Crown Court Criminal Case Backlog

Motion to Take Note

16:21:00

Moved by

That this House takes note of the Crown Court criminal case backlog, and the impact of delays on reliability of evidence, experience of victims and fairness of proceedings for defendants.

My Lords, it is an honour to introduce this debate on the troubling issue of the backlog in the Crown Courts. I am grateful to those who have indicated that they wish to speak in this debate, many with extensive knowledge of the subject. I am especially looking forward to the maiden speech of the noble Baroness, Lady Longfield. Her experience, skill and reputation concerning issues affecting children, including those who have in some way come into contact with the criminal justice system, go before her. I know that she will have very important contributions to make in your Lordships’ House, today and in the future. In recent days the Government have made a welcome announcement, which was repeated in your Lordships’ House. They indicated that their attention is focused on the subject of this debate and that they intend to take appropriate steps to reduce delays in the Crown Court—and without diluting justice. They have appointed the distinguished retired judge Sir Brian Leveson to prepare recommendations on this difficult subject. Like Sir Brian, I was there when the Crown Court started in 1971, often appearing in cases alongside him. So was the noble Lord, Lord Thomas of Gresford. We may have been in the very same courtroom on the first day of the Crown Court. He and I, with the late Lord Hooson, were in a set of provincial chambers that produced as many Peers as Blackpool. Sir Brian’s many years in the Court of Appeal, as well as his practical experience in the Crown Court in the past, will have given him a view, as it were, from the bridge of the criminal justice system. I know that he will be paying close attention to the advice and help offered to him by those ratings who have spent the recent post-Covid years on the deck in the Crown Court, watching the delays accumulate. I have some statistics. In September 2024 there were 73,105 open criminal cases, nearly double the figure for 2019. Seriously delayed cases included 21% for violence and 18% for sexual offences. Public funding for justice declined by 22.4% in real per person terms between 2010 and 2023. This is an unacceptable situation. As it happens, last Friday I attended the valediction of a judge at the Maidstone Crown Court. His honour, Judge Philip Statman, is not a famous judge, but he has been an exceptionally good one, admired over 20 years in two Crown Courts. Those who were there took the trouble of attending because we knew that he was an outstanding member of the judiciary who should be listened to. In a courtroom with standing room only, we congregated to say a reluctant farewell to someone who has been the very model of a modern circuit judge. He has tried everything—for example, murders—but, like all circuit judges, he has tried cases small as well as great. He has dealt with many of the short hearings that unreasonably and unnecessarily interrupt almost every judge’s working day and increase the backlog, but more of that later. He told us of how in his last three weeks as a circuit judge in what he described jocularly as “the bits and pieces court”, he dealt with 10 cases each day, 150 in his last three weeks—one judge, 150 cases. He commented that too much judge time is spent filling the roles of case progression officers and that: “Every hour spent on administration is an hour away from judge craft, from getting it right for all those coming before the court to seek justice”. Judge Statman was not grumbling, but he was giving a gentle plea for change to enable judges to judge in accordance with their oaths to do right to all manner of people. He described the effect of delay on victims as he had seen it, on survivors, on defendants and on those who conduct cases. As he said, we need more judges, more and competent criminal advocates and more sitting days. Otherwise, how does one explain inordinate delay to grieving families in cases of murder, death by dangerous driving or sexual abuse? I adopt for this debate his reference to the case of R v ZA of 2023 in the Court of Appeal. Two experienced appellate judges commented: “All too often judges’ lists allow too little time to prepare for a sentencing hearing, for the hearing itself and then for the judge to take time to reflect and to weigh up all relevant, often conflicting, considerations in arriving at the appropriate sentence”. Today I received through an email a message from a judge who will remain anonymous, who described how they had done 30 hours of unpaid preparation for a case they were about to see in the Crown Court. In ZA, the Court of Appeal said: “Court listing should ensure that there is sufficient time for the judge, even if that judge heard the trial and knows the case well, to read and consider all reports and to prepare sentencing remarks” in age and intelligence-appropriate language. Judges must have time to think—wise and correct words. Again, I reflect the views expressed by Judge Statman when I say, without any risk of serious contradiction, something about juries. The jury trial is the jewel in the crown of the Crown Court. As Statman reminded us: “Rights took centuries to earn but they can be brushed away at a stroke”. That we should remove the right of jury trial from some triable either-way cases to save time and cost is easily said but, in my view, neither proved nor justified. There is no need to replace jury trial for smaller cases. In any event, what is a small case? A small case to some is a huge case to others. A small case for some means the end of their working life, their reputation, their marriage or their family. If a police officer in a case of assault that is triable either way is accused of behaviour that would end his career, should that attract a lesser tribunal than asking for a trial by his peers? If a teacher, a doctor or one of us is accused of a relatively minor offence of dishonesty, conviction will likely end our professional lives and destroy our reputations. Should we deny such people trial by their peers? Having been there in the courtroom conducting such cases for the defence and the prosecution on numerous occasions in over half a century of my legal career, I challenge in principle the removal of jury trial, especially because it is completely unnecessary. What are the time savings that it is asserted would take place if jury trial was removed from some potentially significant cases? If a judge were sitting either alone or with magistrates, unlike a jury’s verdict the judgment would have to be reasoned. We could not simply have “guilty” or “not guilty” without any explanation. That reasoning would be very similar to the legal directions and summary of the evidence given by the judge in jury trials and would take just as much time. There might be a very small net saving in court time dealing with a jury after it is retired, but, generally, that represents only a tiny slice of time taken up in court. Indeed, it is very likely that decisions from such intermediate courts—as I think they are called—would give rise to a significant increase in appeals and thus more use of court time. It would be difficult fairly to exclude appeals on questions of fact which are not appealable from jury verdicts, save in the event of important new evidence arising after the jury verdict. I know that subsequent speakers will address alternative ways to use judges more effectively. In addition, time can be saved by the use of amended Crown Court rules. Prosecution and defence advocates should be required to provide short skeleton arguments well ahead of the hearing date for all cases, including guilty-plea cases not requiring a jury. The prosecution should be required to indicate in advance any sentencing guidelines that are relevant. The defence should be required to indicate the nub of their mitigation submissions, including an indication of what they submit should be an appropriate sentence in the case. Advocates should be paid for the work they do on such intermediate documents. Currently, almost the entire fee payment in a criminal case is loaded into the final trial or plea hearing. I welcome the presence in this debate of the noble and learned Lord, Lord Bellamy, who has done valuable work in relation to legal aid, and look forward to hearing what he says about payment of advocates. Advocates should be required to adhere tightly to the time-saving rules and remunerated for that currently unpaid work they do on pre-hearing documentation. I have no doubt that there would be a favourable cost-benefit evaluation of such work. I am sure from my experience that that sort of exchange of information would mean that many cases would be over in minutes with such a system. There should be a target of no more than two hearings in every ordinary case—you would not believe how many hearings there are sometimes in small cases in the Crown Court. In an excellent House of Lords Library briefing, produced on 13 March this year, one of the three causes of the current situation was described as “more ineffective trials”, saying that 27% of trials do not go ahead on the day scheduled—almost a doubling since 2017. Key reasons included witness and defendant unavailability and the late arrival or non-arrival of prisoner transport. This shocking figure calls for severe contractual financial penalties for such failures. Another cause of the backlog is the decline in the number of criminal law barristers available for publicly paid criminal work. Declaring my interest as a member of a chambers conducting predominantly criminal work, I suggest that remunerating criminal advocates proportionately to comparable activities elsewhere in their profession would produce sharper, quicker, better prepared cases. Sitting days need to be increased, which, in my view, would show a cost-benefit gain. Part of the cost-benefit analyses should factor in the paraphernalia of problems for everyone involved, including witnesses and victims facing worsening mental health until the case is determined, and 20% of defendants being retained in custody but acquitted later, with considerable financial loss. We have to recognise that sometimes the work can be done better. Doing cases a little faster can improve the quality of a trial, and that should be subject to judicial directions, particularly where there is interminable documentary evidence that could be summarised more effectively and which juries struggle with. A major area for further possible change is in relation to very complex fraud cases—those expected to last more than 20 days. I have done a number that have lasted months and months, far more than 20 days. In cases where it can be agreed between prosecution and defence that a non-jury trial would be satisfactory, subject to specific provisions that would be acceptable, we could speed up the courts. Such provisions might include a maximum sentence of, say, seven years’ imprisonment; a judge sitting with two experts, along the lines of the Competition Appeal Tribunal, which was presided over by the noble and learned Lord, Lord Bellamy, when I became a chair of that tribunal; and a full written judgment on Competition Appeal Tribunal lines. These courts could be separated from the general Crown Court. In addition, there should be more and earlier diversion orders in suitable cases, to ensure that young defendants especially can be diverted from crime; more efficient listing schemes, such as the trial blitz at Manchester Crown Court; and increasing the credit for guilty pleas where the case has not yet reached trial. Unfortunately, we have a crisis in the Crown Court, but we should not waste that crisis. I suggest that careful, moderate modernisation of the Crown Court system, including more efficient management at every level, from the courtroom to the Lord Chancellor’s Department, can solve current problems without damaging the fundamentals of our trusted justice standards and principles.

