded resolutely. That should be underpinned by rigorous case management by procedural judges, relieving the full-time judiciary—particularly in smaller court centres—from work which cuts into and holds up listed and ongoing trials.

Time does not permit the consideration of the longer-term suggested solutions eroding jury trials, but we should recall the Lammy review and research that concluded that the one stage in the criminal justice system at which minority groups do not face disproportionality is when a jury reaches a verdict.