Justice Committee launches inquiry as Covid-19 stretches delays in justice

The Commons Justice Committee has published a report on the significant crisis in delays to court cases – and therefore justice – exacerbated by the Covid-19 pandemic. The report is Coronavirus (Covid-19): The impact on courts.

The Committee has also announced an inquiry into ways in which the delays may be dealt with. The inquiry is to be called Court Capacity. It will review the practical experience of delays in the courts for lawyers, witnesses, victims and defendants. It will investigate whether the increase of 4,500 court sitting days will be sufficient to clear the backlog of cases and what long term solutions to the delays, including digital hearings, may be possible.

The full terms of reference for the inquiry can be found on the Committee website. Individuals and organisations wanting to contribute written evidence based on the terms of reference are invited to send submissions to this address. The deadline for written submissions is end of business day September 7. The first oral evidence session is expected to be in late September.

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Delays in the justice system are not just numbers. Victims of crime will have to wait longer to know if they will get justice. Defendants awaiting trial will spend longer on remand in custody or out on bail in the community.

The virus pandemic has caused an already large backlog of court cases to grow, in the Crown and Magistrates Courts together, to over 450,000. In terms of jury trials alone, the Lord Chief Justice, Lord Burnett of Maldon, told the Committee cases were accumulating in the order of 1000 a month.

The situation is not as bad in certain civil courts and tribunals. Lord Burnett told the Committee that, in business and property courts, “in the region of 80% of normal business is being transacted”. In the Family Courts, however, a backlog in cases has been exacerbated to the extent that the Lord Chancellor and Secretary of State for Justice, Robert Buckland QC, has told the Committee he is “concerned”.

Crown Court jury trials have been dramatically changed by the necessity of social distancing. The guidelines have meant that each trial requires three courtrooms – one for the judge, jury, advocates and defendant; one for the press and public; and one for the jury to gather and deliberate in private. There have been suggestions from various quarters that juries may be reduced in size to mitigate delays, or even, in some cases, juries replaced by panels of judges and magistrates. The Attorney General, Suella Braverman, told the Committee:

“There are lots of options on the table, but it is clear that the right to trial by jury is not going to be compromised and will remain intact”.

The Committee welcomes this assurance.

The Committee report pays tribute to the fact that courts and tribunals have continued to function throughout the pandemic. Futhermore, one of the clearest lessons of the crisis response since March 2020 has been how quickly the justice system can respond – especially in applying new technology – when needed.

Nevertheless, the pandemic has had a major impact on the criminal justice system. The Committee is particularly concerned by the effect on defendants who allegedly committed an offence at the age of 17 but turned 18 before their day in court. These defendants face possible conviction as adults, with longer sentences. They also lose access to crucial youth offending services. The Committee said the Ministry of Justice (MoJ) should set out how many defendants are in this position and explain what is being done to address the issue.

The Committee was also critical of the lack of basic data available to the judiciary. The Lord Chief Justice told an evidence session of the Committee:

“What I have been trying to find out – we have not got there quite yet, I am afraid – is to identify with much more clarity how many trials we have, how many are trials with defendants awaiting trial in custody and how many are defendants awaiting trial on bail.”

The Committee called on the MoJ and Her Majesty’s Courts and Tribunals Service (HMCTS) to set out, with a timeline, how the provision of basic management information, of the type sought by the Lord Chief Justice, is to be achieved.

The pandemic has kick-started a significant increase in the use of technology in the justice system of England and Wales. HMCTS data shows that the number of cases heard each day with the use of audio and video technology increased from fewer than 1000 in the last week of March to over 3000 by mid-April. The Committee said this is a substantial achievement.

A study by the Civil Justice Council and the Legal Education Foundation found that a large majority of lawyers described their experience of the new technology to be positive. However, there is an absence of data so far on how lay users of the system – for example witnesses and defendants – have found the digital technology. Lawyers and judges are likely to have access to – and grow familiar with – better equipment than lay users. But the issue is not just one of good kit and strong wi-fi. The Committee expressed particular concern for vulnerable court users, especially young people or people with cognitive difficulties. The Nuffield Family Justice Observatory said in a review of Family Court hearings that a lack of face-to-face contact in digital interactions “made it difficult to read reactions and communicate in a humane and sensitive way”.

The Lord Chief Justice sought to reassure the Committee that the shift to the digital delivery of justice will not disadvantage those who have difficulties with remote hearings. He said:

“The general proposition is that, when we are back into normal times, nobody will be forced to use digital engagement with the courts if they are not able to do so. That is always an absolutely fundamental starting point. That will not change”.

The Chair of the Justice Committee, Sir Robert Neill, said:

“Justice delayed can be justice denied. More and more people are waiting for their day in court. We welcome the Government's attempts to reduce the backlog by thinking beyond simply increasing sitting days. We also urge it to ensure that access to justice remains at the heart of its proposals. We are impressed by the way new technology has been used by courts to speed things along in some cases, but more research is needed on how ordinary people – defendants and witnesses – experience this technology. Fair hearings require the engagement, comprehension and comfort of all those involved.”

FURTHER INFORMATION:

Committee Membership: Sir Robert Neill (Conservative, Bromley and Chislehurst) (Chair); Paula Barker (Labour, Liverpool Wavertree); Richard Burgon (Labour, Leeds East); Rob Butler (Conservative, Aylesbury); James Daly (Conservative, Bury North); Sarah Dines (Conservative, Derbyshire Dales); Maria Eagle (Labour, Garston and Halewood); John Howell (Conservative, Henley); Kenny MacAskill (Scottish National Party, East Lothian); Kieran Mullan (Conservative, Crewe and Nantwich); Andy Slaughter (Labour, Hammersmith).