16:36:00

My Lords, I draw attention to my interests in the register. It is a privilege to be part of this debate today, and an honour of my life to be giving my maiden speech in this great House. I start with thanks to all my new colleagues on these Benches and to noble Lords from across the House for their warm welcome. I thank my sponsors, my noble friends Lady Armstrong and Lady Andrews, for their huge support and encouragement, not just lately but over the years. I thank the House staff for being so helpful and kind as I find my way around this place, with its corridors and procedures. They have been tolerant and courteous, and have always pointed me in the right direction. I chose this debate today because it relates to so many of the issues that I have spent 40 years of my working life focusing on: families and children growing up in poverty, in poor housing, with poor mental health, living with domestic abuse and addiction—those children most likely to fall through the gaps. I will come back to that, but I wanted first to give noble Lords an idea of my own journey to this place. I grew up in Otley, a small town in West Yorkshire. My father’s family worked as engineers, and he designed engines for aviation. My mother was a carer for her parents, who had lost their sight early on in life. We all lived in the same house, so I knew first hand the challenges that life could bring, and how vital support was. Their values of hard work, enterprise, caring for your community and a strong dose of that Yorkshire “get on with it” spirit, alongside a good deal of encouragement from some great teachers, were what I took with me when I left home to be the first in my family to go to university, and afterwards, as I threw myself into working with children and families in communities in east and west London. New to the capital in the 1980s, I found the inequalities of childhood experiences stark. The families that I worked with in the East End had no expectations that the explosion of creativity, enterprise and wealth happening along the river in Canary Wharf would change their lives at all. However, they showed me how things might be different: how, with the right support at the right time, families can overcome challenges and share in the opportunities available in this great country. I have spent the last four decades working to enhance those opportunities for all children. I led a national children’s charity and worked with the noble Baronesses, Lady Harman and Lady Hodge, on the delivery of the Sure Start programme in the No. 10 strategy unit. I campaigned for many years for better childcare at a time when many saw the issue as quite niche. As Children’s Commissioner for England, I spent six years championing the rights and interests of children with those in power who make decisions about children’s lives. I am particularly proud of the pioneering work that my office did in highlighting the barriers that hold back children and their life chances. My last year as Children’s Commissioner coincided with the Covid pandemic. I saw then how children can too often slip from view and be an afterthought. We should of course celebrate that most children and families in our country are doing well, but a sizeable group are not, and we need to be ambitious for them too. We have lost so many of the early intervention programmes—Sure Start, youth clubs, family support projects—and now pour billions into acute late intervention services. These are the £1 million kids who come into care too late and cost £250,000 a year and more to care for. We should also pay attention to the corrosive impact of issues of misogyny and violence online, so powerfully portrayed on our screens at the moment in the drama “Adolescence”. If your Lordships have not seen it, please tune in. That brings me to this debate today and young people in the criminal justice system. When I have asked children in prison how they ended up there, almost every one can pinpoint when things got worse and what could have been done differently. It is almost like a blueprint: the first exclusion at school, mum losing her job, the professional interventions that came too late. Some four in 10 children in custody now are on remand and most will not receive an immediate custodial sentence once they get to court. That is why I have argued that we should do everything we can to keep most children out of custody during remand. We are seeing promising results from a Ministry of Justice pilot that keeps children on remand in the community in Manchester. It would be great to see more of those. It will not surprise noble Lords to hear that I will continue to work on causes such as this in the House. I believe in the potential of public services to stand alongside people to bring about that positive change. I also believe—as my mother used to say to me quite often—that where there is a will, there is a way. I know everyone in this House wants children in our country to flourish, but experience has taught me that it will not happen on its own for a lot of children. They need help to prevent problems becoming barriers. I will be doing all I can to ensure that we in this House do all we can to provide the kind of help and support that can change those lives.

16:42:00

My Lords, it is a great pleasure and an honour to follow the maiden speech from my noble friend Lady Longfield. She is a legend. She has spent decades tirelessly campaigning to improve the experience of children. In her powerful and moving speech she demonstrated her continued determination to fight for the rights of some of our most vulnerable citizens. Her persuasive expertise will make her a valued Member of your Lordships’ House and I very much look forward to working with her in the future. Other noble Lords have and will express concern at the effects of the backlog on victims and defendants. What is less well known is that there is a looming recruitment and retention crisis in the judiciary because, as your Lordships have heard, the caseload of Crown Court judges is unsustainable. The recent Judicial Attitude Survey, conducted by Professor Cheryl Thomas, found very high levels of stress and disillusionment in judges, with 35% of them planning to take early retirement. When you add this to those who will retire by virtue of age, 42% of Crown Court judges will be gone by 2029. Of the part-time judges, from whom new judges are appointed, only 22% are planning to apply for a full-time role. There are things that can be done, and some of them do not need to cost much money. It just requires the system to think about things differently. It has been a tenet of faith over many years that what is needed is judicial case management. Untold hours have been spent by senior judges and others devising Criminal Procedure Rules which set out timetables. But I hate to have to break it to them that they have been wasting much of their time. Most of the parties to a criminal trial have barely heard of the rules, far less read them. The reason: in the Crown Court there are no sticks and precious few carrots. You cannot make the parties comply and there is no incentive for them to do so, because they are paid the same whether they do or do not. The result is a large number of pointless hearings in court, achieving little other than both increased blood pressure and an increased backlog. I do not have to imagine these problems because, until just before Christmas, I was one of those judges. I used to think constantly, “I’ve got 35 years’ experience as a criminal barrister, 12 of which were as a KC. I never thought that I would sit in hearing after hearing, day after day, saying to counsel, ‘So, you’ve done none of the things you were ordered to do. Okay, let’s set a new timetable, which you and I both know you are not going to comply with either’”. Crown Court judges are a precious resource. Many of them came to it because they regard it as public service. Yet they cannot get on with the things they ought to be doing, because they are—to be frank—spending a large proportion of their working lives messing around, setting timetables. I too have reservations about an intermediate court with no jury. My concerns include the impact on diversity and thus on public confidence. Most juries are economically and socially diverse, the judiciary less so. So, my proposal is not an intermediate court but an intermediate judge: the criminal master, who could, for example, be a district judge interested in promotion to the Crown Court. The master could hear all the small routine applications, leaving the judges free to do what they ought to be doing: presiding over jury trials and passing sentence.

16:46:00

My Lords, I warmly congratulate the noble Baroness, Lady Longfield, on an outstanding maiden speech and welcome her again to this House. Indeed, I also thank the noble Lord, Lord Carlile, for leading this debate. In response to his invitation, I briefly say that in my view we have two fundamental problems with the court system. First, there are not enough criminal lawyers to go around—whether it is CPS, prosecution or defence. Secondly, as the noble Baroness, Lady Levitt, also said, there are many inefficiencies in the court system. If we can tackle those, we may not need radical reform. I will take four points very briefly. Despite the recent increase in sitting days, I understand that in 2025, Snaresbrook Crown Court will still be unable to use more than 15 out of 20 courts: in other words, 25% below capacity. Isleworth Crown Court reportedly closed five courts last month, and, according to today’s Times, last Friday, only eight out of 20 courts at the Old Bailey were working. At present, the court backlog is an emergency. There is no justification in such an emergency for allowing outdated accounting rules to restrict court sittings. On the question of costs, the court system has high fixed costs—buildings, permanent judges, staff, and so forth. But the marginal costs are relatively low: a part-time recorder’s fee is £800 a day. So, 10 recorders, sitting remotely, could do at least 50 extra court cases or directions hearings a day for less than £10,000. It is basic economics that, with high fixed costs and low marginal costs, the correct economic response is to maximise throughput—to reduce unit costs. But the present restrictions lead absurdly to the opposite result: higher unit costs per court disposal. That is not an efficient system. More fundamentally, under the Courts Act 2003 and the Tribunals, Courts and Enforcement Act 2007, the Lord Chancellor has a statutory duty to ensure an “efficient and effective system” of courts and tribunals. Under Section 17 of the Constitutional Reform Act 2005 the Lord Chancellor takes a formal oath, “to ensure the provision of resources for the efficient and effective support of the courts”. That is an absolute obligation, not subject to Treasury whim or political change in the wind. So, would the Minister accept that, by virtue of those statutes, resources must be ring-fenced from spending cuts and funded properly? Lastly, given the astonishing figure from the NAO that 27% of court trials are ineffective, as already mentioned by the noble Lord, Lord Carlile, does the Minister agree that although listing is traditionally regarded as “a judicial function”, the general efficiency of listing practices, as distinct from decisions on individual cases, is a legitimate subject of public debate and scrutiny by Parliament?

