National Audit Office report on Reducing the backlog in criminal courts

The backlog of cases in the criminal courts is likely to be a pervasive issue for several years, severely affecting victims, witnesses and defendants, according to a report by the National Audit Office (NAO).

The COVID-19 pandemic significantly affected the work of the criminal justice system, requiring extensive changes in criminal courts to keep judges, court staff, and service users safe. By the end of June 2021, the backlog of cases waiting to be heard or completed was nearly 61,000 cases in the Crown Court and more than 364,000 cases in the magistrates' courts.¹ The Crown Court is where more serious trials take place and where the backlog is acute.² 

The backlog in the Crown Court had already increased by 23% in the year leading up to the pandemic, partly because the Ministry of Justice (the Ministry) allocated an insufficient number of court sitting days. The backlog increased significantly during the pandemic, from 41,045 on 31 March 2020 to 60,692 on 30 June 2021, albeit at a much slower rate since March 2021.

The Ministry expects significant backlogs to continue in the Crown Court for several years, and the number of cases waiting could be between 17% and 27% higher than pre-pandemic levels by November 2024.

The backlog in criminal cases means victims, witnesses and defendants are waiting longer for their cases to be heard. Between 31 March 2020 and 30 June 2021, the number of cases older than a year in the Crown Court increased from 2,830 to 11,379 (302%) and from 246 to 1,316 (435%) for rape and sexual assault cases. Waiting times increased most in London, with the average age of a case increasing by 63% from 164 days on 31 March 2020 to 266 days on 30 June 2021. Delays could increase the risk of individuals withdrawing from the process and cases collapsing.

Today's report finds that Her Majesty's Courts and Tribunals Service (HMCTS)3 responded quickly in the early stages of the pandemic, prioritising peoples' safety and access to justice for urgent cases. It launched a courts recovery programme which increased Crown Court capacity by 30% between September 2020 and July 2021 through opening temporary courtrooms and modifying others.

The Ministry and HMCTS have a poor understanding of the impact the pandemic and recovery programme have had on court service users from ethnic minorities and vulnerable groups. The NAO found there has been slow progress in evaluating how vulnerable users have been affected by, for example, remote access to justice. There is also no evidence that the Ministry has any data on users' ethnicity to carry out meaningful analysis on whether ethnic minority groups have been disadvantaged.

The Ministry's progress with the ambitious long-term plan to support recovery in criminal courts hinges on securing funding and resources. The plan aims to take a whole-system approach to recovery, including monitoring the impact of initiatives in one part of the criminal justice system on other areas. The Ministry recognises that it still needs to assess the costs of various initiatives, collect more evidence to understand what supports better case quality and court effectiveness, and recruit more analysts.

The NAO has found that the Ministry and HMCTS are not yet working towards shared, strategic objectives for recovery in criminal courts. This makes it difficult for the Ministry and its agencies to align their plans or make strategic decisions about how to manage demand across the criminal justice system. These difficulties are exacerbated by long-standing issues with data which obscure the Ministry and HMCTS's understanding of future demand.

Other significant risks remain to the Ministry and HMCTS's efforts to reduce the backlog. These include long-term funding uncertainty as the Ministry estimates that it needs around an additional £500 million for criminal courts and £1.7 billion for legal aid, prisons and probation services to support recovery. The Ministry also recognises that recruiting enough judges to hear cases will be a challenge.

The NAO recommends that the Ministry should agree with other criminal justice agencies a set of shared, published objectives for recovery in criminal courts that consider the implications for the rest of the criminal justice system. It should also devise and implement a plan to tackle the systemic barriers to collecting, using and sharing data effectively across the criminal justice system.

Gareth Davies, the head of the NAO, said:

"Despite efforts to increase capacity in criminal courts, it looks likely that the backlog will remain a problem for many years. The impact on victims, witnesses and defendants is severe and it is vital that the Ministry of Justice works effectively with its partners in the criminal justice system to minimise the delays to justice."

-          ENDS    - 

 Notes for Editors

1. HMCTS does not distinguish between the outstanding caseload it says is required to run criminal courts efficiently and effectively and what they consider a 'genuine backlog' of cases. For this report, we have defined the backlog as all cases waiting to be heard or completed. There are limitations to this definition, set out in Appendix Two.
2. The backlog in the magistrates' courts has been recovering since a peak in June 2020.
3. Her Majesty's Courts and Tribunals Service (HMCTS), an agency of the Ministry of Justice, provides the system of support, including infrastructure and resources, for administering criminal, civil and family courts in England and Wales and tribunals nationally.