Monday Message 14.10.24
The failure of the criminal justice system is not just statistics. It impacts real people every day.
It is Monday morning. Across the country, criminal barristers will have travelled to courts to start the trials of serious criminal offences. There is no time now during a working week for a barrister to prepare the trial that they are starting the following week. That means that a weekend consists of early rises and late finishes to ensure that cases are trial ready. We arrive at court, trial ready. It is hope that exhausts us because there is no guarantee that a trial will start.
What can go wrong? Why would a case which has been fixed for trial for over a year and which is now 4-6 years after the crime not start? Cases are listed for trial as “backers” or “floaters.” This means that they will only start if the case ahead of them does not. Witnesses still have to be at court and ready to give evidence. It can sometimes take most of the day before it is certain that a case cannot be reached. Witnesses wait and wait, becoming more anxious and frustrated. Giving their best evidence after that sort of wait is not easy but it is better than the alternative, which is being told that they have wasted a day and suffered additional unnecessary stress, reliving the incident, because the court has no space for their trial.
Of course, lack of court space is not the only reason cases are adjourned. There may be no interpreter available from the privately contracted firm who provide interpreters to the court. The court’s technology might not be working, the prison may have forgotten to produce a defendant. In addition, the private company which transports prisoners to and from court may not produce a defendant until late afternoon because the prisoner has been moved many miles away from the trial court because of overcrowding. Sometimes, the case may have to be adjourned because there is simply no barrister in the country available to prosecute or defend the trial which may have been listed without taking into account whether a barrister is available.
The criminal barrister will then have to explain to the witnesses that their trial will now take place if they are lucky in 2025, but it might be anything up to 2027 and still there is no guarantee that it will happen next time. We wish that those who have suffocated the criminal justice system by failing to properly invest in it could look at the faces of those people and see the pain and trauma that they have caused. Of course, those accused of crimes who deny that they have committed offences are also devastated when trials are adjourned. They may be suspended from work, having to live away from their homes, on the edge of losing everything that they have worked for and are then told to hang on in there for another couple of years.
Another reason why cases can be adjourned or stopped altogether is because those who have been beaten, stabbed, raped, threatened, had their houses burgled, their property damaged, their life savings stolen stop trusting in the system and refuse to turn up to court. They give up. Some may now give up earlier than that, if the person that they have accused of a crime is given bail because their case cannot be reached within a six-month time limit.
Whilst the trauma for the participants in a case should be the focus, it is also right that it is a painful burden for criminal barristers to regularly break the news that cases cannot be reached and to deal with the natural devastation that follow. The fee for a criminal barrister for an ineffective trial, before the costs of travel, commission to chambers and tax is £437. This will be paid at the end of the case, perhaps in 2025 or later. No wonder criminal barristers are leaving our profession.
The cost for the people who are the witnesses, accusers and accused in these cases is immeasurable. We know that these delays cost those involved in each case but the problem with cases not being reached is much larger than that.
In respect of very serious criminal offences we need a functioning and effective criminal justice system so that those who are the victims of crime have confidence to come forward, to be heard. We need experienced and trained police officers to investigate offences and be a point of contact throughout the process. We need dedicated, professional and experienced criminal solicitors to ensure that questioning in the police station is proper and that defendants have their cases fully prepared. We need witnesses to call the police, to make statements, to come to court to be questioned. We need a fully funded Crown Prosecution Service which never forgets that its role is to present evidence to criminal courts and not to seek a conviction at all costs. We need qualified court clerks and experienced Magistrates. We need a cohort of experienced judges to preside over trials and court staff to ensure that the court system functions. We need experienced and talented probation officers to supervise defendants and ensure that the risks posed are reduced. We need skilled prison officers to rehabilitate prisoners and ensure that they comply with the rules in prison.
All of this of course depends on the criminal trials being prosecuted and defended by talented and experienced barristers so that a fair trial is held, and any conviction thereafter is safe and secure. We wait to see whether the ideas that the government must protect the rule of law, to halve violence to women and girls, to prioritise rape cases, to ensure that we do not descend into a country where its citizens take the law into their own hands by rioting are real or are political spin. The budget will be a significant indicator as to what the future of the criminal justice system holds.
To make things better, we require open and transparent information from the government departments responsible for the courts system and a lack of political spin. The reduction from unlimited sitting days to capped sitting days was a decision based on finances. Nothing else. Our Senior Judges rarely speak out. For them to do so to explain the inherent dangers to the criminal justice system of cuts to sitting days means that there are cuts to sitting days, otherwise why would they speak at all? We need every sitting day that there is to halt the backlog and to begin to reduce it. Why? Because the people waiting for justice for years and years and years deserve nothing less.
Technology changes in the s28 pilot courts
Please see the Pre Recorded Evidence update from HMCTS here and accompanying flowchart, outlining the interim process for Section 28 pre-recorded evidence.
Yours,
Mary Prior KC
Chair of The Criminal Bar Association