Forty-Third Report - Reducing the backlog in criminal courts

Victims of rape and serious sexual offences are facing unacceptable delays to justice that compound and extend their suffering and lead to too many cases collapsing. The number of such cases waiting longer than a year has increased by more than 400% since the onset of the pandemic. As victims are made to wait longer for their cases to be heard, their lives are put on hold and their trauma is prolonged. As waiting times increase, so does the risk the victim withdraws from the process and the case collapses. While the proportion of cases collapsing in the courts in this way has reduced recently, the scale of victim attrition in other stages of the criminal justice process is unacceptably high. We are encouraged that the Department is putting more money into victim support services, doubling investment from £92 million in 2019–20 to £185 million by 2024–25. It also has plans to increase the number of independent sexual violence advisors (ISVAs), whose support to victims halves the likelihood of a victim withdrawing from the process. In June 2021, the Department set out a range of other actions it would take in its end-to-end rape review, and published a progress update in December 2021, but cannot yet say what impact these actions are having on the number of rape and serious sexual offence cases waiting in the backlog. Recommendation: In its Treasury Minute response, the Department should set out its plan to assess the impact of its measures to support victims of rape and serious sexual offences and its progress on recruiting ISVAs.

We are not convinced that the Department can recruit enough judges to deliver on its ambition to reduce the Crown Court backlog. Reducing the backlog to 53,000 by March 2025 relies on increasing the number of days that the Crown Court hears cases, from 100,000 in 2021–22 to 105,000 in 2022–23, then 106,500 in both 2023–24 and 2024–25. This requires a significant increase in the number of judges, for which the Department’s plan does not seem credible. Its plans are predicated on successfully recruiting 78 full-time, salaried circuit judges. This is despite only 6 Reducing the backlog in criminal courts filling 52 of 63 positions during the previous recruitment round. The resulting dependence on deploying criminal barristers and solicitors as part-time judges, as well as increasing the work load of part-time judges, to make up shortfall reduces much-needed capacity within the legal profession to prosecute and defend cases. We are concerned that the need to significantly improve the diversity of the judiciary will be overlooked in the Department’s efforts to boost the number of judges. Recommendation: In its Treasury Minute response, the Department should set out what specific actions it will be taking to ramp up recruitment while improving diversity in the judiciary.

We remain unconvinced that the prison system will cope with the likely increase in prisoners given the planned increase in police officers and the Department’s work to reduce the backlog in criminal courts. In October 2019 the government announced it would recruit 20,000 additional police officers by 2023, which the Department expects will lead to a significant increase in cases entering the courts, and in turn custodial sentences. In July 2021, the Department reported a gap of 4,000 prison places by the end of 2023, even once it had factored in 18,000 additional places as part of its current prison build programme. It has since secured funding for 2,000 more prison places, accounting for only half of the shortfall. We are concerned that the Department’s plans allow for no contingency and resilience that might be needed if, for instance, police recruitment leads to more cases entering the courts than expected or there are delays in its prison building programme. We have reported before on the Department under-delivering on its promises to create new prison places and on the staggering backlog of maintenance work required to keep existing prisons fit for purpose. We have also been critical before about the effectiveness of cross-government approaches to reducing re-offending; sustained progress in this area will be a vital part of the equation if the prison system is going to cope. Recommendation: In its Treasury Minute response, the Department should set out how it is building resilience across the criminal justice system and, crucially, how it will ensure there are enough prison places to meet the expected demand from increased police recruitment and faster recovery in criminal courts.

Vulnerable users and people from ethnic minority backgrounds are potentially impacted disproportionately by efforts to tackle the Crown Court backlog, which the Department and HMCTS have not done enough to understand. Since the start of the pandemic, HMCTS significantly increased the number of hearings held remotely using video technology. However, it only published its formal evaluation of remote hearings on 10 December 2021, nearly two years into the pandemic. The limited coverage of the experiences of those with disabilities or accessibility difficulties painted a mixed picture, which HMCTS is still reviewing. A third of people requesting reasonable adjustments felt their requests were denied. There is insufficient data on ethnicity for the Department to assess its recovery plans or the pandemic’s impact on different groups. The Department is continuing to work on improving the ethnicity data it collects. Reducing the backlog in criminal courts 7 Recommendation: In its Treasury Minute response the Department and HMCTS should set out their plans to specifically evaluate the experience of victims, witnesses and defendants—particularly those deemed vulnerable and from ethnic minority backgrounds—in criminal courts.

