Enormous court backlogs mean victims of crime are facing years of unacceptable delay in their quest for justice

This article was first featured in Dame Vera Baird’s 2021/22 Annual Report, published on 21 June 2021.

Court delays can exert tremendous tolls on victims. Many victims’ lives are effectively put on hold as they await their time in court – and the wait can often be counted in years. There’s no denying these delays will severely test victims’ resolve. We cannot be surprised that increasing numbers are deciding they are unable to stay the course. That represents a serious and fundamental challenge to the justice system itself. As well as a denial of justice to the individuals involved. It’s incumbent on the government to ensure that the system functions properly and victims have the right support to persevere and have a chance at justice.

Justice delayed is justice denied

There was a monumental effort by people working in the courts system to keep it up and running despite the challenges of the pandemic. Some hearings rapidly moved online. The key problem was jury trial and how to assemble twelve people to try a case whilst maintaining social distancing. In a few months plexi-glass was being fitted to facilitate this and other measures were put in place to help with the remaining logistical issues, new temporary courts were opened, and measures were put in place to conduct hearings safely.

But while few would doubt the commitment of court staff there was an inevitable increase in the backlog of cases. However, the government frequently asserts that it is the pandemic that caused this backlog. But the backlog was soaring long before March 2020.

Delays in the court system were endemic years before we’d even heard of COVID-19. Prior to the pandemic there were in excess of 38,000 cases outstanding in the courts. Legal professionals frequently took to the airwaves to decry the government limiting sitting days so that courts were sitting idle and victims facing long, anxious waits for their time in court.

Over the course of 2020, this already considerable backlog surged by over half (54%). There are now almost 59,000 cases outstanding in our Crown Courts, a quite extraordinary sum. This is leaving thousands and thousands of victims in limbo every year. Coupled with an urgent need for recruiting a high number of full-time judges there is a dangerous shortage of criminal barristers and part-time judges. This backlog seems to have also exacerbated the problems of last minute listing changes. Victims often face repeated chopping and changing of court listings, risking traumatised victims being brought to court only to be sent away to return at some indeterminate date months into the future/– further compounding court delays and the victim’s misery.

While there have been recent, tentative signs of recovery, there is still quite some way to go before courts even return to their pre- COVID levels. Although crown courts have seen a recent slight reduction in their backlog, it remains more than a third higher than where it was two years earlier.

These backlogs have real and tangible impacts on victims. Each one of these 59,000 cases is likely to have at least one victim. From when a case enters the crown court system, for cases where the defendant is going to trial and has plead not guilty, cases are now taking almost 15 months to be completed. This is 60% higher than two years earlier. Even before the pandemic campaigners were lamenting the poor state of affairs. These latest numbers are wretched. Many victims and witnesses are simply opting-out of the criminal justice process altogether, having gone into it to do their public duty and to see justice. This leaves them with no resolution and the public with the risk of a guilty criminal free to offend again. This represents a fundamental threat to our justice system.

Victims’ services: a lifeline for victims

I meet frequently with representatives from frontline victims’ services. They consistently tell me that court delays are placing them under severe, unsustainable pressures. Caseloads are significantly higher than pre-pandemic levels, as victims remain in the justice system for much longer. And engagement levels are significantly higher as victims are anxious about their delays and considering walking away. Hub staff are having to work hard to persuade victims not to withdraw and to persevere despite the system’s flaws. The organisations that support victims remain a lifeline to them – without them, victim attrition would be even higher.

We must ensure these services are appropriately – and sustainably – funded. The upcoming (and long-awaited) Victim Funding Strategy must recognise the growing strain victims’ services are under. They need to be funded for multiple years not just annually and given long-term resource on which they can draw in times of pressure to ensure that their vital services are sustained.

Special measures

Even before the pandemic I had highlighted the problems facing some victims when trying to achieve justice in court. Some victims and witnesses find the court experience more challenging than others either because of the nature of the crime they suffered or because of a specific vulnerability that makes this process more difficult for them.

In my 2021 review of Special Measures, I highlighted how these provisions in court were not always available to all who needed them. I have been championing the use of Section 28 hearings, where a select group of so-called ‘vulnerable’ victims and witnesses (those under the age of 17 or with learning difficulties) are able to have both their evidence-in-chief and their cross-examination pre-recorded on video, sparing them an anxious day in court. It also means that the evidence is given earlier, so the important details of the crime are still fresh in their minds. This provision has been rolled out nationwide since the start of the pandemic.

At least one courtroom in every Crown Court building in England and Wales can now provide pre-recorded cross-examinations for vulnerable witnesses. The government is to be congratulated on this. I am delighted, too, with the government’s commitment to expand this provision to all intimidated victims and witness, who will include adult victims of rape and sexual assault and modern slavery. The inclusion of intimidated witnesses is now live in 12 courts and its extension to another 14 courts was recently announced. It’s good to see progress and I am pleased to see this work gather momentum. This needs to be expanded across all of the courts in England and Wales as soon as is feasible to spare yet more victims from years of delays – and prevent yet more victims from walking away.

Remote Evidence Centres

Remote Evidence Centres are set up to help victims and witnesses give their best evidence, away from the pressures of the court. At the beginning of the pandemic, my office speedily undertook an exercise to count these remote evidence centres. At that time there were 27 that could be used. Since then we understand that a new booking system has been introduced and their use has been encouraged. Yet, worryingly, use of these centres remains low. This is disappointing.

My Special Measures report showed the fear that most victims face when coming into court is the risk of being confronted by the defendant and their supporters. The Criminal Justice in Wales Board, of which I am keen member, has an ambition for the default offer for vulnerable and intimidated witnesses to be S28 hearings and preferably for these to be conducted from Remote Evidence Centres. This is something I applaud, and England would do well to follow suit.

‘Screening the screens’

My Special Measures report revealed that many victims were unaware that defendants would be able to see their testimony on the court’s television monitors if they gave their evidence via live television linkvideo. This can be linked from a remote evidence centre as just set out or from a room outside the courtroom but within the court. Some victims and witnesses were uncomfortable at the thought of being seen by the defendant or the public gallery and, although they did not want to do so, sometimes agreed to give evidence from inside court behind a curtain to avoid that. We have to tailor special measures to victims and witnesses’ needs.

In the report I recommended that physically screening the live-link video screen from the defendant and the public gallery should be expressly offered to every vulnerable and intimidated witness. This puts them in the same position as someone testifying in court from behind a curtain. I am pleased that my recommendation has been accepted and 10 courts trialled ‘screening the screens’. My understanding is that there is now at least one court in every court building where the screen can be screened. It would be good to have more but I’m pleased to see this gaining traction.

‘Meagre’ reforms won’t do

Some progress has been made during my first three years as Victims’ Commissioner. But we need to see much more action to ensure victims are able to access justice swiftly. The court backlog represents a fundamental challenge to the justice system – and to victims in particular. The insufficient provision of special measures means people are not being protected from trauma as they should be and the flight from the criminal justice system being caused by the delays will only increase if victims services are not adequately funded to support them to stay the course.

The Public Affairs Committee recently called the Ministry of Justice’s plans to tackle the backlog “meagre”. Indeed, the Ministry of Justice forecasts as many as 48,000-52,000 outstanding cases by 2024. It simply cannot be accepted and normalised that victims are expected to wait years to see justice. The Ministry of Justice’s forecasts do not instil confidence and work in this area must be turbocharged – or we risk failing thousands of victims.

This article was first featured in Dame Vera Baird’s 2021/22 Annual Report, published on 21 June 2021.

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