16:50:00

My Lords, from these Benches, I welcome the noble Baroness, Lady Longfield, to her place and congratulate her on an excellent maiden speech; we look forward to hearing more from her. The Lady Chief Justice, the noble and learned Baroness, Lady Carr, told the Constitution Committee on 26 February that dealing with the backlog felt like “running up a down escalator”. She said: “We cannot, even sitting to maximum capacity at the moment, diminish the backlogs”. Cases are now being listed as far forward as 2028. Two inquiries are under way. The very principle of access to justice is threatened, with all the effects that this has on victims and witnesses and on lawyers and judges. Giving evidence, as I have on a number of occasions, is not easy. The very fact that your account is to be challenged both for truth and accuracy is very daunting. The further you are from the events you are attempting to describe, the greater the pressure and the greater the possibility of self-doubt—a weakness any competent cross-examiner will exploit. As for lawyers, according to the National Audit Office’s report on 4 March, 1,441 trials were cancelled on the hearing day in 2023, compared with 71 in 2019, because no legal professionals were available. The average time taken for a case in the Crown Court has increased in four years from 480 days to 695 days. I will say something about short listing. For the last trial I was involved in, I went five times to the Crown Court for nothing because my junior had something paid to do. I am sure you can feel the hurt as I speak. The remuneration at the criminal Bar is so pitiful that it reminds me of the days of the dock trial. The noble Lord, Lord Carlile, who is to be congratulated on securing this very important debate, is too young to remember the line of ageing barristers whose careers had been wrecked by the war and who sat in the Birkenhead quarter sessions in their yellowing wigs, hoping to be picked by a defendant for the princely sum of two guineas—with five shillings, of course, for the clerk. We are back to those days. As for judges, the Judicial Attitude Survey, published in February, found that more than three-quarters of serving judges suffer from work-related stress symptoms, with higher figures for females and minority judges. Some 30% said they are suffering from burnout. In addition, the survey showed that court buildings and equipment are in a mess and that such buildings are not fit places to work in. This is not the time for wringing hands. I do not apply my family motto, ar bwy mae’r bai—who can we blame? It is a time for action. What are the Government going to do?

16:53:00

My Lords, it is humbling to speak in this debate in the company of those better qualified than me to make comment, but I rise to speak particularly about the impact on victims. From London, I also welcome the noble Baroness, Lady Longfield, to her place. It continues to be a great shame that criminal justice is one of those Cinderella public services. We often talk or feel that spending money on things such as schools and healthcare is good, and of course it is. However, talking about spending money on prisons, probation and the courts is much less frequently affirmed, despite the fact that not spending in the courts has a terrible implication for victims. I wonder whether improving public understanding of the importance of a well-functioning court system for victims and defendants may be key to winning wider support and gaining resources that are so desperately needed. What consideration have the Government given to improving public understanding in this way? As has already been mentioned, the new report by the Victims’ Commissioner lays bare the extent of the impact. It includes a significant toll on victims’ mental and physical health, with the risk that they may, in the words of the noble Baroness, Lady Newlove, give up on seeking justice altogether—a second injustice compounding the first. The Public Accounts Committee report published last week details particular distress experienced by victims of rape, serious sexual offences and violent crimes. Many found the court delays so traumatic that they withdrew from the process. In adult rape cases, 59% of victims were dropping out pre-charge in June 2024. Perhaps the most distressing part, as already mentioned by the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Bellamy, is the increasing number of ineffective trials—scheduled trials that do not go ahead on the day. As we have heard, according to the report published by the National Audit Office last month, the proportion of ineffective trials has increased from 16% in 2019 to 27% in 2023, with some of the reasons mentioned including failed or delayed transport. I wonder whether money is being saved in one part of the system at the cost of another. What steps are the Government taking to look at spending holistically across the system so that increased investment can be shown to pay for itself in the longer term? Finally, I welcome the Government’s wider focus on reforming criminal justice and the call for creative thinking. This is seen especially through the sentencing review, to which my right reverend friend the Bishop of Gloucester submitted a paper proposing a new approach to sentencing reform. I hope we will continue to think creatively, but always with victims and defendants in mind, to reduce the Crown Court blockage.

16:56:00

My Lords, I join others in congratulating the noble Baroness, Lady Longfield, on her instructive maiden speech. The outstanding case load in the Crown Court has reached a level that is irretrievable without a radical change to the way in which many Crown Court trials are conducted. I will repeat just a few figures. In January 2019, the outstanding case load was 33,000; it rose to 40,000 as Covid lockdown engulfed us in 2020, and by the end of September 2024, it was over 73,000. The December figure will soon be published by the Ministry of Justice, and there is no doubt that it will be significantly higher. The backlog continues to grow because the volume of cases coming into the system has greatly increased, and there is no sign of that volume diminishing. The proportion of cases taking more than a year to conclude in the Crown Court has roughly doubled over the same period. All those involved in the system are working hard to iron out problems that result in too many hearings, ineffective trials or late guilty pleas—and much else that has been referred to. I am afraid that those changes and improvements will not solve the problem, but they would help. Similarly, extra sitting days would not solve the problem but would help. There is an obvious solution, and in this I respectfully disagree with the noble Lord, Lord Carlile, who must be congratulated on securing this debate. A substantial proportion of cases that can be tried either in the magistrates’ court or in the Crown Court, but which currently go to the Crown Court, should be decided in that court by the same composition that deals with appeals from the magistrates’ court—a judge and two magistrates. Obvious cases for such trials would be all offences that carry a maximum of two years’ imprisonment. It is the accident of the maximum sentence that enables a defendant to elect for jury trial. Many other cases—including drugs offences, criminal damage, regulatory offences and others where, on conviction, the sentence would inevitably be non-custodial or a short term of imprisonment—might also be considered for such trials. Such trials would take hours rather than a couple of days, because that is how long they take in the magistrates’ court. Perhaps more importantly, many of the tactical not guilty pleas that are entered in the Crown Court at the moment would evaporate. The limit on these speeches today, which I notice I have reached, makes it impossible to develop the arguments or deal with the reasoned arguments in opposition. But, having pondered this question for some time, I note that this solution, first mooted 25 years ago by Sir Robin Auld, stands a good chance of reversing what is otherwise an inexorable decline.

17:00:00

My Lords, I add my congratulations to my noble friend Lady Longfield on her excellent maiden speech. She has been such a force for good in public life, speaking up for young people, and I know she will make a fantastic contribution. She is also my roommate; I do not know whether that is a blessing or a curse for her, but it is certainly very lucky from my point of view. We are all rightly concerned about the huge backlogs in the court system. As we heard, there are reports of cases being heard in 2028. It is profoundly shocking, and we all know that justice delayed is justice denied. How can we look victims of crime in the eye and say that we do care when their trial could take years and they have to live in limbo waiting for their day in court—particularly female victims of sexual violence? These delays cause anger, hurt and frustration to all parties, and we have heard that they can also make people drop their cases. The system that this new Government have inherited is broken. That is why it is good that some radical thinking is going on, and I welcome the fact that the Government have asked Brian Leveson to conduct this review. I know that many noble Lords and noble Baronesses will disagree, but I think it is time to examine whether we can move away from trial by jury in some but not all cases. I ask this question: how can it be right that a class C drugs offence sits in the Crown Court while a vulnerable rape victim has to wait five years from report to court? I also hope that we can use magistrates’ courts more. They do excellent work and, having spoken with many in the profession, I know that they would be keen to step up. Can the Minister tell us whether there are plans to recruit more magistrates, as we may need more of them if we are to change the system? Can he also update us on plans to improve court infrastructure, including crumbling buildings and the national computer system, which often goes down and causes delays? We all have a shared interest in sorting this out. Our country is built on the rule of law, and we believe in having a strong legal system. But, if we do not find a way to clear these backlogs in a reasonable time-space, there is a real danger that people will not only lose trust in our system but feel that we now live in a society that is essentially lawless, and that crimes go unpunished for years and years, and then maybe just wither away. That is something that none of us wants.

