As the representative bodies for barristers and solicitors, we are alarmed by the backlog of cases in the justice system. Justice is being delayed for victims and defendants, who have proceedings hanging over them for months, if not years.
These problems are not new, although exacerbated by Covid-19. The backlog in the Crown Court approached 40,000 cases even before the crisis, despite there being judges available, as the government did not fund the judicial time needed.
Some of the options the government is currently considering present a threat to the credibility of our justice system, including interfering with jury trials and opening courts for extended hours, including Saturdays and Sundays.
Jury trial is at the heart of our criminal justice system. It is vital to the rule of law because, as jurors, ordinary people are directly involved in judging trials, giving confidence in the justice system. It is the collective life experience and expertise of members of a jury that ensures evidence is tested robustly and the public can be confident that justice is delivered. Eroding the right to jury trial is an extreme measure that requires complete justification. We have seen no government modelling that supports such a move, let alone a justification for removing the right to trial by jury. If this is ever to be considered, the foundation for it must be unassailable.
Extending court hours comes at a big financial cost to the taxpayer: who else will pay for the court staff, judges, probation officers and security staff to attend court? Such a move will make it even more difficult for those parties, victims and witnesses depending on public transport to get to court on time or get home safely. It will be impossible for many solicitors to service this work on top of being on call to police stations out of hours and with swathes of them furloughed with no income to pay their salaries. This move will undoubtedly adversely affect many advocates: women (mainly) with caring responsibilities and those at greater risk from Covid-19 such as BAME practitioners (forced to travel in rush hour when they are more exposed).
There is a better way. We endorse the multi-faceted approach to increasing capacity and are actively engaged in driving it forward: more efficient use of the current court estate, greater use of part-time judges, better and greater use of robust technology and additional court buildings, similar to the “Nightingale” hospitals. These “Blackstone” courts would use public or private buildings currently lying idle. Local barristers and solicitors are identifying suitable buildings to add to the court. This combination of solutions would allow safe distancing in existing buildings, add overall capacity to the number of court rooms, and be convenient for participants. We urge the Ministry of Justice to work at pace with us to find practical and sensible ways to address the volume of cases being heard. It is only if or when this multi-faceted exercise has been shown not to address the volume of outstanding cases that the government should even consider tampering with constitutional and established methods of determining justice.
Barristers and solicitors will continue to play their fundamental part in keeping the justice system afloat. We are already adopting new ways of working successfully to drive justice forward but the rule of law must not be undermined. We will not support any steps to remove the right to jury trials.
Amanda Pinto QC, Chair, The Bar Council of England and Wales
Simon Davis, President, The Law Society of England and Wales