Two practical ways to reduce the criminal courts backlog

The ultimate question right now is how to effectively address the backlog with practical steps that can be taken to help better administer justice for victims and witnesses in our criminal justice system.

We welcome steps taken by the government including the move to increase the maximum 6-month prison sentence that can currently be handed out by Magistrates to one year, which will help free up around 2,000 extra days of Crown Court time annually.

In this article, Rehman Chishti MP, as a former barrister and an MP who has sat on both the Justice Committee (2012-15) and Home Affairs Committee (2017-19), and Kim Hollis QC, as a leading criminal silk and former Director of Public Prosecution for the British Virgin Islands(BVI) (2016-19), explore two practical steps that can be taken to help tackle the backlog.

Firstly, we need specialist courts for violence against women (VAWG).

The criminal courts of England and Wales have seen a steady increase in relation to sexual and violent offences against women, as was highlighted in International Women’s Day 2022, and the number of sexual offences has almost tripled in recent years due to a willingness of victims to come forward and report, and this trend is likely to continue.

In their VAWG Strategy, the government has outlined its commitment to tackling violence against women and girls, including investing £70 million in community measures and trebling cross-government funding to tackle VAWG. However, victims are being consistently failed by the court backlog and the time taken to bring resolution to their case.

In March 2021, a cross-justice review group in Scotland (Lord Justice Clerk’s Review Group), recommended new national specialist trauma-informed procedures to be created to deal with serious sexual offence cases, including a specialist court.

It was also suggested that a national specialist sexual offences court should be created with core features of pre-recording the evidence of all complainers, specialist trauma informed training for all personnel amongst other valuable recommendations.

During her role in the BVI, Kim Hollis QC was consistently faced by unwilling victims whose cases had taken years to come to trial, with the almost unanswerable argument that they had moved on both psychologically and emotionally from the trauma they had experienced and having rebuilt their lives, the court experience would freshly traumatise them in reliving and reopening their wounds.

By October 2021 in the UK, the backlog for trials in rape and sexual offences had risen by 71 per cent, with the average time taken for a case to be heard being almost a year.

In Spain, specialised criminal court rooms were established in 2004, which have the power to inquire/try crimes against women, namely murder, manslaughter, domestic violence, and sexual assault. These courts are constructed in buildings specifically designed to consider the requirements of witnesses and defendants.

On a visit to Barcelona in 2005, Kim Hollis QC spoke with some of the Judges conducting matters in these newly established courts. The system appeared to be working exceedingly well, and cases were progressing at speed, which saw a significant reduction in the trial backlog in such cases.

Therefore, a specialist sexual and domestic violence court at both magistrates and Crown Court level, in the spirit of the Spanish and Scottish proposals, could significantly impact and make inroads on the considerable growing backlog in England and Wales.

Secondly, a report looking into day-to-day issues experienced by criminal barristers in the Crown Court in England and Wales identified that the plea basis sentence reduction scheme, and the lack of judicial discretion in determining credit for guilty pleas, needed to be addressed.

Many responses urged greater discretion for Judges in relation to sentencing, and it was noted that the reduction in plea is applied too rigidly by the judiciary who have often expressed they feel bound by the guidelines.

As a consequence of the 2017 hurricanes in the British Virgin Islands, court buildings were damaged beyond use and during the first year urgent hearings took place with the magistrates sitting in police stations, and High Court criminal trials suspended completely, thus increasing the backlog of all cases awaiting trial.

To address this, Kim Hollis QC as Director of Public Prosecutions of the British Virgin Islands, considered both the timing and amount of credit to be apportioned by the court in relation to pleas of guilty.

It was generally indicated that pleas of guilty with defence submissions for credit, despite the timings of the pleas, would be carefully considered by the crown when making representations before the High Court (equivalent to Crown Court in the UK) judge as to how her discretion was to be exercised as to credit for the plea, based on timing.

The effect was not only a reduction of the number of cases awaiting trial, but also in some cases substantially lessening the potentially traumatic effect on victims/witnesses of pre-trial waiting. A pilot of this could be implemented in England and Wales to help reduce the present backlog.

Not only is practical long-term investment required in terms of increasing numbers in the judiciary (which will of course take time), but importantly judicial discretion should be reconsidered especially to those who are trusted to administer justice in our criminal courts.

They are equipped with the requisite practical experience necessary to ensure that the courts of England and Wales, which are admired as underpinning our security and democracy, remain global models and are capable of modernisation and adaptation according to need.

In our opinion, the current backlog can be reduced substantially if the above two measures are introduced as part of a wider package of reforms.

Rehman Chishti is former vice-chairman of the Conservative party and Kim Hollis QC is former Director of Public Prosecutions for the British Virgin Islands