17:03:00

My Lords, I too congratulate the noble Baroness, Lady Longfield, on her excellent speech. I declare an interest as a practising barrister and a former recorder of the Crown Court. There is no doubt about the disastrous consequences of delays. They are unfair to defendants and to witnesses, particularly complainants, and they bring the whole justice system into disrepute. The Constitution Committee considered the effect of Covid on court backlogs when I was a member of it. It was right to do so; it is a constitutional issue. I was anxious to explore the possibility of reducing jury trials and replacing them with a mode of trial by judge only, or by a judge and two magistrates. My colleagues were a little uneasy about this suggestion, although I spoke about it in your Lordships’ House. I even asked a question addressed to the noble and learned Lord, Lord Bellamy. I suggested that a defendant at least should have the right to choose to be tried by a judge rather than a jury—a pretty modest proposal, but I was met with a very firm response in the negative. It is time to think quite seriously about jury trial. Of course we have a strong romantic attachment to it. We know very little about why juries come to their decisions. Anecdotes about the process are not always reassuring. We infantilise juries by only allowing the admission of evidence that we think they can handle, rather than allowing them to decide what is important. We do not require any reasons to be given for their decisions, which makes the appeal process difficult. It is worth standing back and considering why it is desirable that more than 90% of all offences are tried by those with expertise—either district judges or magistrates who are trained and have a legal adviser—but, for the 5% or so of the most serious offences, we think it wise to allow them to be tried by a random selection of citizens who will, no doubt, do their best. It should, perhaps, be borne in mind that we used to have jury trials for personal injury and libel cases. Their absence is not missed. Nor are juries a universal feature of the criminal justice system. Of course, I pay regard to what the noble Lord, Lord Carlile, said about this. I congratulate him on bringing forward this debate. Three minutes is not long enough to develop this important topic, but I would commend a chapter by the late and much missed Lord Brown of Eaton-under-Heywood in his book, Second Helpings. It was more than 50 years ago that Lord Roskill suggested that fraud cases should not be tried by juries. These backlogs allow us to think about the future of this mode of trial. I hope this Government are rather more amenable than their predecessor to the possibility of at least restricting trial by jury, perhaps through intermediate trials. It is not a good idea to abolish something because of the backlogs, but the backlogs allow us to think carefully about what we need to do by way of trials.

17:06:00

My Lords, the failure to use professional qualified interpreters in our courts often results in cases being adjourned. This adds to the backlog, not to mention the costs. I declare an interest as co-chair of the All-Party Group on Modern Languages and as vice-president of the Chartered Institute of Linguists. I warmly welcome this week’s publication by the MoJ of the review of qualifications and experience required by public service interpreters. I thank the Government for accepting all its recommendations. During the Covid lockdown there was a major shift towards remote court hearings, but a series of reports found serious concerns about remote interpreting, with misunderstandings, delays, poorly performing technology, and missed verbal and non-verbal cues. The University of Surrey’s Centre for Translation Studies has produced cutting-edge research on the use of technology in court interpreting. This research and best practice guidance have been provided to the MoJ. Can the Minister say whether these have been distributed to the courts? There will always be certain situations where remote interpreting is appropriate or unavoidable. Remote interpreting generally takes more time and slows things down, so if the primary driver is cost saving then the impact on court time and, therefore, backlog clearing must be factored in when weighing up the imagined savings versus true costs. The other strategy which might well backfire and cause greater delays is the uncontrolled use of AI-enabled machine translation, rather than a qualified human being. Accuracy must be non-negotiable but, according to the CIOL, for interpreting—as opposed to translation —it is very unlikely in the near term that AI or machine translation will be usable as anything other than a support tool for human interpreters without major risks and the likelihood of appeals and legal challenges. It works pretty well for the standard European Romance languages and for German, but significantly less so for languages with many dialects, such as Arabic. It can be nearly useless for languages which are rarely included in AI training data, including many Asian and African languages. Given this disparity, it would be almost impossible for the courts to maintain equality of treatment before the law. AI and machine translation commonly fail to detect sarcasm, irony or humour, not to mention slang and euphemisms—often used in crime to disguise meaning —which human interpreters readily understand but which leave AI befuddled and hallucinating. Is the MoJ fully engaged with DSIT in its work to develop policy on AI, including for machine translation, so that the courts can derive the benefits without the pitfalls? Can the Minister also reassure the House that the amendments to the victims’ code to ensure the use of only professional qualified translators and interpreters, which he supported so strongly in opposition, will be brought into practice without any further delay?

17:10:00

My Lords, I also start by welcoming the noble Baroness, Lady Longfield, and thanking her for an important maiden speech. The issues of sentencing, prisons and the court system simply cannot be separated. The backlogs that have triggered this debate must be looked at in that wider context. The recent Public Accounts Committee report, looking specifically at the Crown Court backlog, made the point that, at the end of last year, 11% of the prison population was made up of remand inmates, the highest level in 50 years. Some 32% of the remand population have been held on remand beyond six months, with 5% on remand for more than two years. The report makes the point that even getting levels down to where they were in 2019, just six years ago, would free up as many as 8,000 prison places. The state of our prisons and the very difficult and important work of helping to equip people for a life beyond their release is made even harder with such a high proportion of inmates there on remand. The situation is also not helping the remand prisoners themselves; the longer someone waits before coming to court for resolution of their guilt or innocence in the eyes of the law, the more removed they often become from the day-to-day fabric of their life, job, family and friends. That helps no one. There has been political consensus for a long time now that much sentencing is not optimal, with people being sent to prison when in many cases other sentences would be more appropriate. The courts sit at the heart of this conversation. The sentencing review that has been referenced and is being undertaken by David Gauke is hugely important, but these reforms should not be looked at piecemeal. As Leveson also undertakes his review into this issue around backlogs and the criminal courts more broadly, the two reviews absolutely must be dovetailed together into one coherent whole. Reform is long overdue, and it requires us to look at the system as a whole: sentencing and courts. With court backlogs and prison capacity forcing these issues to be addressed, we should see this as an opportunity. I ask the Minister two specific questions. First, what is being done to consider the impact of the large number of remand prisoners on the wider pressures and capacity issues in the prison system? Secondly, can he commit that the Government will respond in an integrated way to the two reviews when they report, and consider changes to sentencing and the courts system as a whole?

17:12:00

My Lords, the essential causes of the backlog we are debating are clear enough. They are to be found in prevalent austerity measures, underfunding of legal aid, sales of the court estate and underinvestment in the remainder—and what has been described as the unmitigated disaster of the privatisation of the Probation Service. A bad situation was made worse for the courts and their users by the pandemic, some of which I spent in a subterranean Nightingale court. The response of all court staff to the pandemic was impressive and should be acknowledged. The effects of the backlog are also clear, particularly for victims. The courts have to prioritise some types of case, inevitably to the disadvantage of others. Delays impair the court process: evidence gets mislaid, witnesses disappear or disengage, and juries require specific necessary directions on the effect of passing time on memories of events and on the availability and reliability of witnesses. Of particular concern to family judges are cases in which there are parallel proceedings in a criminal and family court. It used to be possible to defer hearing a family case likely to be determined by the outcome of a criminal case. Delays now mean that that simply cannot be done. The situation is now reversed, with charging decisions often awaiting the decision of a fact-finding hearing in the family court. That produces yet further delay in the criminal case and prolonged uncertainty for the family, and the children in particular. In the short term, clearly courts and the court estate should be worked to full capacity without artificial and frustrating restrictions on permitted sitting days. That would allow for the use of trial and sentencing blitzes, and more use of part-time judges, including those authorised to sit in retirement. However, I agree with the noble and learned Lord, Lord Bellamy, that it is really time to end the fiction that listing is a judicial function. Longer term, consideration should be given to the Bar Council proposal requiring Crown Court trials to start within six months of the first hearing. In time, this will prove no more unrealistic than the 26 weeks for disposal of public law children’s cases in the family court, to which legal and other professionals have responded resolutely. That should be underpinned by rigorous case management by procedural judges, relieving the full-time judiciary—particularly in smaller court centres—from work which cuts into and holds up listed and ongoing trials. Time does not permit the consideration of the longer-term suggested solutions eroding jury trials, but we should recall the Lammy review and research that concluded that the one stage in the criminal justice system at which minority groups do not face disproportionality is when a jury reaches a verdict.