We recognise the long overdue move towards bringing data on the criminal justice system together, although it is not clear how the Department will use this to improve performance. In December 2021, the Department published a national scorecard and an adult rape scorecard that bring together data on performance across the criminal justice system, including on the size of the backlog, timeliness and victim attrition. The Department plans to also produce local scorecards at the police force level. In a complex system with multiple organisations, the use of scorecards to drive performance risks creating perverse incentives as organisations focus disproportionately on the metrics that the Department has selected to publish. The Department and HMCTS do not yet have the data they need to fully understand and manage the flow of cases. Both are relying on a new case management system to address these gaps, although HMCTS has currently paused the roll-out of this system. Recommendation: In its Treasury Minute response, the Department should set out how the data it has developed and published will lead to improvements in performance and victims’ experiences. 8 Reducing the backlog in criminal courts 1 Capacity in the criminal courts

On the basis of a report by the Comptroller and Auditor General, we took evidence from the Ministry of Justice (the Department) and Her Majesty’s Courts and Tribunals Service about the backlog in the criminal courts.1

As the backlog has increased, so has the time that defendants, witnesses and victims have waited for their case to be completed. Between March 2020 and June 2021, the 1 C&AG’s Report, Reducing the backlog in criminal courts, Session 2021–22, HC 732, 22 October 2021 2 C&AG’s Report, paras 2, 1.6 3 C&AG’s Report, para 1 4 C&AG’s Report, paras 3, 6 5 Qq7–10; C&AG’s Report, paras 5, 1.10–1.11 6 Qq19–20; C&AG’s Report, para 6 Reducing the backlog in criminal courts 9 number of cases waiting longer than a year increased by 302%, from 2,803 to 11,379.7 The Department told us that it is focusing on reducing waiting times as well as the size of the Crown Court backlog, and that this will require improvements in productivity and the rate at which courts can complete cases. The Department said it needs to be careful that this focus on reducing waiting times does not create perverse incentives, for example by avoiding the more difficult cases.8 HMCTS told us that the local judiciary in each area has a great understanding of how long each case will take to complete and accepted that there was more it could do to bring these data together.9 Recruiting and retaining staff

The Department’s plan to reduce the Crown Court backlog to 53,000 cases relies on increasing the number of sitting days from 100,000 in 2021–22 to 105,000 in 2022–23, then 106,500 in both 2023–24 and 2024–25.10 HMCTS told us that it has the court staff that it needs to meet these plans.11 But the Department needs to recruit more judges to meet this increase, and has faced difficulties recruiting the numbers it needs. In the last recruitment round, it filled 52 of 63 available positions for full-time, salaried circuit judges. It said it is hoping to recruit a further 78 full-time judges, which will meet the additional demand it expects as well as the shortfall from the last recruitment round.12

In the meantime, the Department is relying on using part-time judges (recorders) to provide the additional judicial capacity it needs. It recruited 104 crime recorders in the last recruitment round, and is looking to expand numbers further significantly. The Department told us that currently recorders are not working as many days as it expected, and so is working with the judiciary to encourage recorders to work more days.13 Increasing the amount of work that recorders undertake as judges means they have less time in their substantive roles as criminal barristers and solicitors. The Bar Council, Law Society and Criminal Bar Association all reported there are already severe pressures in recruiting and retaining criminal barristers and solicitors.14

In 2017, the Lammy review into how ethnic minorities are treated in the criminal justice system noted the importance of recruiting a diverse judiciary, and recommended a national target to achieve a representative judiciary by 2025.15 In 2020, the judiciary published its diversity and inclusion strategy to improve the representation of underrepresented groups within the judiciary.16 While discussing its plans in the session to boost judicial numbers, the Department did not reflect on what is needed to maintain and improve the diversity of the judiciary. 7 C&AG’s Report, para 7 8 Qq33–37 9 Q91 10 Qq23 11 Qq15–18 12 25, 69, 113 13 Qq25; 70 14 The Bar Council (RBC0007), The Law Society (RBC0002), The Criminal Bar Association (RBC0010) 15 The Lammy Review: An independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System, September 2017 16 Courts and Tribunals Judiciary, Judicial Diversity and Inclusion Strategy 2020–2025, November 2025 10 Reducing the backlog in criminal courts Prison places

The Department expects that the demand for prison places will increase significantly. Its plans to increase the number of days that the Crown Court hears cases, and the resultant reduction in the backlog, will likely mean more people being convicted and sent to prison. The recruitment of an additional 20,000 police officers by 2023, announced by the government in October 2019, will also mean more cases coming to court and likely more people sent to prison.17

