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This is why there are so many court case delays, as law professionals call for rethink of justice system amidst Covid-19 backlog

The number of delays in criminal trials reaching the courts has swelled since the pandemic, with victims and defendants forced to wait months before having their case heard.

Last November, KentOnline revealed defendants in Kent were being told to wait up to 18 months before their cases could be heard by a jury.

There are huge delays to cases throughout the justice system
There are huge delays to cases throughout the justice system

As of March 2021 the number of outstanding crown court trials across the country was more than 57,000 compared to 39,000 trials recorded as outstanding exactly a year before - and the number of outstanding magistrates court hearings stood at an eye-watering 476,451.

And according to the Criminal Bar Association, more than four times the number of crown court trials did not conclude as scheduled when compared to pre-Covid times.

With victims desperately waiting for justice and the accused stuck in limbo, we explore the effects of a court system straining under its own weight - and what can be done to change it.

What has it been like working in the courts through Covid?

With social distancing measures, technological mishaps and the need to isolate at a moment's notice, court staff have been stretched to breaking point since March 2020.

Canterbury Crown Court
Canterbury Crown Court

Many industries and businesses were forced to close, but the critical need to keep hearing cases had courts frantically scrabbling to keep day-to-day hearings running as smoothly as possible.

Magistrates courts are a crucial component of our justice system, with even the most serious cases starting out there before moving to crown court.

We spoke to a member of staff working at one of Kent's magistrates courts to find out what it was like dealing with such an unprecedented set of problems.

Court worker David - not his real name - worked throughout the pandemic, and said the past 14 month have been incredibly stressful for him and his colleagues.

He said: "We had a massive period where we didn't have any non-urgent cases going through, and that just caused a massive backlog.

As we all went into lockdown, court staff across Kent tried to keep cases running smoothly. Picture: Jo Court
As we all went into lockdown, court staff across Kent tried to keep cases running smoothly. Picture: Jo Court

"We had something stupid like between 200-300 cases going through at once and we were all just trying to get through it."

As the country went into lockdown and the virus spread across Kent's communities, the matter of positive Covid tests became a huge hurdle for the courts to overcome.

David said: "It does stop people coming down because something people are genuinely scared about it and worried about getting the virus, and others are using it as an excuse not to turn up.

"We've got people that have cases back from last year that we've had to put on hold because we can't deal with them, and there are cases that are more urgent."

Although people who cannot attend court are asked to provide evidence such as a positive Covid test or a doctors note, the potential last-minute nature of symptoms mean inevitably some people fell through the cracks.

"We had something stupid like between 200-300 cases going through at once and we were all just trying to get through it..."

Now David said he and the staff feel more comfortable with the daily flow of work, but constraints of the system made a tough task of adapting in the first few months.

He said: "A lot of it has been trial and error, for example things like our video links, that did have a good impact because it allowed us to get in more cases, but it comes with the issues of people not having laptops or smartphones or weren't able to connect, so they had to go in the backlog to be waded through.

"The court wasn't prepared for it - everything was done by an old way."

And the 'old way' may be far more to blame for the state of the justice system than you ever realised.

A much larger problem

Judge Simon James last month demanded urgent answers from Kent police after a case involving an alleged child sex attack victim suffered an astonishing three-year delay
Judge Simon James last month demanded urgent answers from Kent police after a case involving an alleged child sex attack victim suffered an astonishing three-year delay

While it is true courts have been put under great strain since the pandemic hit, stories about delays are not new.

In December a Kent judge unleashed an explosive attack on what he called "entirely inexcusable" delays in the justice system, over a case involving a relationship in 2017 between a boy 12 and girl 17 which took almost four years to be heard.

So why were delays so common, even before Covid-19?

According to one Kent prosecution barrister, it all comes down to money.

Don Ramble, who has spent years working on cases across the county, said: "Over many years there has been chronic underfunding of the criminal justice system.

"There is currently a record backlog of criminal trials and that's about 58,000 as far as crown court cases are concerned, but also on the eve of Covid there were over 40,000 Crown court cases waiting to be heard.

"This isn't a case of as soon as the coronavirus hits the backlog begins - the backlog began many years ago."

What the prosecution barrister refers to as "chronic" underfunding stretches across the breadth of the justice system.

Research published on the House of Commons library in January 2020 cites several important departments receiving less funding than they did nearly a decade earlier.

For example, the Crown Prosecution Service (CPS) is responsible with deciding whether or not to prosecute alleged criminals based on the evidence gathered by police.

"This isn't a case of as soon as the coronavirus hits the backlog begins - the backlog began many years ago..."

