Courts and Tribunals: Sitting Days

Statement

The following Statement was made in the House of Commons on Wednesday 5 March.

“With permission, I will make a Statement on capacity in the Crown Court.

When this Government took office eight months ago, we received an inheritance from the Conservative Government that was little short of disgraceful: our prisons were in crisis, on the edge of collapse, and our courts faced a record and rising backlog. While the crisis in our prisons was more obvious and visible, the harm caused by the backlog in our courts cannot be overestimated.

Today, the backlog stands at over 73,000 cases. Just five years earlier, it had been half that figure. We should stop and consider that fact, because the backlog is far more than a number. Behind each case is a victim. Many have waited years for justice and some will now not have their cases heard until 2028. With delays that long, it is little wonder that more victims are dropping out, and tragically that is true of victims of the most heinous crimes. Just five years ago, around 3% of adult rape victims whose cases were due to go to trial dropped out before their case was heard. Today, that figure has more than doubled.

An old adage has sadly come true in this country: for far too many, justice delayed is justice denied. Unlike our predecessors, who allowed this backlog to rise and rise, this Government will bear down on it. We will deliver swifter justice for the victims of crime. That starts today with a record investment in our criminal courts.

Each financial year, the Government determine the total number of days that can be sat across all our courts and tribunals, commonly referred to as sitting days. This process is called the concordat. Last year, I committed to concluding the process earlier than in previous years to give our courts greater certainty. We have now done so, several months ahead of last year’s settlement, so today I can announce that the Government will provide a total budget of £2.5 billion for our courts and tribunals in the next financial year. That represents a record level of investment, which will fund up to 110,000 sitting days in our Crown Courts—4,000 more days than the previous Government funded last year. If the shadow Lord Chancellor would like to check the record books, he will find no higher allocation in recorded history.

Beyond the Crown Court, investment in the family and civil courts brings those jurisdictions to, or close to, their maximum capacity, and the investment in court capacity is matched by an investment in court maintenance. Our courts have been allowed to fall into a shocking state of disrepair in recent years, so this Government will boost funding to £148.5 million, up from £128 million last year. That will be the highest figure spent on maintenance and capital works in the last 10 years, building on a consistent theme of this new Government, and it is a marked difference when compared with our predecessors.

In our first eight months in office, we have consistently invested more in the courts than the last Conservative Government. On entering office, I immediately funded 500 sitting days on top of the allocation provided by the previous Lord Chancellor. At the end of last year, when resources allowed, I added a further 2,000 sitting days. In October, this Government also increased the sentencing powers of magistrates’ courts; previously, they could impose only a six-month prison sentence, which we lifted to 12 months. In doing so, we freed up capacity in the Crown Court to hear the most serious cases. That single change was equivalent to adding another 2,000 sitting days in our Crown Courts. All those changes are necessary for the swift delivery of justice.

However, I must be honest, in a way that my predecessors never were: this investment is necessary, but it is not sufficient to reduce the Crown Court backlog. Even with record levels of funding, if we do not take other, bolder measures, the backlog will grow. With a growing number of cases entering our courts and cases of increasing complexity being heard in front of our judges, we cannot simply do more of the same: we must do things differently. In December, I appointed Sir Brian Leveson, one of our most distinguished judges, to conduct a wholesale review of our criminal courts. The review will propose long-term reform as well as reviewing the efficiency and timeliness of court processes from charge all the way through to case completion.

Crucially, I have also asked Sir Brian to address something that too many others have avoided: the question of structural reform. Today, 10% of criminal cases are heard in a Crown Court, where a judge presides and a jury decides. Jury trials are a pillar of our justice system for the most serious offences, and that will never change. However, we must ask ourselves whether they are hearing cases that could be handled equally well elsewhere.

Some cases can already be heard in either a Crown Court or a magistrates’ court, which we call “triable either way” cases. Those represent 40% of the courts backlog, but while a conviction—whether determined by a jury or a magistrate—is the same regardless of the type of courtroom, the demand that it places on our justice system is very different indeed. An either-way case is resolved by magistrates five times faster than before a judge and jury. Justice must be done and criminals must always face consequences—on that, I know this House will agree—but we must be willing to ask whether a judge and jury should be occupied, at great length and expense, with crimes that could be dealt with more swiftly elsewhere.

For that reason, I have asked Sir Brian to consider the case for reclassifying some less serious offences, whether magistrates’ sentencing powers are sufficient and the case for a new court to sit between the magistrates’ court and the Crown Court. His recommendations will come later this spring. His goal and mine are one: to bear down on the backlog and deliver swifter justice for victims. The consequences of failing to do so are all too clear—the backlog in the criminal courts will rise, cases will be listed even further into the future, and more victims of crime will decide that the wait is too painful with justice so distant, and as a result, dangerous criminals will walk free.

