Coronavirus: Lord Chief Justice urges government to act on court backlogs and underfunding

'The consequences of underfunding are coming home to roost,' senior judge says as 1,000 criminal trials added to backlog every month

The new Lord Chief Justice, Sir Ian Burnett, at the Royal Courts of Justice (PA)

The Lord Chief Justice has urged the government to take action as mounting backlogs threaten to overwhelm the “underfunded” criminal justice system.

Lord Burnett, who is head of the judiciary in England and Wales, told MPs that around 1,000 jury trials had been unable to start every month since the start of the UK lockdown in March.

“If this looks like it’s going on for much longer, the government and parliament are going to have to look at temporary legislative changes to enable additional crown court trials to be conducted within our current constraints,” he said on Friday.

Lord Burnett called for the government to draw up proposals that could be put to parliament, including reducing jury numbers to seven and holding some trials in university lecture halls, sports facilities and conference centres.

“My plea to all concerned is don’t wait until we’re in a really difficult position to start thinking about this and start working on the policy,” he added.

“Do it now so if it becomes necessary there’s not a great delay.”

Giving evidence to the Justice Committee, Lord Burnett said technology was being used to conduct as many remote hearings as possible but that courts had been slow to update ways of working after being “starved of funds”.

“There needs to be proper funding of the administration of justice,” he told MPs. “It has been underfunded for years and years, and the consequences of that underfunding are coming home to roost.”

Lord Burnett, who has been a judge for more than 20 years, said there had been a “steady erosion of available resources which cut services back to the bone” by the time coronavirus hit.

By December, the backlog of crown court cases had reached 37,400 after the number of sitting days was cut to save money.

Lord Burnett said that using the figures for 2018-19, it was “not a bad rule of thumb to assume that the number of jury trials accumulating is something in the order of 1,000 a month”.

The Lord Chief Justice, Sir Ian Burnett, at the Royal Courts of Justice (PA)

“If the current situation persists for many more months we're going to accumulate an outstanding body of crown court trials that will take a considerable amount of time to dispose of,” he warned.

“As soon as circumstances allow, we should use its court estate to its maximum capacity in all jurisdictions to deal with the backlogs.”

He raised concern over the impact of delays on defendants being held in custody before trial, while victims' advocates are concerned complainants will drop out of cases.

Ministers have already committed to increase the number of sitting days, and the Lord Chief Justice also called for free-paid judges to be brought in for increased capacity.

He said that courts would have been able to continue “much more” of their work during the UK lockdown if a modernisation programme had not been delayed.

“We’re trying to move the courts forward in a handful of years in a way that should have been happening incrementally over 15 or 25 years,” Lord Burnett told MPs. “We’re catching up and that requires funding.”

Around half the court and tribunal buildings across England and Wales were closed due to coronavirus and jury trials were suspended on 23 March.

Earlier this month Chris Philp, the courts minister, said 85 per cent of hearings were taking place “principally by audio or video” amid concerns about the impact on justice.

Jury trials restarted this week in a limited number of courts, but social distancing requirements mean that they are being spread across three courtrooms - meaning each court has a third of its normal capacity.

The Old Bailey in London is among the courts where a small number of trials have restarted (Getty)

One courtroom contains the judge, jury, advocates and defendants, the second is for members of the public and press, and a third is needed for socially-distanced jury deliberations.

Lord Burnett said that temporary legal changes could be made to increase the number of cases that can be heard.

One is reducing the number of jurors to seven from the current 12 - a change previously made during the Second World War.

“The other thing that’s being looked at in detail is the possibility of using outside accommodation to conduct court hearings,” Lord Burnett said, saying that civil, family and tribunal cases may be more appropriate to hold outside normal courts than criminal trials.

“That might provide an opportunity for courts to be freed up to deal with the cases that can’t be dealt with anywhere else.”

Lord Burnett said that the idea of judge-only trials should “only be contemplated in extremis”, but suggested that some offences that can be tried in either crown or magistrates’ courts could be kept in the lower courts.

“I’m expressing no views at this stage about what might be the best course not least because we need a better idea of how long the current emergency will last,” he added.

“If social distancing is much reduced or a vaccine is found in a few months, or possibly even the antibody test delivers what’s hoped of it then some of these things might not be needed.”

He stressed that any changes made by parliament must be temporary and regularly reviewed.