The court system of England and Wales was already in crisis before the pandemic – a direct effect of government cuts leading to closures and staff shortages. Between 2010 and 2020, the Ministry of Justice’s budget was cut by 40%. Annual spending on legal aid fell by almost £1bn over a period of five years. Then Covid hit, gumming up the system further and leading to widespread cancellations and delays. The consequence is an enormous backlog that has been largely overlooked, in part because most people do not regularly interact with the justice system. Currently there are 372,000 cases waiting to be heard in magistrates courts and almost 60,000 in crown courts, where more serious offences are tried.
We don’t tend to describe court delays as a “waiting list”, but a long queue for justice is what these numbers add up to. This affects victims and witnesses as well as defendants. All must wait, sometimes for years, for the outcome of events that may well have changed their lives. For those held on remand and subsequently found not guilty, there is no recompense for time wasted. Cumulatively, and over time, the risk is a wider loss of public confidence in the legal system. Among victims’ groups, one fear is that offenders may be emboldened. The number of reported rapes reached a new record of 63,136 in the year to September 2021.
At least the government has realised that this situation is untenable. Ministers are considering the recommendations of an independent review of legal aid, including an immediate £135m-a-year funding increase, and the creation of a new oversight board. But the announcement of a new recruitment campaign for 4,000 volunteer magistrates provides cause for concern as well as reassurance. This is because the justice secretary, Dominic Raab, is not seeking simply to build up numbers again – there were 12,651 magistrates last year compared with 25,170 in 2012. Instead his department, supported by the Magistrates Association, is giving them the power to send people to prison for up to a year (the current maximum for a single offence is six months). The plan is that this will free up 1,700 crown court sitting days.
Magistrates, who are lay people with no legal qualifications, play an important role in our legal system. There are good reasons for justice to be administered locally, by people who belong to the community in which crimes have been committed. The closure of around half of all magistrates courts between 2010 and 2019 was shortsighted, and efforts to recruit from a more diverse pool are welcome (and supported by the payment of expenses, including for loss of earnings). But there are also reasons why magistrates’ authority, particularly to send people to prison for long stretches, is limited. Sitting for as few as 13 days a year on a voluntary basis, they lack the overview and expertise of judges. England and Wales already have the highest per capita prison population in western Europe, and an atrocious record on rehabilitation. Improving the performance of the probation service, and developing the use of community sentences, would be more likely to benefit the public than these changes.
Other concerns include the effect that the new sentencing powers will have on defendants’ decision-making. If longer sentences handed down by magistrates result in more appeals, then reduced waiting lists will not be achieved. Mr Raab, who is the sixth Conservative justice secretary in just seven years, is right about one thing: the backlog in the courts is a disaster. But a system-wide crisis created by chronic underfunding will not, with the best will in the world, be resolved by volunteers. This is no way to deliver justice.