In July 2021, the Department estimated that its court recovery plan and the increase in police officers would result in a shortfall of 4,000 prison places by the end of 2023, over and above the 18,000 additional prison places that HM Treasury had already agreed to fund as part of the Department’s prison build programme.18 In the 2021 Spending Review, the Department secured funding for 2,000 more prison places, bringing total funding to £3.8 billion to deliver 20,000 new prison places by the mid-2020s, including six new prisons.19 The Department said that its strategy is to not only have enough prison places but to have the right types of prisons and in the areas where it most needs them, though it accepted it may not achieve this until the medium to long term.20

The Department described how it is tightly managing the prison build programme to ensure there is sufficient capacity, including closely monitoring the delivery of new prison places against the demand for those places. The Department told us that HM Treasury and the Infrastructure and Projects Authority are also closely involved, and that it has set up a delivery board to manage its portfolio of programmes.21

We have reported previously on matters concerning the expansion and maintenance of the prison system. For example, in September 2020 we found that the Department had delivered just 206 new prison places, against a commitment of 10,000 new-for-old places by 2020.22 In March 2021, we reported that the 2019 Spending Review settlement included only £315 million for maintaining the prison estate, against a maintenance backlog valued at nearly £1 billion.23 We have also reported previously on the Department’s efforts to reduce re-offending, which the Department recognises is the best way to tackle crime. In September 2020, we concluded that its efforts were being put at risk by the absence of a cross-government strategy.24 17 Q73; C&AG’s Report, para 3.15 18 C&AG’s Report, para 17 19 Qq73–78 20 Q81 21 Qq74–77, 80 22 Committee of Public Accounts; Improving the prison estate; 15th Report of Session 2019–21, HC 244, 11 September 2020 23 Committee of Public Accounts; Key challenges facing the Ministry of Justice; 52nd Report of Session 2019–21, HC 1190; 24 March 2021 24 Committee of Public Accounts; Improving the prison estate; 15th Report of Session 2019–21, HC 244, 11 September 2020 Reducing the backlog in criminal courts 11 2 Impact on court users Vulnerable and disadvantaged users

Since the start of the pandemic, the Department and HMCTS have significantly increased the use of hearings held remotely using video technology, and plan to continue to use them to reduce the backlog in the courts.25 We asked what impact the increased use of remote hearings has had on different groups of victims and witnesses, particularly those with cognitive impairment, mental health conditions or neurodiverse conditions. HMCTS published its formal evaluation of remote hearings on 10 December 2021, but said that the feedback from court users that are disabled or with accessibility difficulties was limited by the small number within its survey sample. The feedback it did receive was mixed, for example users felt safer in their own environment but found it difficult to access the support that they needed from their advocate or support services.26

The Department told us that the use of remote hearings is at the discretion of the judge in each individual case, and that everybody is entitled to have their reasonable adjustments considered by the judge. However, a third of people who requested reasonable adjustments said their request was not granted. The Department said that it will look into these issues further to ensure that participants’ needs are taken into account. HMCTS told us it will take several more months to work through the detail of the evaluation and revise its approach if needed.27

We also asked about the impact of the pandemic on black, Asian and minority ethnic individuals, particularly given that the Department has faced difficulties collecting and analysing data on ethnicity in the past. Since the Lammy review in 2017 into the experiences of ethnic minorities in the criminal justice system, the Department said that while it had made significant improvements in standardising the ethnicity data collected across the system, there are still large gaps and it does not have the data it needs to know the true impact of the pandemic. The Department said it is working to improve how it measures and evaluates the impact, although HMCTS said that its recent work has been focused on civil and family courts and tribunals rather than criminal courts. On remote hearings, HMCTS said it did collect data on ethnicity in its evaluation and found no significant variation in experiences between different ethnic groups.28 Rape and serious sexual offences

The Department explained that victims of rape and serious sexual offences had been particularly affected by the pandemic. These difficult and complex cases are more likely to need a jury trial, which need space to accommodate the jury. It was more challenging to hear jury trials during the period when social distancing was in place given the additional space needed to hear trials safely.29 As a result the number of such cases waiting longer than a year increased by 435% between March 2020 and June 2021.30 Since March 2021, the number of rape and serious sexual offence cases in the backlog actually fell, though the 25 Qq59–61; C&AG’s Report, para 2.12 26 Qq59–60 27 Qq59–61 28 Qq62–68 29 Q38 30 C&AG’s Report, para 9 12 Reducing the backlog in criminal courts Department accepted the number needs to come down much further.31 The Department published its end-to-end rape review in June 2021 which set out actions to increase the number of rape and serious sexual offence cases being prosecuted and convicted, which could add further pressure on the courts.32 The Department said that it was too early to assess the impact of its rape review on cases in the backlog.33