With an uptick in the number of crimes committed in the past 10 years across the UK, you would imagine the CPS would be given additional funding to hire more prosecutors, to keep up with the demand of incoming cases.

But in 2018/19 there were 5,684 full-time equivalent CPS staff, compared to 8,904 in 2010/11 - a decrease of more than a third.

Despite the pledge of an £85m cash injection into the CPS announced by Prime Minister Boris Johnson in 2019, public service trade union the FDA said, "it is not enough to undo all the damage that has been done by years of cuts."

It doesn't stop there, either.

Between 2010 and 2020, 51% of all magistrates courts in the UK were closed - the South East saw 25 closing, the largest number in any region across the UK.

Medway Magistrates Court. Picture: John Nurden
Medway Magistrates Court. Picture: John Nurden

While the government say the closures were part of a reform program which would reduce the need for physical court appearances, many professional law practitioners believe it has only added to the delays to justice.

Mr Ramble believes the pandemic has exacerbated delays, but has ultimately revealed a far greater philosophical problem laying at the heart of our criminal justice system.

He said: "We are a first world country and we like to lecture other countries about problems they have with their criminal justice systems and how they can be improved, but I think it's important too, to see where we are.

"Perhaps it's stating the obvious, but if you're going to run a proper country, if you're going to be a proud country and do things properly, you need to invest in the basics like your criminal justice system."

On a positive note, the barrister praised Kent's crown court staff for being ahead of the game when it came to making the county's courtrooms Covid-compliant and attempting to wade through the case backlog.

"If you're going to be a proud country and do things properly, you need to invest in the basics like your criminal justice system..."

He said: "Coronavirus has significantly impacted on the court's abilities to hear cases. However, the courts have responded, the court staff, the judges have responded.

"You can see particularly in Maidstone and Canterbury were ahead of the game when you compare them to many other courts around the country, in installing the perspex and the social distancing that is required.

"But still there's a limit to what can be done."

How do delays affect cases?

If a case takes a significant amount of time to be heard, one significant consequence is that justice may not be served.

Delays have hit record highs since the pandemic began
Delays have hit record highs since the pandemic began

In January, a man from Maidstone took police on a high-speed car chase, weaving in and out of traffic and shooting the wrong way around a roundabout before fleeing from the moving vehicle.

Three-and-a-half years after committing the crime, the judge hearing the case was forced to drastically slash his expected jail sentence due to the delay.

At the hearing the judge said: "Bluntly, it is a case that should have been dealt with much closer to the time and the reality is you would have faced a sentence of imprisonment of between four to six months."

Current sentencing guidelines mean delays which are not the defendant's fault can be considered a mitigating factor by the judge.

The considerations could be that the accused has taken steps to rehabilitate since the initial charge, or simply the fact they have lived with the case hanging over their head for so long.

A Maidstone man who took police on a high-speed car chase has his sentence slashed due to a delay getting it into court. Picture: Stock image
A Maidstone man who took police on a high-speed car chase has his sentence slashed due to a delay getting it into court. Picture: Stock image

Data also reveals a decrease in cases which result in prosecution following the pandemic - the number of people being prosecuted or being handed out-of-court disposals fell by 22% from September 2019 to September 2020, according to the Ministry of Justice.

Another consequence of delays is their effect on witnesses.

If a trial is delayed for a long period of time, witness testimonies can end up weakened due to the natural passing of time.

Mr Ramble said: "As time goes by, your memory tends to fade with time, and so something that happened six months ago is more memorable than something that happened two years ago."

That might seem like an obvious consequence, but there is another which sits at the centre of witness cooperation - confidence in the justice system.

"As time goes by, your memory tends to fade with time..."

The prosecution barrister said: "The criminal justice system depends on witnesses being willing to give evidence.

"Now, if you or I witnessed something, I'm sure we would be willing to be a witness to that and to explain what we saw - but if we have to wait years potentially, we might disengage and be less willing.

"We might want to move on with our lives and particularly victims might wish to move on with their lives."

The impact on victims

In March of this year, the victims' commissioner for England and Wales, Dame Vera Baird, told MPs that victims were being "re-victimised" as a result of long waits for hearings during the pandemic.

Victims can have their trauma lengthened by delays in the system
Victims can have their trauma lengthened by delays in the system

Giving evidence to Parliament’s Justice Select Committee, she explained she had spoken to victims who had made it as far as waiting outside a court room to give evidence, only for court staff to have to cancel a hearing and reschedule it for one reason or another.

These occurrences are not unique to the pandemic, and have been happening for years.