Today, we have announced a record investment in our courts: 110,000 sitting days funded, which is 4,000 more than the previous Administration funded. For many victims, their case will be heard sooner, but if we are to deliver swifter justice for all, we must embrace reform. This Government will deliver once-in-a-generation reform of our courts, and we will reverse the decline and the delays of the last Conservative Government. I commend this Statement to the House”.

19:48:00

My Lords, although I recognise and welcome some of the changes the Lord Chancellor has made in this Statement, they are far from sufficient in tackling the court backlog. It is of course tempting for any new Government to blame the outgoing Administration for all they possibly can. For that reason, I want to focus my remarks on what has happened since this Government took office in July last year. On taking office, the Lord Chancellor was advised that at least 6,500 sitting days were available to tackle the growing court backlog—yet, instead of seizing that opportunity, the Lord Chancellor added only 500 sitting days, and still the backlog continued to expand. In response, the Lord Chancellor added a further 2,000 sitting days a month later, but by then the backlog had only worsened. Now, eight months after the Lord Chancellor assumed office, we learned last week that she is still rejecting available sitting days and, in a surprising admission, she conceded that the court backlog will only continue to grow. This is simply inexcusable. The Lord Chancellor said that victims will receive quicker justice—yet victims of serious crimes such as rape are being told that their cases will not be heard until 2028. This is not just a matter of inconvenience or inefficiency; it is a failure to deliver the justice that victims deserve and expect. So it is critical that we act now, before the backlog expands further. It is vital that we fully maximise our court capacity, utilising every available day and exploring every possible avenue within the judiciary to relieve pressure and create additional capacity—there of course being a distinction between system capacity and judicial capacity. I am confident that the Minister understands the importance of this. Cutting the court backlog will undoubtedly be a difficult task. However, it is essential that we have a clear plan and timetable for when this backlog will fall. So will the Minister tell the House by what date the Government expect the backlog to fall? Will he explain exactly why the Lord Chancellor did not, or will not, take up the 2,500 additional sitting days offered by the Lady Chief Justice? I look forward to hearing a clear and positive response.

My Lords, the Statement describes the Government’s inheritance from the last Administration on Crown Court capacity as little short of disgraceful. It was worse than that: it was an utter disgrace. Sadly, even with the measures announced in the Statement, an utter disgrace it remains. A once great system of criminal justice, admired internationally, has sunk to a level of service that has produced unpardonable delays; decrepit courts—and not enough of them; and underpaid and demoralised staff and lawyers. Offenders are in custody on remand for unacceptable periods and prosecutions are dropped on many occasions because victims and witnesses lose heart and abandon cases, lacking the confidence that they will ever see justice. When trials eventually happen, they are bedevilled by lapse of time and witnesses’ failing recollection. Overall, the level of public trust in our criminal justice system as a whole is rightly, abysmally low. Furthermore, the system would be even worse were it not for the tireless commitment of those who work within it, mostly underrewarded staff, lawyers and, in particular, our committed, indefatigable and independent judiciary, who struggle to keep the courts working with some semblance of order against overwhelming odds. This Statement represents a move in the right direction. To that extent, we welcome it, but it is not enough. The Secretary of State and Lord Chancellor recognise that. As the noble Lord, Lord Cameron, said, she has acknowledged that, even with the funding and measures she has announced, the backlog will grow. She pins her hopes on more radical measures of structural reform that may or may not be proposed by the Leveson review. These will take place only when the review has reported and its recommendations have been implemented. Far more extensive measures are needed now to bring down the backlog. There is, after all, no significant saving of resources in keeping people hanging around for long periods—often running to years—with their lives largely on hold because we cannot get cases to trial. I do not question the Government’s recognition of the seriousness of the crisis they inherited and we now face, but I do question the lack of urgency. I have a number of questions for the Minister. Why is it that, at a time of catastrophic shortage of sitting days, a progressive Government, dedicated to the delivery of justice, should simply accept that the concordat process of agreeing a number of court sitting days should be a negotiation between the Government and the judiciary? The Lady Chief Justice, a judge widely admired for her level-headedness and good judgment, sought agreement to an extra 6,500 days a year. She advised the Government that that many extra days were available to address the court backlog of 73,000 cases within the system as it stands. Why have the Government not simply accepted that? Why have they not agreed to all the extra days for which she sought sanction and arranged to provide more? Those extra cases would make a significant difference. In its report published last Wednesday 5 March, the House of Commons Public Accounts Committee described the MoJ as “tinkering at the edges, reacting to each new issue that affects the courts, without planning for long-term solutions.” How is it that the Government have not made swifter progress with initiating a comprehensive programme of necessary repairs to our courts? Of course, the increased funding for repairs is very welcome, but why is the urgency lacking? This was a known problem way before last July’s general election. Might some of the Nightingale courts not have been retained in use to clear part of the backlog? Have the Government considered evening and weekend sittings for uncontested cases, leaving more court days available for trials? I know that the Government are well aware of the disproportionate effect of long delays on cases of rape and serious sexual violence. Victims withdraw from prosecutions under the psychological pressure that these cases entail. The average wait for serious sexual offence cases, not from report or charge but from arrival at Crown Court to completion, is now 356 days. This is a shocking figure. Many cases wait far longer. Have the Government considered according an enhanced status to these cases because of the particular difficulties they face in order to get them on more quickly? We agree that there is a need for long-term reform and we trust that Sir Brian Leveson’s review will make recommendations that will help restore our criminal justice system. There is much that we can do now and I invite the Minister to take back to his department an invitation to the Government to do much more, more quickly.