17:16:00

My Lords, I also congratulate my noble friend Lady Longfield on her maiden speech. I greatly welcome the arrival in your Lordships’ House of such a powerful advocate for children. I declare my own interest: I have been lead non-executive director of His Majesty’s Prison and Probation Service since 2018. I welcome the Government’s efforts to reduce the court backlog, and a timely court system is fundamental to public confidence in justice. However, this is only one of the steps needed for a sustainable criminal justice system. Prisons are at bursting point; very soon, offenders will once more be held in police cells, under Operation Safeguard. The Ministry of Justice has introduced various early-release measures, otherwise offenders would have no prison to go to. The logistical challenges and public protection risks involved in deciding who to release, and when, are obviously tremendously complex. Prison building will not resolve this crisis, and certainly not soon, as I think the Lord Chancellor has recognised. Normally, prisons would operate at about 90% occupancy, not 99%-plus. Even these lower levels often mean serious crowding in Victorian prisons, such as HMP Wandsworth and Wormwood Scrubs. The normal regimes of education and work are often restricted, particularly when there are staff shortages. The consequences are starting to appear in boredom, disorder and violence. The truth is that the whole system of courts, prisons and probation is operating way beyond capacity, and increasing activity in one part of the chain simply increases demand pressure elsewhere. We need much more than temporary fixes. Locking up more and more people for longer and longer has led to the current crisis, but it has done little to reassure the public that they are adequately protected. I eagerly anticipate the reviews by Sir Brian Leveson into court backlog and David Gauke into sentencing. The way to square the vicious circle is through the greater use of non-custodial punishment. I use the word “punishment” deliberately, to convey the seriousness of the intent. Currently, fewer than 10% of offenders are tagged and fewer than 2% are on home-detention curfews. In my view, we will need a new branch of the probation service to supervise considerably increased numbers of offenders in the community. Does my noble friend the Minister agree that the criminal justice system can be brought back into a long-term sustainable balance only by a fundamentally reconceived and radically improved probation service, which will need considerable investment?

17:19:00

My Lords, I congratulate the noble Baroness, Lady Longfield, on an excellent speech and look forward to hearing a little more from her later on. We must accept that the criminal justice system currently does not have the capacity—in the CPS, defence lawyers or prison places—to get a grip and deal with the delays we have in the judicial system. As a former commissioner, I want to talk about what is happening now on the streets in relation to policing. The Minister has heard from me previously on rape cases and others that took place 10 days ago. It takes four years for a rape case to arrive at the Crown Court. At the present time, 91 trials listed at Snaresbrook will not be heard until the latter part of 2028. These are the same delays they have at Southwark, Woolwich, Wood Green and the Central Criminal Court. What is the answer to this? Obviously, we must have one. There is, in my view, some low-hanging fruit. The first would be the reopening and continuation of the Nightingale courts. The second would be turning magistrates’ courts into more of a Crown Court, which is what happened at Hendon when Harrow was closed. We have to build additional courts and they have to be at the right standard. I recently went to some courts; they were filthy, the toilets were disgraceful, and the whole atmosphere was not one that you would want to spend much time in. I believe that the court hearings should go from 10 am to 4 pm. In addition, greater credit should be given to a defendant pleading guilty on the first day of his or her appearance, rather than the third appearance or when he or she turns up for trial. The question of determining trials either way should be decided by a judge and not the defendant. Greater consistency should be given to listing the process, allowing the police to prioritise case types at given times. They have made a plea for me to talk about that today. The only way that this can be dealt with is by a cross-party and cross-departmental attack, chaired by someone who has the power to get different departments to deal with the problem. It must be solved; it is a scandal at the present time.

17:22:00

My Lords, I declare my interest as a former chair of the Bar Council and recorder of the Crown Court. I congratulate the noble Baroness, Lady Longfield, and welcome her to this House. The context today was set for me by the survey just published showing that one in three criminal barristers is considering leaving criminal work because they say they work too hard for too little. That will only make things worse. From 2009-10 to 2022-23, the last year we have, public funding for justice in England and Wales had declined by over 22% in real terms. It is worth noting that the Ministry of Justice budget is about 1% of the health budget. Obviously, some backlog in the Crown Court is inevitable. Cases waiting to be tried need time for proper preparation. The issue is not the backlog but the deficit—the failure—in the system to properly cope with it. The backlog, we have heard, is caused by many different factors, but especially, I suggest, reduced court sitting days and too few criminal barristers and those with the right certification and approval to take serious criminal cases, such as rape cases and so on. I welcome the Government’s recent decision to raise the sitting-day cap to 110,000 in the next financial year, but there must be adequate funding to ensure that these new available sitting days are properly used. The number of cases coming into the Crown Court routinely exceeds disposals. In the third quarter of 2024, over 31,000 cases were received into the Crown Court—a 12% increase on the previous year. This rising tide must be controlled and reversed. The number of cases in the backlog, as we have seen, has continued to rise over time. What are we going to do to tackle that backlog? We have had a number of suggestions. One made by the Bar Council was that the CPS must give more consideration to the better use of cautions and conditional cautions for low-level offending by those of relatively good character who are not likely to receive prison sentences. The CPS should also consider whether a summary charge, with the consequences of summary trial, may be sufficient for many cases, particularly now that the jurisdiction of the magistrates’ courts has been increased. I endorse the suggestion of the noble and learned Lord, Lord Burnett, with his experience as Lord Chief Justice, that we should look very seriously at an intermediate court of a judge sitting with justices. The court estate must be used to full capacity. The cap on sitting days for the Crown Court must be removed. Better fees must be paid to criminal and defence barristers to ensure that we have enough to meet the demand. Some 20 years ago, as chair of the Bar Council, I urged the then Department for Constitutional Affairs to pay properly for pretrial case management—nothing was done, and we have the current mess because of that. There we are. Delay damages victims, witnesses and defendants, and it destroys this country’s reputation for justice. We must do better.

17:26:00

My Lords, I congratulate my new colleague, my noble friend Lady Longfield, on her maiden speech and give her a very big welcome to your Lordships’ House. I rarely speak in Thursday Back-Bench debates, for I fear that I do not have the necessary expertise. I am not sure that I have the necessary expertise for this debate, but, long ago, I practised as a young barrister in the Courts of Assize and the Courts of Quarter Sessions—later the Crown Courts—in the 1960s and 1970s. At that time, I was not aware of any backlog at all of criminal cases waiting for trial, but it is now a big problem. As is recorded in the briefing notes provided by our Library, 73,205 criminal cases were awaiting trial in September of last year. A Bar student, who was my guest last night, told me that he worked recently in the Birmingham Crown Court, which has 12 courts altogether but only three ushers. The result was a great underuse of those courts. The noble and learned Lord, Lord Bellamy, made that point in relation to other courts, and I endorse all that he said. Clearly, something is wrong. The great difference between those days of long ago, when I was in practice at the Bar, and these days, is the length of trials. Murder trials then seldom went over a week and were often much shorter; now they are double or treble the time, or even longer. It is exactly the same with other criminal trials. Indeed, a colleague who works on civil matters told me the other day that he could not make further commitments because he was about to start a trial that was scheduled for a year. That was quite unheard of in those days of long ago. It is very difficult to cut down the length of criminal trials—it will be perceived that there is too much at stake for both the prosecution and defence—but we have to play our part in reducing this terrible backlog. As the noble Lord, Lord Carlile, identified in his excellent opening speech, greater efficiency in court processes could be of real help.

