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Courts backlog: Justice delayed is justice denied

In her 2020/21 Annual Report, Dame Vera Baird reflects on the Crown Court backlog of cases and its impact on victims.

The adage, ‘justice delayed is justice denied’ is still true today. The Crown Court backlog of cases is one of the biggest challenges facing the criminal justice system.
Annual Report of the Victims’ Commissioner 2020 to 2021

The courts service has worked hard during the pandemic to get courts up and running despite many challenges. But the backlog of cases in the Crown Court now stands at over 59,000 and continues to grow.

We know some victims are now facing years of unacceptable delay in their quest for justice. I have heard of cases being listed as late as 2023. I hope these cases will remain outliers, but the overall trend remains that victims are waiting far too long in their quest for justice. The latest data suggests that in cases going to trial, on average, victims are waiting just under 50% longer once the case has been sent to the Crown Court, compared to pre-pandemic.

Delays prevent victims processing their trauma, with their lives put on hold as a result. This means some victims will simply decide to opt-out of the criminal justice process altogether, leaving them with no resolution and the public with the risk of a guilty criminal free to offend again. Over the past five years, there has been a steady increase in the number of cases where the victim withdraws pre-charge. In the last 5 years it has gone up from 9% (2014/15) to 26% currently. The problem is worst for the most serious, interpersonal offences like violence against the person, which has leapt from 24% in 2014/15 to 45% in 2019/20. Excessive delays in getting cases to trial may only exacerbate this trend. But delays for victims are nothing new and were endemic in our justice system long before COVID19. The case backlog before the pandemic stood at over 37,000. It has undoubtedly been exacerbated by the pandemic, but the pandemic is not how it started. The root cause was under investment, especially in sitting days for judges and part time judges.

So, while new Nightingale Courts and other measures introduced by HMCTS are welcome, the backlog will not be cleared overnight, and creative thinking is required if we are to keep victims engaged with the justice process long-term.

From my meetings with ministers and officials, I am in no doubt they are seized of both issues and are committed to addressing them. I welcome the announcement by the Lord Chancellor on 4 June that:

…for the next year at least, that our Crown Courts will be authorised to work at full throttle, to their maximum capacity. What this means in effect is that we have removed the usual restrictions on the maximum sitting days in the Crown Court, so that judges are free to unleash the full potential of the courts system and they can start to work through the high numbers of cases waiting to be heard.”

This is an important step in the right direction. However, further and significant action is required to reduce and eliminate what were already chronic backlogs in cases.

Victim support services

There is now a clear and pressing need for new and increased funding for victims’ services across the board. As the Lord Chancellor said in his speech of 4 June:

“Victims’ support services have been stretched like never before during this pandemic and I have been adamant all along that no victim should be left to suffer alone. Studies consistently show that victims are less likely to drop out when they have the right specialist support.”

Increasing delays mean victims remain on victims’ services’ books for longer and often require higher levels of engagement as they become increasingly frustrated. Many victims often have complex needs, which is complicated further by services having to adjust to COVID19-compliant working arrangements.

I welcome the additional funding provided by the government during the pandemic, but sadly the additional pressures placed on these services is likely to continue for some time to come. It is vital that the government provide the funding required to ensure no victim suffers alone.

Pre-recorded cross-examination of vulnerable and intimidated victims

Over the past year, the government has rolled out the facilities to offer pre-recorded cross-examination (known as Section 28) for vulnerable witnesses across all Crown Courts. This is a huge step forward. I want to see the use of s.28 ramped up. This method of giving evidence affords victims and witnesses so many advantages: the opportunity to give evidence without having to see the defendant and their supporters; the ability to give evidence while the offence is relatively fresh in their mind; and most importantly of all, the ability to put the process of giving evidence behind them reasonably promptly, without the anxiety of appearing in a court case hanging over them for years at a time.

The government has piloted extending s.28 to intimidated victims, including victims of sexual offences. The time has come to move with urgency and rollout the benefits of s.28 to these victims as well. I applaud the way HMCTS has actioned the rollout of s.28 to vulnerable victims at speed. My sense is that we need individual courts and individual judges to embrace these opportunities fully.

Remote Evidence Centres

I want us to make better use of Remote Evidence Centres – centres set up for witnesses to give evidence away from the court.

At the beginning of the pandemic my office undertook an exercise to count these and let HMCTS know how many there are nationally (27). Since then we understand that a new booking system has been introduced and their use has been encouraged but remains low. I know that efforts are being put in to maximise the use of these, and some can’t accommodate social distancing. When requirements for social distancing lessen, I would like to see the use of these ramped up.

There are many advantages to taking the witness out of the court building, avoiding meeting the defendant, being in a less stressful environment, maybe closer to home.

Better communication

Witness Care Units within police forces have a pivotal function in liaising with victims and witnesses. I think well-resourced Witness Care Units (WCUs) and good communication with witnesses are vital to making the situation better. Communication with victims and witnesses has long been below par and this has worsened under COVID19, as the system has struggled with scheduling.

WCUs are under unprecedented pressure, with caseloads doubling and cases staying on their books for longer and longer. We also hear that cases are becoming more serious, demanding more from these staff.

I am pleased MoJ is putting increased resource behind this pivotal role in the system, but I would like to have this confirmed and be sure that enough is being done to shore up this vital service. Each witness should have a dedicated caseworker in Witness Care. And the caseload of each WCU officer should not be unreasonable. This would mean that even if trials are delayed and court dates changed, witnesses will at least feel that they have been kept well-informed, and that they will have a named person that they can approach for updates.

Wider use of live-links

More witnesses are giving evidence via live link and there is a new welcome understanding that the live link screens need to be screened from the defendant and the public if witnesses are to have confidence.

Technological know-how in courts has improved. There is now a Digital Support Officer on site in every court, carrying out weekly checks of equipment and supporting staff with usage. I commend HMCTS for the speed which it has rolled out a number of technologies and processes in response to COVID19. But I would like to see even more done with these capabilities.

The introduction of the Cloud Video Platform has enabled hearings to happen remotely, and, in some cases, witnesses to give evidence remotely – so circumventing the fear associated with going to court. However, the Joint Inspection report on the impact of COVID19 on the CJS found waning use of this measure for victim/witness appearances and a preference for victims/witnesses to appear in person. If this is the case, we need to reverse this trend.

More Nightingale Courts

More Nightingale Courts are a good step forward. At the height of the pandemic, they provided a total of over 60 court rooms. I particularly welcome the fact that in the first ‘super courtroom’ in Manchester complex cases will be heard, including multi-hander trials. I understand some of these courts may revert back to their original use once lockdown is lifted. The government needs to identify further temporary sites for court rooms so that HMCTS can build capacity.

This article was first featured in Dame Vera Baird’s 2020/21 Annual Report, published on 21 July 2021.