My Lords, first, I welcome the noble Lord, Lord Cameron, to his current role. This is the first time I have encountered him speaking from the Dispatch Box. The Government inherited a record and rising backlog that now stands at 73,000 cases—twice the figure of five years ago. As the noble Lord, Lord Marks, said, there is a human cost to these delays. Victims are waiting years for justice and the attrition rate in rape cases has more than doubled in the last five years, from 2.9% in 2019 to 7.5% now—so I recognise the figures he quoted. This Government are funding a record allocation of Crown Court sitting days to deliver swifter justice for victims—110,000 sitting days next year, which is 4,000 more than the last Government funded. The noble Lord, Lord Cameron, asked me a number of questions. Basically, the question was why we were not maximising the number of sitting days and taking up the Lady Chief Justice’s offer, as he put it, of sitting at capacity in the Crown Court system. There are two simple answers to that. One is a cash constraint—and I think we need to acknowledge that the Lord Chancellor has wider responsibilities than the courts and has to balance how the money is spent on the whole criminal justice system. We acknowledge that there are serious issues, and we have increased the number of sitting days. The second point is that it is wise to keep some headroom within the Crown Court system. We saw the benefit of that when we had the riots last year and were able to deal with them really quite quickly, in part because of the policy of keeping some headroom within the Crown Court system. The noble Lord, Lord Marks, rightly said that trials are bedevilled by delays, and he was right when he said that victims drop out of the system and there are many problems because of the many delays within our system. The noble Lord mentioned the concordat process. It is worth noting that that process has been accelerated this year; it has been resolved much earlier in the year than in many previous years, which will give more certainty to the judges when they are planning and allocating their sitting days between the various courts. That is the benefit of the system that the Lord Chancellor has introduced. I reject the charge that we are tinkering at the edges. The fundamental point, which I think the noble Lords, Lord Marks and Lord Cameron, acknowledged, is that ever-increasing sitting days will not solve the problem. We need more radical reforms, and we are looking to Sir Brian Leveson to present reforms. A number of things are being constantly talked about in the papers. We do not know exactly what he is going to recommend, but we are absolutely clear that there needs to be a much more radical change in how we deal with trials in the magistrates’ courts and Crown Courts. We have obviously gone some way within the magistrates’ courts by doubling magistrates’ sentencing powers to 12 months—but, again, that is a marginal benefit, and there need to be other changes. We are looking forward to Sir Brian’s recommendations. The noble Lord, Lord Marks, spoke about repairs to the courts. As I think he acknowledged, there has been an increase in court maintenance, up to £148 million from £120 million—but of course we are trying to catch up on many years of underinvesting in our court estate. I have personally seen a number of courts that are in dire need of emergency maintenance. I acknowledge the point that the noble Lord made, but we are taking steps in the right direction to try to increase the quality of our court estate—and there are a number of Nightingale courts still operating, partly for that reason. The noble Lord, Lord Marks, made another point about the sexual offences or RASSO cases, and how people are waiting far too long. Some courts, including Bristol Crown Court, I believe, are using a different approach—I hesitate to use the word “specialist”—to how they bring on RASSO-related cases. I believe that a couple of other Crown Courts are looking at this as well. Nevertheless, I acknowledge the point that the noble Lord made about the importance of doing this—otherwise, you will get a higher victim drop-out, which is not in the interests of justice.

20:03:00

My Lords, before abolishing any element of trial by jury, does the Minister accept that the Government should prioritise improving the effectiveness of the Crown Court by swift progress of cases and by appointing a cadre of procedure judges to ensure that the number of hearings per case is reduced dramatically, thereby saving a great deal of time?

I thank the noble Lord for giving me notice of that question. I absolutely recognise the point on the importance of cases coming on in time. One hears far too many stories of cases having to be abandoned, often because of poor administration of the case. We have a number of pilot courts—I think it is about 10—where we are introducing case co-ordinators. They are people whose only job is to go over the cases to make sure that all the different elements are in place and to make sure that the case gets on. I realise that that is not exactly the point that the noble Lord made, but it is acknowledging the importance of making sure that these cases get on and are not abandoned for any reason.