17:29:00

My Lords, this has been a wide-ranging and impressive debate, and I thank the noble Lord, Lord Carlile, for securing it and for the comprehensive and persuasive way in which he opened it. I also join with everyone in congratulating the noble Baroness, Lady Longfield, on her excellent and moving maiden speech. Her long experience with the charity 4Children and as Children’s Commissioner will be invaluable, and she has shown today how she will give us a fuller insight into how the criminal justice system impacts on the lives of children and young people. The Motion of the noble Lord, Lord Carlile, rightly concentrates on the impact of delays on evidence, victims and the fairness of proceedings for defendants. Last Tuesday, following the Lord Chancellor’s Statement to the House of Commons, I described the current backlog of 73,000 cases awaiting trial as “an utter disgrace”. The noble Lord, Lord Carlile, and the noble and learned Lord, Lord Burnett of Maldon, have given us some more of the figures. I maintain that the Government could mitigate these delays with determined and urgent action to reduce them. Every lawyer who has worked in trials, civil and criminal, as the noble Lord, Lord Meston, said, well knows that evidence becomes less accurate with the passage of time. The accounts of honest witnesses often differ markedly, even when events are recent and reasonably fresh. Discerning the truth becomes much more difficult as time passes. Recollections fade, witnesses become unavailable, and details are forgotten—often, details which could help distinguish accuracy from falsehood, whether deliberate or unintended. Then, documents get lost, or their meaning and import are not recalled. Unreliable evidence means unreliable trials, often leading to surprising acquittals where juries cannot be sure of guilt. There is also a risk of unsafe convictions, particularly where defence evidence cannot be found or witnesses traced and called. As the noble Lord, Lord Carlile, and the noble Baroness, Lady Levitt, pointed out, the problems are compounded by our having a demoralised, frustrated and often overstressed judiciary, and, as my noble friend Lord Thomas and the noble Lord, Lord Sandhurst, said, an underpaid and unhappy cadre of barristers. The Motion speaks of the effect on victims. In that context, we rightly stress the effect of years of delay on victims of sexual violence, with many dropping out of prosecutions because they simply cannot take the strain, as the right reverend Prelate the Bishop of London described. That is desperately unjust for the victims, who feel they have no option but to let the perpetrators go free and to live with the guilt that goes with the fear that those same perpetrators will reoffend against other victims. So, perpetrators are not brought to justice, and that means a widespread lack of public confidence in the justice system as a whole. The Minister mentioned last week that there were courts—he mentioned Bristol—where sexual violence cases were treated separately and brought on faster than other cases. Should not that be a general practice? But it is not just in sexual violence cases where victims suffer from these delays; court delays blight the entire system. Then, the Motion speaks of unfairness to defendants. Innocent defendants are deprived, sometimes for years, of the chance to clear their names. They and their families suffer unjustly through the process, often ostracised by friends, losing employment and suffering intolerable strain for extended periods. Defendants who are guilty can lose the chance of early access to rehabilitative services, sometimes in ways that might be surprising. Many defendants, as we all know, need help with mental health issues, but they can be cut off from treatment. My daughter, an NHS doctor, has referred me to the exclusion criteria of one NHS trust for access to talking therapies. Such therapies are not available to “Individuals who are undergoing court or legal proceedings which involves harm to others”, and I do not believe this is atypical. So, defendants to a charge of violence cannot access, sometimes for years of delay, a service that might really help them to address the mental issues that brought them before the court in the first place. Thus, the cruelty of justice delayed takes a serious toll on the lives of all those affected. What is to be done? First, the MoJ must take up all the sitting days the Lady Chief Justice says are available. My noble friend Lord Thomas referred to her views, and I have no doubt that she is right: whatever the exact figure, there are several thousand extra days that could be utilised. The first reason given by the Minister last week for not taking up those extra days was competition for resources, but long delays in court hearings do not save money—they cost money. The delayed trials have to be paid for in the end, and meanwhile there are more defendants in prison on remand, as the noble Baroness, Lady Porter, said. They may be acquitted or receive community sentences at the end. There are more defendants, victims and families with their lives on hold, making greater demands on public resources as they await delayed trials. I agree with the noble and learned Lord, Lord Bellamy, on increasing efficiency to reduce costs in this area. The second reason given by the Minister last week was the need to have some headroom in the system to accommodate surges in demand for court time, caused by events such as the riots last summer. That argument has some force, but it would be better for such headroom to be provided—if the need arises—by emergency measures in the short term, rather than by tolerating unjust and unacceptable delays in the long term. As others have pointed out, the court maintenance programme needs to be put on an emergency footing so that our, frankly, decrepit courts—many unusable and unused, as the noble and learned Lord, Lord Bellamy, pointed out—can be restored to full service, with temporary buildings used while the necessary repairs are undertaken. Last week I suggested that the Government should consider evening and weekend sittings for uncontested cases, leaving more court days available for trials. Might the Minister respond to that suggestion? I also agree with the suggestion of the noble Baroness, Lady Levitt, that we should have criminal masters to deal with a raft of applications that do not need the attention of judges. More of the Nightingale courts may have to remain open for longer than planned—even if they are not ideal, as the noble Lord, Lord Meston, pointed out. As the noble Lord, Lord Stevens, said, they can be used. We need to improve procedures, so that fewer cases are adjourned because of the listing errors and prison transport mistakes that currently bedevil the Crown Courts. I also agree with the procedural suggestions of the noble Lord, Lord Carlile, for more advanced notice of skeleton arguments to be deployed. I have always agreed with the noble Baroness, Lady Coussins, on the need for efficient interpretation. The Government accept that more must be done and that, even with the measures they are taking, the backlogs will grow. They pin their hopes on proposals for structural reform, but we cannot rely only on the hope that the Leveson review will solve the problem. Certainly, in time, structural reform of the system may help. For my part, I am loath to restrict jury trials, not least for the reasons given by the noble Baroness, Lady Hazarika, and the noble Lord, Lord Meston, that juries are multiracial and tend to be non-discriminatory. I see the possibilities, mentioned by the noble Lord, Lord Carlile, of a new solution for long fraud trials. When it comes, Sir Brian’s report will have to be carefully considered, the Government will need to respond and any reforms will take time to implement, and even more time to have an effect on the backlogs. Given the urgency, we do not have that time.

