The future of our Criminal Justice System

The Covid-19 pandemic has placed a spotlight on some of the UK Criminal Justice System’s (CJS) most overarching flaws. Deep-rooted problems have put it in desperate need of overhaul for many years now, but could the latest crisis finally spur our government into action?

Following years of mismanagement and neglect as well as a perpetual shortage of funding, the archaic systems that constitute the CJS have not been fit for purpose for a long time. Highly inefficient at almost every stage, it simply cannot keep pace with a world for which it is intended to dispense fair justice – the working methods of both those committing crimes and those policing continue to evolve and the gap continues to widen.

Criminal Bar Association James Mulholland QC’s recent assessment of the CJS as being “on its knees” encapsulates some of the frustration felt by those of us working within it. Criminal justice is continually treated as very much a concern for this nation, affecting only the margins of society, but in reality – just like healthcare and the economy – it touches the lives of virtually everyone and can permanently alter the course of people’s futures.

With what little progress there was now hampered indefinitely by the pandemic, 2021 and the years that follow are nothing short of crucial for the future of the CJS. With our profession hanging in the balance, experts from criminal solicitors London firm Lawtons Law explain some of their predictions for the foreseeable future.

What the pandemic has changed
The last 12 months have laid bare the legacy of underinvestment that has plagued the CJS for some years – figures from the Ministry of Justice show that its capital spending has been lower than its 2010/11 level for every year of the last decade. This has made the system fundamentally ill-equipped for a pandemic but it is the contrast between our system and the rapidly expanding technologies being deployed that has made the CJS unable to adapt swiftly enough.

Unfortunately it has become almost an accepted cultural feature of the CJS that change cannot be expected to happen quickly – instead, things move at a pace more reflective of the world in which the system was first created. Much more well-resourced national institutions have been able to implement virtual technology and social distancing fairly quickly during the pandemic, but equipment shortages and a lack of clear guidance throughout this period have prevented the transition from being straightforward.

The restrictions in place under Covid-19 have caused the backlog of cases, already a major cause for concern before 2020, to expand significantly. The backlog currently stands at around 45,500 cases and a recent study suggests that it could be as high as 195,000 by 2024 unless immediate action is taken.

What new technologies are being used in courts
While the pace of change has been insufficient, the pandemic has begun to facilitate the kinds of technological developments that have been needed right across the CJS for many years. The new Cloud Video Platform (CVP) means that cases can be heard remotely without prosecutors, defence advocates or witnesses needing to be in the court building. Although this was initially introduced as a temporary safety measure, it could be used to inject new efficiency into the CJS over the coming years.

Occasionally, defendants have also been able to take part in hearings virtually, from police stations, prisons, solicitors’ offices or even their homes, without the need to attend court in person. The difficulty of getting all concerned parties together in one room is so often the cause of court delays, so these types of video-conferencing hearings should help to ease the backlog – but will not solve the problem by themselves.

There is a danger of becoming too reliant on technologies as many industries switch to what they are calling “the new normal”. The experience of a trial in the room cannot be recreated online even with the most up-to-date technology, and for highly sensitive cases or those with particularly vulnerable victims there is no substitute; in-person trials are an absolute necessity. The effectiveness of a skilled cross-examination can also be lost via video link, although the CVP had been used as a special measure for vulnerable witnesses or complainants for some time before the pandemic.

Are court buildings still fit for purpose?

Many London court buildings date from an era where the justice system was very different, and as such are often cramped and poorly equipped for social distancing. The nature of these buildings has made Covid-safe jury trials extremely challenging. For privacy and security purposes a single jury trial requires several separate rooms, and the jury must be physically present rather than video-linked in the way that other participants can be.

The latest coronavirus mutations and resulting lockdown restrictions are set to make an already significant problem worse for the CJS. Most Crown Courts have once again temporarily suspended jury trials, and where they are continuing to take place it can be impossible to run more than one case at the same time in the same building. As the vaccine rollout continues more trials could become feasible – it has been suggested that those who are chosen for jury service could be prioritised for vaccines so that jury trials can be maintained at a steady and sustainable pace.

How the court case backlog can be dealt with

The CJS is being pushed to breaking point by the number of unprocessed cases, and bringing this figure down is the single biggest priority for the government with Justice Secretary Robert Buckland suggesting that the backlog could be brought under control, but not cleared, by the year 2023.

There are various measures which can help to ease the problem, including the use of the CVS, the prioritisation of vaccines for jurors and the Nightingale courts (also known as Blackstone courts) set up during the pandemic. However, none of these are being utilised to their full potential, nor are they enough to remove the problem permanently – proper long-term investment is the only solution.

An upcoming review into criminal legal aid which was recently announced by the Ministry of Justice is designed to ensure that the legal aid market can adapt to the changing criminal justice system, while continuing to provide high-quality advice and representation”, as efforts continue to tackle the growing number of pending criminal cases. However, only a thorough and considered programme of investment and planning – one which truly acknowledges past governments’ failures to modernise and adapt – can resolve the crisis in which the CJS finds itself.

 Written by Stephen Halloran, Director and Solicitor Advocate at Lawtons Law, Criminal Defence Solicitors in London.

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