David Naylor, the area manager for Victim Support in Kent and Medway, said delays and last-minute cancellations to give evidence submit victims to prolonged trauma.

He said: "As a victim of crime, you didn't ask to become a victim of crime and you didn't ask to be a part of this system, but you are expected to conform to it.

"And I think that's the worst case scenario - I don't think that it's something that happens frequently, but it does happen."

Victim Support is a charity working with victims of crime who are faced with the prospect of giving evidence and having to deal with traumas as a result of what has happened to them.

As an independent organisation, Mr Naylor said it is important for victims to know they have someone to confide in who is not a direct cog of the justice system.

He said: "People can talk to us and they can express their frustrations, which they may feel that they can't with the police or with the courts for fear of being judged or for any other reasons.

"So it, our independence the work around advocacy is just so key. We are on their side and we will always be."

Mr Naylor and the teams at the charity have been hard at work throughout the pandemic managing the expectations of victims and being on hand if and when delays occur.

"We are on their side and we will always be..."

But despite the very real impact of Covid-19 on delays to justice, Mr Naylor also believes the situation could inspire widespread changes which better support victims.

He said: "It's an excuse to get away from some traditional thinking. Kent has been actually quite forward focused in terms of how victims are engaged with and having to give evidence in court.

"We were one of the first areas to go with the option of doing remote evidence and that is probably going to have to increase, because it will make it much easier.

"And I think it's better outcome for the victim if they don't necessarily have to attend court, but they're given the option not to."

Mr Naylor believes the Kent courts using remote evidence techniques could be more widely adopted to reduce the huge backlog spread across the entire country.

Delays mean a proportion of the prison population are waiting for their day in court
Delays mean a proportion of the prison population are waiting for their day in court

How do delays affect prisons?

Those charged with the most serious crimes are usually remanded in custody to await their hearing.

But as the crown court backlog grew during the pandemic, so did the number of prisoners waiting for their case to be heard.

Based on government data between March and December of 2020, those people represented more than 15% of the prison population.

Overpopulation in our prisons has been a well documented problem for a number of years, with organisations such as the Howard League for Penal Reform campaigning for an overhaul of the prison system.

Image of HMP Elmley taken in 2003, for a report on overcrowding
Image of HMP Elmley taken in 2003, for a report on overcrowding

HMP Elmley, on Sheppey, is a category B prison used in part to house prisoners on remand awaiting hearings or trials.

According to the charity, Elmley was Kent's most overcrowded prison based on the latest data available.

The most recent inspection carried out in 2019 by the Criminal Justice Inspectorate showed 11.6% of Elmley's population - 129 prisoners - were on remand.

Frances Crook, Chief Executive of the Howard League for Penal Reform, said: "The Howard League works for less crime, safer communities and fewer people in prison.

"The backlog in the courts has put additional strain on everyone affected by crime – not only defendants spending longer in prison awaiting trial, but also victims, who are having to wait even longer for their cases to be heard.

A photograph of Maidstone Prison taken in 1964
A photograph of Maidstone Prison taken in 1964

"Now, more than ever before, it is vital that police and prosecutors use their discretion and make sensible decisions to ensure that people are not swept into the system unnecessarily."

What are the government doing about it?

As the delays continue to grow, the Ministry of Justice last month announced unlimited funding to be made available to open more court rooms across England and Wales.

A Ministry of Justice spokesman said: "There will be no limit on the number of days Crown Courts can sit for the next financial year.

"As we continue to boost recovery in the courts following the pandemic, this will help them maximise capacity across the justice system and safely hold as many hearings as possible over the coming year."

The Ministry of Justice have announced more cash to fund an 'unlimited' number of sitting days in court
The Ministry of Justice have announced more cash to fund an 'unlimited' number of sitting days in court

A sitting day means a court room is open and managed by the full number of staff needed to hear cases.

In 2010 there were 110,000 Crown court sitting days, but following a coalition government leading with a policy of austerity, that number was drastically cut.

Just before the pandemic began the number of court days had been reduced to just 86,000.

Prosecution barrister Mr Ramble said: "It is perhaps a sad state of affairs where the government says, "we're not going to limit the number of court dates" when the problem is those number of court dates have been limited and restricted over the past 10 years at least, as a cost saving measure."

Right now it is unclear whether this 'unlimited funding' will continue once the swelling case backlog is reduced to pre-Covid levels - but what is clear is that without a systematic change to the funding of our justice system, it is highly likely delays will continue indefinitely.

To read more of our in depth coverage of all of the major trials coming out of crown and magistrates' courts across the county, click here.

For information on how we can report on court proceedings, click here.

Read more: All the latest news from Kent

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