Monday Message 20.01.25
Listening
In April 2022 the Justice Select Committee recommended that the Crown Court should sit a minimum of 110,000 sitting days for a minimum of five years to reduce the backlog which had built up of 60,000 cases. The backlog had built up because of 15% cuts to the sitting days budget which meant that Recorders were only able to sit 15 days per year rather than 30. The backlog built up. The remand population built up.
The recommendation was not implemented. The backlog is now at over 74,000 cases. The remand population now consists of one in five prisoners. Sexual offences now have a backlog of over 11,500 which is a 282% increase since 2018. The backlog of violent offences in now over 22,000 cases which means that it has nearly tripled in 6 years. For robbery offences the backlog is now 2,365 which is up 41% in six years. Many new offences are also joining the Crown Court backlog as the police staffing rates increase. There seem to be over 2,000 new public order offences, many of which relate to the riots in the Summer.
Despite the increases in charging and the increases in the backlog, the 108,500 sitting days is still 1,500 less than the JSC recommended.
It is often said that the backlog is due to Covid and the action of Criminal Defence Barristers. The backlog has significantly increased due to lack of funding for sitting days and due to a failure of the previous Government to implement the recommendations of their Independent Reviews. Had they done so then there would have been no action. When they did partially implement the recommendations of the Bellamy Report the Criminal Bar made a commitment, which we kept, to work with the Judiciary and HMCTS to reduce the backlog. We were collectively making good progress.
Of the 74,000 outstanding cases, London accounts for one in five cases. Since the Autumn of 2022, despite rising numbers of new cases, the London back log had steadily reduced by nearly 2,000 cases by the end of March 2024. It began to rise because of a further increase in receipts but the Courts were still disposing of record numbers of cases. It is therefore probable that if all available Crown Court sitting days were put to use the backlog would continue to reduce. Any current governmental reviews which are dealing with how future cases are to be dealt with are not dealing with the backlog. We do not know what new reviews, new courts and new regimes will cost but we know that an existing unused court room (one of the 20% nationally) would be three times cheaper to run than a Nightingale Court. Let’s start by using the resources we have.
King’s Counsel
A number of our Criminal Barristers will discover this week whether they have succeeded in applications to become King’s Counsel. For those who do succeed, we send our congratulations and support. For those who do not succeed this time, we remind you of this: this is not a no but a no this time. Please do not take this result as a reason not to try again. The overall success rate last year was 34% in 2023/2024. Repeat and new applicants had almost the same success rate (35% v 33%). The success rate is falling and we intend to try to discover, when so many talented applications are being rejected, ways of assisting Criminal Barristers to succeed.
The Gauke Sentencing Review
The CBA submitted a response in respect of the Sentencing Review which reflects the views of members of the CBA. Our role in the Criminal Justice System is not to determine Governmental Policy but to try to assist them with our legal and practical experiences in both prosecuting and defending all criminal offences.
Our submissions can be read here. We support and adopt the submissions written by Rachel Barnes KC as to specific sentencing concerns for the neuro diverse and neuro disabled community which can be read here.
The CPS
Recent positive meetings have taken place with the DPP and the CPS about the concerns of the Criminal Bar as to parity of fees and in respect of methods of moving forward together in a collaborative way to improve working conditions and fees for the Criminal Bar. The DPP voiced his respect and admiration for the work that the Criminal Bar does in prosecuting the most serious cases across England and Wales. An update as a result of our discussions will be provided shortly.
The Leveson Review
You will be aware that Jeremy Dein KC and Francis Fitzgibbon KC are heading a group of highly talented advocates from across the country to draft our response to this review. Any additional matters which you wish our team to have considered or included must be provided to Aaron by the end of today (20th January 2025). The very tight deadline for this response is unfortunate and not of our making.
Accents
The Criminal Bar prides itself on being the most inclusive and diverse branch of our profession but that does not remove the experiences of practitioners who have to deal with life-long discrimination for a variety of reasons. Discrimination within society remains amongst the 90% of the population who have regional accents. Recent research entitled “Frontiers in Communication” by Alice Paver and her colleagues from the Universities of Cambridge and of Nottingham Trent demonstrates that assumptions are made that listening to someone with a “lower status” accent increase the probability that a listener may think that the speaker committed a crime. This is because the accent is seen as demonstrating social class and illustrates perceptions as to behaviours which flow from that. The interesting distinction was in offences of sexual assault where media has illustrated that offenders do come from all social groups.
Whilst more research is needed, the team recommended that participants in the criminal justice system are warned against allowing voice or accent-based prejudice to influence their decisions. We know that the police and the CPS have undertaken research into differences in charging rates and use of language for potential offences committed by those who might be described as being from an ethnic minority. We know that sentences are statistically longer for those from ethnic minorities. This vital research on accents may be the catalyst to uncover further misconceptions and potential discrimination in the Criminal Justice System. At a time when consideration is being given to reducing and/or removing the right to jury trial for certain offences, it will be vitally important to ensure that progress does not come at the cost of a fair trial.
The research can be read here.
Matt Fedigan is due to start the Bar Course in September. In the interim he has launched a podcast which he hosts with Denise Van der Merwe called “Doesn’t Sound Right” which uncovers the role that accents, class and identity play in the legal profession. The podcasts can be listened to on Apple, Spotify and other providers.
Anyone who would be interested in sharing their story on an episode should contact Matt.
The CBA Podcast Series
The latest episode of the CBA’s own podcast ‘Criminal justice Matters’ is also now available on the usual outlets (Apple, Spotify etc). We are very grateful to Kate Bex KC and Simon Spence KC who rove across some of the subjects that concern us all with wisdom and inimitable charm.
Please do listen and let us know what you think.
Any ideas for future topics would be very gratefully received.
The Kalisher Essay Competition
The Kalisher Essay Competition carries a prize of £2,000 for the winner and £500 for the runner up. The competition is open to everyone in a pupillage specialising in criminal law.
The question, to be marked anonymously by the Trustees and Patrons of the Trust, is:
“The backlog of Crown Court cases serves no one. You are advising the Government as to what measures would alleviate, if not remove, the problem once and for all. You are to assume this to be achieved within current funding constraints. Is jury trial to be abolished in a particular class of case/s? If so, would that require justices to be given greater sentencing powers? Importantly you must advise whether any reforms would likely lead to challenge on human rights grounds. Would removing legal aid to bring a challenge be an option or might that result in a challenge on its own right? You should identify any other proposals and advise whether they would survive judicial scrutiny.”
We invite submissions of up to 2,000 words. The prize will be awarded in April 2025. Please could entrants send their essays to [email protected] by 5pm on Friday 28th February 2025, ensuring that their entry is sent as a pdf, with their name and their Chambers’ name or Bar Course Provider’s name included in the document.
As in previous competitions, any entering candidates who are currently in pupillage must be sponsored by their Chambers in the sum of £100 per entry. This money will go towards the work of the Kalisher Trust in transforming the lives of bright young people through the development of advocacy skills.
Our two main aims are helping talented young people from disadvantaged backgrounds achieve their potential through advocacy, and helping those with the requisite ability and ambition to develop careers as barristers at the criminal Bar. At a time of considerable pressure on the criminal Bar – not least for those in the earliest stages of their careers – we know we need to do even more to support, encourage and inspire the next generation of criminal barristers. If you have questions in relation to any of the above please contact James Gwatkin, one the Kalisher Trust’s secretaries at [email protected]
More details may be found on Kalisher’s website.
Yours,
Mary Prior KC
Chair of The Criminal Bar Association.
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