“It’s time for joined-up thinking on justice”, says Bar Council Chair

Nick Vineall KC, Chair of the Bar Council | Bar Council

The Crown Courts and the civil courts are suffering from unacceptable backlogs and without further investment matters will not significantly improve.

The Crown Court backlog in England and Wales hit a new record this year. There were more than 65,000 cases open in October 2023, according to HM Courts and Tribunal Services official figures. On average it takes 679 days from an offence being committed to a Crown Court case concluding. That is almost two years. No wonder defendants are disinclined to plead guilty when any punishment can be deferred so long by maintaining a not guilty plea – especially when there is also always the chance that the complainant might lose interest or move away.

Meanwhile the latest figures for the prison estate show that there are 88,924 prison places and 87,930 prisoners. The government’s reforms to reduce the use of short sentences of imprisonment are an important first step in removing the pressure on the criminal justice system.  But with a third of regions in England and Wales having fewer than 80% of the necessary probation officers and if rehabilitative sentences are to replace short prison sentences, there must be a properly funded probation service.

Once there is room to lock up those who are sentenced to imprisonment, attention must move to speeding up the Crown Court process.

The focus ought to be on encouraging earlier guilty pleas. Not, please note, encouraging more guilty pleas: neither the judiciary nor the government should be attempting to influence how defendants plead. But all agencies ought to be engaged together on a concerted push to enable and encourage those who do wish to plead guilty to do so at an earlier stage.

Some at the MoJ are surprisingly unenthusiastic about this notion, and there needs to be a shift of mindset to encourage and support all that the judiciary are already doing to promote Better Case Management. Earlier guilty pleas are a win-win. Better for the Defendant because punishments are reduced when guilty pleas are entered at an early stage, and that means saved money as result of fewer, or shorter, prison sentences. And better for the Criminal Justice System because sentencing hearings cost a fraction of the cost of jury trials – so earlier guilty pleas will reduce backlogs and save money too. 

The ongoing criminal legal aid review now chaired by HHJ Deborah Taylor will fail unless it is bold enough to say clearly that more money is needed for criminal legal aid. There are two priorities. First, criminal legal aid must be at an overall level that supports sustainable practice by solicitors and barristers who devote their professional lives to the publicly funded criminal justice system. But, secondly, the pattern of remuneration must encourage the behaviours which Better Case management seeks to achieve – including earlier guilty pleas. Serious thought needs to be given to better ways of ensuring that defendants have clear early written advice on likely outcome and likely sentence.  A little more money spent at that stage is likely to save more money later, in terms of court time and prison costs.

What about the civil side? There are long delays in the Family courts in England and Wales. It can now take more than a year to make decisions on, for instance, where a child will live after their parents separate, according to the Children and Family Court Advisory and Support Service. The statutory target for the resolution of public-law family cases is 26 weeks – but they now take on average 44 weeks. 44 weeks is a long time in the life of a young child.

But an even more fundamental failure in terms of access to civil justice is the dearth of front-line legal advice. More support is needed for the advice agencies who are a first port of call for those who cannot afford lawyers and/or who are marginalised or excluded.  Often what is needed is very simple advice and clear signposting, and quite rightly our regulatory system has space for people who are not regulated to provide this sort of front-line legal advice. This was discussed at the Civil Justice Council’s 12th National Forum, which I attended in November, alongside the Lady Chief Justice and the Lord Chancellor, where the theme this year was “improving Access to Justice in a cost-of-living crisis”. Without financial support for early advice, legal problems can escalate and morph into ill-health, chronic debt, or homelessness. This lack of readily available early advice has resulted in a significant increase in casework for MPs from their constituents who find they have nowhere to go.  And if people with a grievance are neither advised nor represented (because they don’t have access to legal aid) they are more – not less – likely to take their grievance all the way to court, but they will do so as litigants in person and that imposes even more strain on the courts.

Research suggests that better funding for civil legal aid can pay for itself many times over in terms of benefitting the economy and returning savings to the government. The Canadian Forum on Civil Justice collated studies on the impact of civil legal aid spending. Across 39 studies an additional £1 spent on legal aid generated on average more than £6 in commercial activity and government savings. A classic case of invest to save – but it does mean that the bean counters need to be able to think across government departments.

Looking to the year ahead, criminal justice was at the heart of the King’s Speech with “helping people feel safer in their own communities” being one of the Prime Minister’s aims. In response, the Bar Council highlighted the additional funding that is long overdue and urgently required to enable this aim to be realised. Funding, coupled with joined-up thinking, will serve to bolster the justice system – and stop us from lurching from crisis to crisis as we have been of late. Good laws, good lawyers, and good judges are fundamental, but none of this works in practice unless there is effective access to justice.

1.  Towards a National Legal Service 2023, Society of Labour Lawyers, p.31 https://www.societyoflabourlawyers.org.uk/wp-content/uploads/SLL-Towards-a-National-Legal-Service.pdf

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