Court backlog target in England and Wales no longer achievable, says NAO

The Ministry of Justice’s ambition to reduce the backlog in crown courts in England and Wales to 53,000 by March next year is no longer achievable, a parliamentary watchdog has said.

The MoJ set the target in October 2021 when the outstanding caseload was 60,000, but by the end of last year it had reached 67,573 – its highest level ever – according to a National Audit Office (NAO) report.

The report’s publication date was decided before the election announcement, but the criminal justice system is expected to be a key battleground between Labour and the Conservatives. On Wednesday, ministers triggered emergency measures, leading to the last-minute postponement of hundreds of court hearings, and release of suspects on bail rather than being held on remand, to tackle prison overcrowding.

The NAO says the remand population in jails, which last year reached more than 16,000, the highest in 50 years, with around two-thirds awaiting trial as opposed to sentencing, is contributing to “acute prison population pressures”.

Meg Hillier MP, the chair of the Commons public accounts committee, said: “Victims, witnesses and defendants are waiting an unacceptable amount of time for their cases to be heard, with the average crown court case taking almost two years [from offence until completion].

“Longer waits are damaging to victims’ mental wellbeing and increase the risk of the trial failing. Changes made to one part of the criminal justice system affect other parts of the system, for example increasing prison population pressures. The Ministry of Justice must get a grip on these impacts, understand them better and take coordinated, timely action so justice is delivered quicker, and the case backlog is reduced.”

In the final quarter of last year, a case took 683 days on average from offence to completion in the crown court, with almost a fifth relating to sexual offences and approximately a third involving violence against a person.

Among contributory factors to the backlog identified by the report were a shortage of criminal law practitioners, trials frequently being postponed at the last minute, an increase in complex cases such as adult rape, the effect of the Covid pandemic and strike action by the Criminal Bar Association (CBA) between April and October 2022.

Last year, the number of trials cancelled on the hearing day because not all legal professionals required were available rose to 1,436 (5% of trials), up from 71 (0.3% of trials) in 2019.

The NAO warns that court buildings not being fit for purpose “due to long-term underinvestment” may add to the difficulty in reducing the backlog. This leads to closures because of, for example, leaks or heating failures.

The report, published on Friday, says the MoJ’s own estimate is that the number of outstanding cases will be close to 64,000 by next year, but it has not set a new ambition to reduce it.

The CBA chair, Tana Adkin KC, said: “The NAO report confirms that which criminal practitioners have known for years: that the criminal justice system remains in crisis without a plan for sustained investment, despite the repeated warnings of prosecutors and defence advocates who are tasked with delivering justice daily in our publicly funded courts.”

Nick Emmerson, the president of the Law Society, said: “The report correctly highlights the decline in lawyers working in the criminal defence profession, which is due to a reduction in legal aid fees, increasing levels of stress and poor working conditions. There simply are not enough solicitors, barristers and judges to do all the work and few young lawyers are attracted to the criminal defence profession.”

An MoJ spokesperson said: “The crown court sat for over 107,000 days last year, more days than at any point in the last seven years.

“We are also investing more in the system, rolling out remote hearings, extending the use of Nightingale courts and recruiting hundreds of judges to get victims the justice they deserve and put more offenders behind bars.

“The government is pushing ahead with the largest prison expansion programme in 100 years – with 10,000 of the 20,000 additional places to be delivered by the end of 2025.”