The media have been more active recently in reporting the backlog which is building up in the NHS in operations, imaging and other tests for cancer and other serious illnesses. This has been one of the difficult consequences for the health service of managing the pandemic. However, there is also another backlog building up which is also an important public policy challenge. That is the backlog in the courts which is leading to cases being postponed with some already being given hearings dates as far ahead as 2023 . Options to tackle this issue raise some important public policy challenges.
During the initial national lockdown courts were of course closed, and a backlog of cases built up rapidly. Although great efforts have been made by the Crown Prosecution Service and the Court Services to open courts (including creating new 'Nightingale courts') and bring cases forward, there is still a growing level of delays. In April-June the number of prosecutions fell by 58% compared to the previous quarter. That meant cases that were concluded fell from around 110,000 to only 42,000. Although there was at first a small reduction in the number of charges being brought during lockdown the number of outstanding cases has continued to grow rapidly and is now approaching 200,000. That means thousands of victims, witnesses and defendants could be waiting years before they know the result of the case.
There has been some progress in the use of technology for virtual hearings but it is still very limited. And for full trials it is very constrained by the rights of individual judges to decide how cases are heard in their courtrooms. The independence of the judiciary is still considered to include decisions on how trials are conducted, despite the current situation. Changing that position would be a difficult course, and would raise considerable opposition among judges and lawyers who argue for example that it remains essential that the jury can see and hear defendants in person .The right of an accused to face their accusers has also been a fundamental principle of justice for a long time. Changing these principles raises a number of complex public policy issues.
It has also been suggested that an even more basic principle of justice might need to be amended, at least for the period of the pandemic. Trials could go forward without juries in some cases, reducing the problems of social distancing and risks of infection. But this would change one of the most enduring aspects of justice in Britain and in a poll of the Criminal Bar Association 93% of barristers were against the idea.
Justice delayed, as the saying goes, is justice denied. There are staff across the CPS and the courts doing everything possible to keep cases moving and keep lengthy delays to a minimum, but at the moment as the second wave breaks over us, it seems inevitable that along with other impacts of the pandemic we must either change the habits of justice or face the prospect of a very long period of recovery.
Visiting Fellow, University of Bath