17:39:00

My Lords, I begin by extending my thanks to the noble Baroness, Lady Longfield, for her maiden speech and for the insight she gave on the issue of children in the justice system, an area where I know she will continue to make very important contributions to the proceedings of this House. I also thank the noble Lord, Lord Carlile of Berriew, for securing this debate on such an urgent and important issue. I shall not seek to repeat all the damning statistics that we have heard already. In a sense, they speak for themselves. For far too many victims, justice now feels out of touch. For far too many accused, the resolution of a criminal complaint feels out of reach. Victims of serious crimes such as rape, murder and robbery are told that their cases will not be heard until 2027—or, indeed, as the noble Lord, Lord Stevens of Kirkwhelpington, pointed out, in some instances, 2028. Half of victims have had their Crown Court trials adjourned or rescheduled. This is not just a matter of inconvenience or inefficiency; it is a failure of society to deliver the justice that victims deserve and expect, and it is a failure of our society to give accused their right to resolution of a criminal complaint within a reasonable and rational time. Listening to these contributions, I note that some would adopt the view that there is somehow an absolute right to trial by jury. I would not accept that proposition. Almost 90% of criminal complaints are disposed of without the requirement for a jury. It may be regarded as some sort of fundamental right, but it is not absolute, and we should not regard it as something that is inviolate. We face a situation in which the proposal for modest change or careful and moderate improvements is simply not going to be enough. The present Lady Chief Justice has pointed out that the backlog continues to increase, despite the best efforts of the Ministry of Justice, the courts and the legal profession to see it go otherwise. The noble and learned Lord, Lord Burnett of Maldon, her predecessor as Lord Chief Justice, again pointed to the situation we are in as being, in essence, in need of “radical change”. Radical change is the only thing that is going to improve matters in the present situation. We heard from a number of noble Lords about the difficulty of maintaining the appropriate number of lawyers at the criminal Bar. Indeed, it is clear that, over many years now, recruitment to the criminal Bar has been rendered far more difficult by reason of the very limited legal aid made available to those who practise in that critical and important area. The noble Baroness, Lady Levitt, also made the point that there is an impact not only on the practising Bar but on the judiciary themselves, who in many instances feel overburdened by the situation that has been allowed to develop in the last few years. We have to look at how we can approach this. I would respectfully adopt the view already expressed by the noble and learned Lord, Lord Burnett, and the noble Baroness, Lady Hazarika, and touched on by the noble Lord, Lord Faulks, that we should look at some sort of intermediary court structure. There is clearly room to deal with the either-way cases that, I understand, represent some 40% of the existing backlog in the Crown Court. There are a number of ways in which it could be done. The adoption of something similar to the Diplock courts, with a Crown Court judge sitting with two magistrates, for example, would be one way forward. Whether that should deal with only specified offences or whether it should deal with, for example, a sentencing power of up to two years, or, I might venture, up to five years, is a matter for debate and cannot be resolved at this time, but there is clearly a need to address that issue and to potentially introduce such an intermediary court. With respect, I do not accept the suggestion of the noble Lord, Lord Carlile, that this would give rise to a greater number of appeals. As I understand it, that was not the experience with the Diplock courts in Northern Ireland but again, that issue bears examination. It will also be necessary to take into account the point made by the noble Lord, Lord Meston, on the impact of non-jury trials on certain parts of our society. I appreciate the importance of that, but it can be examined going forward. The reality is that we cannot continue as we do at the present time. We cannot continue with a backlog in the Crown Court that is simply increasing. It is out of control. There are some interim measures that can be taken. The noble Lord, Lord Stevens, referred to the Nightingale courts. I understand that about 60 were established, of which only about 16 are in use at present. The question then arises of whether we have the judiciary to man those additional courts. Do we have the practitioners at the criminal Bar who will be available to prosecute and defend in those additional courts? There are so many factors coming together here that create not just one problem but a chemistry of problems, which cannot be resolved by one or two simple steps. It will take a leap of imagination by the Minister and his department to address this in a capable, credible and effective way. My noble friend Lady Porter of Fulwood and the noble Lord, Lord Lemos, made an important point. There is an inextricable link between the present, increasing backlog and the immediate problem that we face with our prison population. I understand from the Library statistics that something like 20% of our prison places are taken up by prisoners on remand. Of those, a very large proportion represent what would be regarded as either-way cases. If we can relieve the backlog, one immediate advantage may be that we take some of the pressure off our present prison estate. We must look at this in the round. It is not just a case of saying that we need more judges. It is not just a case of saying that we need more to pay lawyers more—although I always think that is a very good idea. It is not a case of saying that we need more courtrooms, or of saying that we can just introduce an intermediate court. We have to bring all these features together. Having regard to that, we are immediately faced with the issue of resources. Can I make this request of the Minister? Will he ensure that he passes the Hansard report of this debate to his colleagues in His Majesty’s Treasury?