I have a couple of questions. First, it is very clear that if you get a backlog in the system, people will plead not guilty. That was my experience with the magistrates’ court in Gloucestershire in 2006, and I do not believe that anything has changed. Therefore, my first question is: what are the Government’s projections, going forward over the next 12 months, as to the likely increase in those awaiting trial? The real problem is that if you do not clear the backlog, it makes it worse because it is always tempting to put off facing reality; it just gets worse and worse. Secondly, in a court system time is always lost during the day. One problem that we have relates to prisons and the difficulty of bringing prisoners to the courts on time. What is being done to ensure that is improved? I remember this being a problem more than 20 years ago, and it really required extraordinarily tough contract management. I took some of the job on myself, as the Ministry of Justice did not seem capable of doing it. What is being done to manage the contracts so that they are managed as a commercial contract should be managed, and there are penalties or other stern action taken if a prisoner is late? I hope that the contracts are tough enough to ensure that. In connection with prisons, when I chaired the Commission on Justice in Wales, it was obvious that there was a problem in funding the criminal justice system. I do not think that there can be any real doubt that the financial problems arise from the overall fiscal constraints, which I completely understand, on what money is available for justice—but you are driven to the conclusion that if the Exchequer will not provide more money, the only place it can come from is reducing the prison population. When are we going to find out not how we avoid the crisis that will come in the early part of next year but what is being fundamentally done to reassess our policy of sending people to prison for a very long time? That, I believe, is at the heart of the problem. The Lord Chancellor spoke very eloquently—and I commend her on this—of dealing with the question of an intermediate court, but the much more difficult political question is dealing with the sentiment that was impressed on us some years ago that “prison works”. I do not believe that is true, but it works to undermine all the rest of the justice system by there not being enough money for paying lawyers to do their job properly and funding the administration of justice. I am sorry—I took my second question in two parts. I commend the Lord Chancellor on what she has done, but there are other problems to which we need to face up.

I agree with the concluding sentence of the noble and learned Lord—there are indeed other problems which we need to face up to, and reducing the prison population is one of the most fundamental of them. In many ways, that problem goes hand in hand with the problem of the Crown Court backlog. The noble and learned Lord will know that my noble friend Lord Timpson went to Spain to see their prison system, and my right honourable friend the Lord Chancellor went to Texas, looking constructively at other ways of dealing with these issues. Of course, as he said, reoffending rates are crucial in trying to reduce the backlog and there will be legislation on this coming forward in due course. The noble and learned Lord opened by talking about the incentive to plead not guilty because of the lengthy backlogs. That is undoubtedly true; I have heard that point made many times. It is an added incentive for us to try to reduce the backlogs. There will be a number of benefits to this, and the noble and learned Lord has pointed to one in particular. Regarding intermediate courts or giving magistrates more sentencing powers, it is my understanding that magistrates’ courts work about five times more quickly than Crown Courts. I do not know what Sir Brian is going to recommend, but, if more work could be done within magistrates’ courts, that would help as well. The noble and learned Lord spoke about bringing prisoners to court in a timely way. I of course agree with that point. The last mini-campaign I did when I was still a sitting magistrate was to try to allow prison vans in London to use the emergency service lanes to get people to court. It was a minor battle I had with the Mayor of London and I am afraid that I lost it. Nevertheless, the point he makes is a good one. It is very important that everybody gets to court on time, so that the whole process can be properly managed, which is of benefit to everybody involved in it.

Perhaps I could ask a supplementary question. Has the Ministry of Justice got a really tough contract manager? All of one’s commercial experience shows that, if you contract out a service, you have to be tough in the performance of it. I need not raise the problems that have arisen. In the past, contract delivery companies did not have a good record, if one might say this.

What I can say is that I have been in meetings with the Permanent Secretary and the Lord Chancellor and I would not like to be on the wrong side of them when they are talking directly to contractors—which they do every now and again.

My Lords, following the points made by the noble and learned Lord, does the Minister agree that it is about not only contract management but the design of the contract from the very beginning, so there can be break clauses or a contract may be terminated if it is not properly performed? Also, following the noble and learned Lord’s comments, does the Minister agree that what will be far more helpful to justice proceeding more speedily is to suggest not that pre-sentence reports are a bad thing but that well-designed pre-sentence reports can assist in the appropriate sentences being applied as part of the attempt to reduce reoffending?

Yes, I agree with the points the noble Baroness makes. The aspiration is to move towards a greater proportion of offenders having pre-sentence reports before they are sentenced. To me, that seems an obvious state of affairs. So, I agree with the point that the noble Baroness made on that. Regarding the contracts, I understand that they do have break clauses and can be terminated: that is a possibility within current contracts, as far as I understand it.

20:14:00

Sitting suspended.