Ambition to reduce Crown Court backlog ‘no longer achievable’, says NAO

The MoJ publicly set its ambition to reduce the backlog at the October 2021 Spending Review after being given £477 million to support recovery across the criminal justice system, including to help reduce court caseloads.

However, the backlog is now higher than it was in 2021, says the NAO. The MoJ now estimates the number will be closer to 64,000 by March 20252, but has not set a new ambition to reduce the backlog.

The Association of Police and Crime Commissioners (APCC) says NAO’s report “makes extremely worrying reading”.

The report, ‘Reducing the backlog in the Crown Court’ found outstanding cases are 78 per cent higher than at the end of 2019, and 11 per cent higher than at the end of June 2021 when the independent spending watchdog last investigated.

Last month, the MoJ said the most pressing consideration in relation to reducing the Crown Court backlog is the pressure on prison capacity, which has become more acute in recent months, including because of increases in the remand population.

The NAO reports that in 2023, the remand population in prison went over 16,000 – the highest in 50 years – with around two-thirds awaiting trial.

The report found more than a quarter (27 per cent) of the backlog cases have been waiting a year or more to be heard, and the number of cases waiting for two years or more is 6,523.

“Delays are exacerbating the impact on victims and witnesses, as well as increasing the risk of cases collapsing,” the NAO said. “Longer delays mean victims and witnesses may withdraw from proceedings, or their recollection of evidence declines over time. It can also impact victims’ mental wellbeing, and that of defendants awaiting trial.”

On average, the NAO found it takes 683 days from offence to a case completing at the Crown Court, including 279 days from first listing of cases in magistrates’ courts to completion. Currently, almost a fifth (18 per cent) of cases awaiting trial are sexual offences, and cases involving violence against a person are nearly a third (32 per cent).

The NAO says there are several issues causing the backlog, including: a shortage of legal professionals working in criminal law; high rates of ineffective trials; an increase in complex cases such as adult rape; and cases delayed by Covid-19 and the criminal defence barristers’ industrial action.

The NAO also found that the actual levels of incoming and completed cases have been consistently lower than MoJ forecast at the 2021 Spending Review.

To increase capacity in the Crown Court in response to the growing backlog MoJ has increased the number of courts, sitting days and judges.

“The MoJ cannot put a figure on how much has been spent on addressing the backlog because additional funding is added to operational budgets across the criminal justice system and is not separately monitored,” the NAO sais.

“For two years, the Criminal Justice Board (CJB), which brings together representatives from across the criminal justice system including the judiciary and is chaired by the Secretary of State for Justice, did not meet.

“This reduced oversight of action to help the justice system recover from the pandemic. The Criminal Justice Action Group (CJAG), which is attended by officials across the criminal justice system but not routinely attended by the judiciary and is chaired by the most senior civil servant at the Ministry of Justice, continued to meet and discuss activity to reduce the backlog. The CJB has now been reconvened and is monitoring progress to reduce the backlog.

“The condition of the Crown Court estate may in future be a barrier to reducing the backlog; specifically, court buildings not being fit for purpose due to long-term underinvestment. Courtrooms are frequently taken out of action due to, for example, leaks or heating failures.”

In 2022, the MoJ estimated that 50 per cent of Crown Court courtrooms were at risk of sudden closure at any time.

“the MoJ and HM Courts and Tribunals Service have significantly improved their data and analysis since our 2021 report, ‘Reducing the backlog in criminal courts’ but gaps in data on service users remain,” the NAO said.

“At the time of our 2021 report, the MoJ considered the two main constraints to reducing the backlog to be the number of courtrooms and judicial capacity. Due to the introduction of Nightingale courtrooms, the MoJ no longer considers courtroom capacity to be a constraint on case disposals.”

The APCC lead for criminal justice, police and crime commissioner (PCC) Emily Spurrell, and APCC chair, PCC Donna Jones, said: “The NAO’s report makes extremely worrying reading. That there are almost 68,000 trials waiting to be heard at Crown Court is simply unacceptable. These delays are not just an administrative backlog but have a terrible impact on those people caught up in the process – not least the victims of crime, but also witnesses and defendants.

“The report finds that 27 per cent of the backlog cases have been waiting a year or more to be heard, and 6,523 cases have been waiting for two years or more. The longer the delay, the higher the risk that a case collapses, as victims and witnesses feel unable to wait any longer for justice.

“According to the report, numbers held on remand in prison in 2023 was the highest in 50 years, with two thirds of them awaiting trial. We have seen just this week how the number of remand prisoners is contributing to severe prison capacity issues and, in turn, potentially policing and probation as resources are directed away from the front line to deal with accommodating and monitoring suspects and offenders outside of the prison system.

“The criminal justice system is, in fact, several interlinked systems, and for the whole to work efficiently and effectively, each must do the same. This situation has gone on too long. The public can be sure that PCCs will, through their work with Local Criminal Justice Boards, push all parties to make urgent improvements so that victims, witnesses, defendants, and the wider public can have confidence in our criminal justice system.

“The £477 million of funding given in the 2021 Spending Review to support recovery across the criminal justice system is evidence the government has recognised for some time that the criminal justice system has been under great strain, but it is clear more needs to be done. PCCs are therefore urging the MoJ to undertake a comprehensive organisational review as soon as possible.”