17:48:00

My Lords, this has been a fantastic debate. It has been wide-ranging and extremely well informed. My noble friend Lady Longfield made an excellent maiden speech. I very much look forward to working with her and learning from her in the future as we discuss youth justice and young people. I also thank the noble Lord, Lord Carlile, for securing this debate. There is no doubt that the Government face a profound challenge in the Crown Courts. Our ability to provide justice to the public is of utmost importance and I am very glad that we have had this debate here today. I will rehearse some of the statistics, even though other noble Lords have given them. When the Government came to power, we inherited a record and rising courts backlog which today stands at over 73,000 cases. It was around half of that figure five years ago. The issue is more difficult to tackle than just rising numbers. Receipts are increasingly high and the outstanding case load is different from before the pandemic, as it is made up of a greater proportion of more serious and complex offences. Those offences take up more court time and tend to have a lower guilty-plea rate. In July, the Lord Chancellor made an immediate decision upon entering office to increase Crown Court sitting days by 500 on top of the allocation provided by the previous Lord Chancellor in the previous Government. This was followed by a further increase of 2,000 sitting days in December of last year. We also increased magistrates’ courts’ sentencing powers for a single triable either-way offence: previously, they could only impose a six-month prison sentence for these offences; that has now been increased to 12 months and, in doing so, we have freed up capacity in the Crown Court to hear more of the most serious cases. The capacity that will be freed is equivalent to an extra 2,000 sitting days in the Crown Court. We did not stop there. Earlier this month, we announced funding for a record high allocation of 110,000 sitting days in the next financial year to deliver swifter justice for victims. This is 4,000 more days than the previous Government funded. However, we are aware that increased capacity alone is not enough and only fundamental reform will tackle the issue. That is why we appointed Sir Brian Leveson, one of our most distinguished judges, to conduct a wholesale review of our criminal courts and propose long-term reforms. Tackling the outstanding case load in the Crown Court is a top priority for this Government, and we will look to act on recommendations from the report as soon as possible. I want to touch on other jurisdictions. The department has been focused on tackling demand within the Crown Court, but it is important to recognise that it is part of an interlinking court system and we must work to tackle demand across the whole system. More than 90% of all criminal cases are dealt with in magistrates’ courts, where cases continue to be completed swiftly. Although the case load rose from 72,151 cases to 333,349 cases between September 2023 and September 2024, the timeliness in getting through that increased case load within magistrates’ courts has remained stable. That is a real achievement, which we should acknowledge, of the MoJ in managing the issue and of the magistrates’ courts themselves. To deal with increased demand, we continue to invest in the recruitment of more magistrates. On the point made by my noble friend Lady Hazarika, we are aiming to recruit 2,000 new and diverse magistrates this year and similar numbers in the next couple of years. But we need to increase that figure, and one of the things I spend my time doing is working out how we can increase the recruitment of magistrates. When I started as a magistrate about 20 years ago, there were 30,000 magistrates in England and Wales; there are now 14,000. We need to get the numbers back up to over 20,000, and then up again, depending on what Sir Brian recommends. In family courts, the case load in both public and private is reducing a bit, so that is a good story. There are other problems within the family court arena, which I am very aware of, but there is not the emergency situation in family courts which we are seeing in the Crown Court. To return to the issue of the Crown Court backlog, many noble Lords, including the noble Lord, Lord Marks, asked about the impact of delays on the reliability of evidence. This affects victims and witnesses, and of course many witnesses are victims as well. There are measures in place to support them in giving their evidence. The right reverend Prelate the Bishop of London asked about support for victims. We regard that as important and we accept that victims tend to drop out the longer that a case is delayed. The criminal justice system already works together to give vulnerable and intimidated victims an earlier opportunity to provide their evidence after a not guilty plea is entered. Under Section 28 of the Youth Justice and Criminal Evidence Act 1999, eligible victims can have their cross-examination pre-recorded, enabling victims or witnesses to give evidence at an earlier stage, when their recollection of events is likely to be better. In addition, the police, the CPS and HMCTS employ a joint protocol to expedite cases involving witnesses under 10 years old, thereby maximising the opportunity for them to provide their best evidence and minimising the stress and emotional impact of the criminal justice system. Prosecutors have guidance on allowing witnesses to refresh their memory. This usually involves the witness rereading their witness statement on the day of the trial. The department’s funding of the national Witness Service means that crucial emotional and practical support is provided to both prosecution and defence witnesses in all criminal courts in England and Wales, to enable them to give best evidence. I wish to address the undeniable impact that court backlogs have on victims. The human cost of these delays is considerable, and witnesses—who are often victims as well—play a crucial role in ensuring that justice is served. Indeed, as the Victims’ Commissioner mentioned in her report, the delays in the court system can have a particularly adverse impact on victims of rape and serious sexual offences. To ensure ongoing communication with victims in the pretrial period, every CPS area now has at least one dedicated victim liaison officer in its rape and serious sexual offence unit, and pretrial meetings are offered to all adult victims of these crimes. This Government have committed to introducing free, independent legal advice for victims and survivors of adult rape across England and Wales to help them understand and uphold their legal rights. We aim to begin a phased rollout of that service later this year. The Government have committed to implementing the Victims and Prisoners Act 2024. The Act contains a package of measures that, once implemented, will improve victims’ experience of the criminal justice system and offer better access to information. The first tranche of victim-related measures from the Act commenced in January this year. They simplify the complaints process for victims and enhance the Victims’ Commissioner’s ability to hold criminal justice agencies to account. We are implementing provisions to ensure that local commissioners collaborate on support services for certain victims. We will consult on a new victims’ code, so that every victim of crime knows the rights they should receive under the code. Lastly, on support to victims, I agree with the Victims’ Commissioner that support services have an important role in keeping victims engaged with the criminal justice system, and that this can help mitigate the impacts of court delays. That is why, in the upcoming financial year, we have protected dedicated spending in the department by maintaining this year’s funding levels for ring-fenced sexual violence and domestic abuse support. Moving on to the fairness of proceedings for defendants, we recognise that the prolonged uncertainty of waiting for a trial can be overwhelming for some defendants, and we do not underestimate the impact that this has on the defendants and their families. The judiciary and the Crown Court are responsible for ensuring that cases are heard as promptly and efficiently as possible. They continue to work to prioritise cases, including those involving custody time limits. Custody time limits safeguard defendants by preventing them being held on remand in prison for an excessive amount of time prior to their trial. If the trial cannot be heard before the limit expires, the court must release the person on bail, unless the prosecution successfully applies to extend it. Fairness is integral to the criminal justice system. While miscarriages of justice are, thankfully, rare, it is important that our appeal system, including the possibility to apply to the Criminal Cases Review Commission, functions well. Last month, the Law Commission launched a public consultation on the law relating to criminal appeals, aimed at ensuring that the system is fair and effective. We look forward to receiving the final recommendations from the Law Commission once the consultation exercise has concluded. Reducing the Crown Court backlog and improving the experience of victims through the process of seeking justice continues to be the priority of this Government. I thank the noble Lord, Lord Carlile, for raising this subject. I turn to contributions from noble Lords in the debate. Both the noble and learned Lord, Lord Bellamy, and the noble Lord, Lord Meston, expressed scepticism about the judicial function of listing. The noble and learned Lord argued that general listing was a legitimate subject for debate in Parliament and generally. He said that specific listing of specific cases should remain a matter for judges. That was an interesting point—I suspect the noble Lord, Lord Meston, agrees with it—and I will make sure that it is fed back to colleagues. The noble Lord, Lord Thomas, spoke about the time for action. We agree with that, of course, and we are acting: we have these two extremely important reviews under way. I can assure the noble Baroness, Lady Porter, that we think daily about dovetailing these two reviews and how they will work together, because this is an integrated system—a point that the noble and learned Lord, Lord Keen, made. You really need to look at the whole system to try to get the benefits we hope to achieve through the reforms. The noble Lord, Lord Faulks, pointed out that there are a number of areas where jury trials have stopped and the world has not stopped turning. We wait to see what Sir Brian recommends, but there may be a recommendation for an intermediate court for cases up to, say, two years’ sentencing—or maybe five years, as the noble and learned Lord, Lord Keen, suggested. We wait to see on that matter. The noble Baroness, Lady Coussins, asked about interpreters. There is of course an absolute requirement in the code for professional translators. The Government will consult on a new code in due course. I recognise her point about the importance of interpreters to enable fair trials and fair hearings in courts. I particularly thank the noble Lord, Lord Meston, for raising the Lammy review, which quite rightly pointed out the trust that people have in jury trials, particularly people from ethnic minorities. I and the Government recognise that it is a gold standard. However, it does not necessarily mean that all trials, or the same proportion of trials as now, will continue to be jury trials. The point was well made and is one that we need to reflect on as we consider proposals as they come forward. I add that magistrates, of course, are more diverse than the rest of the judiciary, particularly here in London. We—I was a magistrate—were a pretty diverse bunch within London. Nevertheless, I thank the noble Lord for making that point. My noble friend Lord Lemos spoke with great authority about the problems of overcrowding. Of course I aspire to great investment within the whole system, but his points about the knock-on problems of overcrowding in the Prison Service were absolutely right. The noble Lord, Lord Stevens, made a number of detailed proposals. I am sure the officials will read them with great interest, but I will not comment on them individually now. I thought they were points well made. The noble Lord, Lord Sandhurst, spoke about there being too few criminal barristers. That is obviously right. There is no shortage of trade unionists for the criminal barristers in this House, I have to say, although that does not mean it is not merited. The noble Lord also advocated for the increased use of out-of-court disposals. It is worth reflecting that one of the great successes over the last 20 years is the reduction in the number of youths in custody. That is very much driven by the increased use of out-of-court disposals for youths. When I started as a youth magistrate, there were 3,000 youths in custody; now, it is a matter of a few hundred, and out-of-court disposals were a part of that transition, if I may put it like that. My noble friend Lord Hacking gave me one of his usual history lessons, for which I am very grateful. The point he made about trials getting longer and longer were of course absolutely right. There are other points I would like to make. My noble friend Lady Levitt and the noble Lords, Lord Thomas and Lord Marks, spoke about the Judicial Attitudes Survey and asked what the Government are going to do with it. One thing the Government will do, obviously, is continue to invest in regular recruitment and recognise the factors that have come up through that survey. There will be a major review of judicial pay, which has been commissioned, and it will look at the issues affecting judges and particular judge types. So, we recognise the point that my noble friend made. The other point, which was made by the noble, Lord Carlile, was about prisoner transport and how—as I know from my own experience—this is often a source of delay. I can confirm that, in respect of the transport supplier, when the delays are unacceptable and there is performance failure, then direct action can be taken by the MoJ. That is done occasionally, and it is recognised that a completely unreasonable number of delays are caused by prisoners or defendants simply not getting to court on time—I absolutely recognise that point. I have already welcomed my noble friend Lady Longfield, but I want to say that I am very glad she will be joining my colleague the honourable Nic Dakin for his round-table discussion on the topic of youth in the criminal justice system. My office is literally next door to Nic Dakin’s, so I am sure I will hear all about it. The big point to close on—this has been accepted by all noble Lords who have spoken—is that that we really have a very profound challenge in front of us. As a Government, we are taking bold actions to try and address the two main problems that affect our criminal justice system, which are Crown Court backlogs and prisoner overcrowding. These two problems are hugely interlinked, and we are determined to address these problems and turn the tanker around. But there are many aspects to this, and I look forward to the interest of noble Lords as we continue along this road.

18:08:00

My Lords, I shall say just a few short points in closing. First, I thank the noble Lord, Lord Ponsonby, for his considered reply. May I gently urge him to look at the research of Professor Cheryl Thomas of University College into rape cases where the victim does not give evidence in the presence of the court? The results of that research are very unfavourable to the procedure. It is just not working well. Secondly, I thank the noble Baroness, Lady Longfield, for her maiden speech. I will simply say that she did not disappoint. I noted the right reverend Prelate’s comment about creative thinking. There should be some creative thinking that does not immediately assume that we must get rid of jury trials in a large number of cases because we are so pessimistic about the future. We can be optimistic, and indeed, surely, as one noble Lord said, it is time to get on with what can be done now, without waiting for Sir Brian Leveson’s report. Some of it is staring us in the face. For example, my noble kinswoman and others’ suggestion of the introduction of criminal masters or procedural judges could be started tomorrow. It would make a huge difference in courts such as Snaresbrook, which has been much mentioned. I would also urge upon the Government that my noble friend Lord Meston’s reference to allowing criminal and family courts to work much more closely together could also be used with civil courts and major fraud trials. There is a great deal of work that can be done that would shorten lists and delays. The noble Lord, Lord Hacking, in his interesting historical analysis—it was before my time but, like the noble Lord, Lord Thomas, I had heard all about it when I started at the Bar—urged that there should be ushers in every court. It is such a simple thing. If there is an usher and a clerk in the court, the work gets done. If they are not there, the witnesses cannot be brought in, the charges cannot be read out properly and there are unreasonable burdens placed on the judges. Those are simple things we can do immediately. We have a difference about juries. I say both to my noble friend Lord Faulks and to the noble and learned Lord, Lord Keen, that in my view they are wrong about juries. First, the reference to civil juries is irrelevant to this discussion. Civil juries did not send people to prison for a long time, in effect, and judges have to send people to prison if they have been convicted by a jury of a serious offence. In relation to the Diplock courts, I say with enormous respect to the noble and learned Lord, whom I admire greatly, that it is a poor analogy. The Diplock courts deal only with the most serious cases and were created in an atmosphere that did not want to get rid of a single jury trial, but it was because you could not get a fair trial in Northern Ireland at that time for special reasons. I do not think that Diplock courts take us anywhere. I hope I will be forgiven for not referring to everyone who has spoken, but in closing, I simply want to thank all noble Lords who have taken part and say that the Government have a very big task on their hands.

Motion agreed.