The Department explained how the longer victims wait for their case to be heard in court, the greater the risk the victim withdraws their support of the process and the case collapses.34 It told us that the proportion of cases collapsing through victim or witness attrition fell in the last quarter, to 1.2% of cases between April and June 2021. However, the rates of victim and witness attrition are large and increasing in other parts of the criminal justice process: some 29% of cases collapse because of victim and witness attrition between the crime being recorded and the police deciding whether to proceed with the case, and a further 16% of cases collapse between the police referring the case to the Crown Prosecution Service and a defendant being charged.35 The Bar Council expressed particular concern about the increasing time for the Crown Prosecution Service to charge rape cases.36

Several organisations wrote to us to describe the trauma and impact on victims having to wait longer for their cases to be heard.37 In the evidence session, the Department set out some of the actions it is taking to better support victims. It is increasing what it spends on victim support services from £92 million in 2019–20 to £185 million by 2024– 25, including funding for rape support centres and sexual violence support services.38 It has launched a consultation on improving victims’ experiences of the justice system.39 It is also increasing the number of independent sexual violence advisers (ISVAs) to 1,000 by 2024–25. The Department told us that ISVAs support victims from earlier on in the process and have been shown to reduce by 50% the likelihood of a victim withdrawing their support.40 Data to understand the system

The Department told us that having good data across the criminal justice system is a crucial first step in achieving the right outcomes and bringing the courts backlog down. In December 2021, the Department published two scorecards—one covering all crime and one covering adult rape—that bring together data on performance across the criminal justice system, including on the size of the backlog, timeliness and victim attrition. The Department said that through publishing these data it is seeking to improve transparency and assess what is happening within each part of the system, for example where victims are most likely to withdraw from the process.41 It is also planning to publish local scorecards at the level of individual police forces, and acknowledged it needs to be careful 31 Q41 32 Q39 33 Q42 34 Q42 35 Qq27–32 36 The Bar Council (RBC0007) 37 Police and Crime Commissioner for Lincolnshire (RBC0004), The London Mayor’s Office for Policing and Crime (RBC0005), Association of Police and Crime Commissioners (RBC0006) 38 Q38 39 Q26 40 Qq38, 49 41 Qq22, 33 Reducing the backlog in criminal courts 13 that publishing and using these data does not threaten the operational independence of the police, Crown Prosecution Service or judiciary.42 The Association of Police and Crime Commissioners said that these data should not be used to punish partners in the criminal justice system but instead enable them to deliver improvements and share best practice.43

We asked HMCTS what progress it had made on implementing Dr Natalie Byrom’s recommendations on digital justice and data.44 HMCTS told us it had set up a senior data governance panel to provide advice on the accessibility of data and will announce in early 2022 what data it intends to publish and make available. In its written submission, the Legal Education Foundation expressed frustration at the lack of progress on implementing Dr Byrom’s recommendations.45 In particular, HMCTS’s progress has been limited by not currently collecting all the data that it wants. When complete, HMCTS said that its reform programme and new digital case management system—the Common Platform—will address the key gaps in its data.46 HMCTS told us it has rolled out the Common Platform to 44% of Crown Courts. It has experienced some problems with the system, including slow processing at particular points, so HMCTS has paused the rollout while it addresses these issues and carries out a formal review. It said that this pause would also give it time to build back the confidence of HMCTS staff and others using the system. HMCTS told us there was contingency built into its plan and so should not affect the timing for completing the rollout.47 However, we have reported previously on delays to HMCTS’s reform programme. In July 2018, we reported that HMCTS had pushed its expectation for completing the rollout of the Common Platform from July 2018 to July 2020.48

We asked the Department what it is doing to improve data flows across different parts of the criminal justice system. The Department told us that joining up data across the system is a priority.49 It has recruited an additional director of analysis and is recruiting a director-general of performance strategy and analysis to improve its grip on data as well as a director-general of service delivery and change to lead on delivery in digital transformation.50 The Department said that it is also a focus of a criminal justice action group that brings together permanent secretaries of the Department, the Home Office and Crown Prosecution Service.51 HMCTS added that it is also investing in a team to analyse data, both for managing HMCTS and to feed into the Department’s broader data capabilities.52 42 Qq94–97 43 Association of Police and Crime Commissioners (RBC0004) 44 Q99; Dr Natalie Byrom, Digital Justice: HMCTS data strategy and delivering access to justice, Report and recommendations, October 2019 45 Legal Education Foundation (RBC0009) 46 Qq99–100 47 Q82 48 Committee of Public Accounts; Transforming courts and tribunals; 56th Report of Session 2017–19, HC 976, 20 July 2018 49 Q87 50 Qq84, 101–102 51 Q84 52 Q87 14 Reducing the backlog in criminal courts