Crowded house

As the backlog of cases in the magistrates’ courts rises, the resultant chaos, delay and dysfunction are laid bare in a new report, trailed exclusively in the Gazette.

Figures released this month by the Ministry of Justice reveal that the number of outstanding cases in the magistrates’ courts alone rose to 382,972 in February 2024 – up from 337,481 in the same month last year.

The government claims that the courts, which deal with most criminal cases, are still recovering from the impact of the pandemic. Others have been forced to close due to safety fears over reinforced autoclaved aerated concrete, the lightweight building material that was used from the 1950s to 1990s and is reaching the end of its useful life.

The findings of a survey which will be published by the charity Transform Justice later this month paint a vivid picture of daily failings and inefficiency in the courts. Defendants, complainants and others are mired in limbo and confusion.

CourtWatch London was a mass court observation project in which 83 citizen volunteers visited London magistrates’ courts over a six-month period in 2023, between them watching more than 1,000 hearings and documenting what they saw.

Inspired by successful projects in the US and around the world, the project is funded by the Barrow Cadbury Trust and the Network for Social Change.

‘Courtwatchers had few preconceptions about the magistrates’ court process but all were surprised by what they perceived to be its inefficiency,’ the report states.

In particular, it says: ‘They were shocked that hearings seldom started at 10am as advertised, that there were many delays even after courts did get going and that lawyers often did not seem prepared for cases.’

Of the 1,055 hearings where an outcome was recorded, over a fifth (22%) ended in adjournment.

The observers struggled to discern what caused the delays, partly because they were not informed, and in some instances they questioned why cases were in court at all.

‘It was a frustrating day,’ wrote one observer. ‘One closed court in the morning, then just sitting around waiting. No cases until the afternoon. Having worked in successful, corporate businesses my first impression of a magistrates’ court was not great. A great deal of time wasted and to be honest a bit of a casual attitude.’  

Another wrote: ‘What a day! It starts to become frustrating going into court and looking at how the system has gone down, and it seems that no one complains about it, they all put up with it, although you could see the judge getting frustrated, but that’s it.’ Others reported ‘lots of sitting around from 10 to 11.05’, and ‘ages… spent waiting for something to happen’.

Many delays, observers noted, arose from lawyers – both prosecution and defence – or others not having the information they needed. Courtwatchers felt that much of the prosecutors’ inefficiency stemmed from having to deal with too many cases.

One said: ‘I was alarmed by the burden one prosecutor is meant to shoulder.’ They noted that magistrates were not always sympathetic.  

The number of clients that defence lawyers had to deal with was cited by the observers as a reason for delays, along with the late or non-disclosure of evidence by the Crown, which required adjournments to discuss the evidence with defendants.

Digital case management

When CourtWatch London began, court staff had only recently started using the Common Platform – the cloud-based, digital case management system developed in-house by the courts service.

'Nobody knows what is going on! Court staff cannot access info about cases. Case records duplicated. Defendant with multiple cases at different courts causing headaches for police, solicitor, court staff and judge'

Magistrate court observer

Some courts were using Common Platform alongside the old system. Teething problems with the new technology meant that staff had problems entering and retrieving digital information.

Courtwatchers felt that technology was often not fit for purpose and worked effectively only half the time, which contributed to inefficiency.

‘Nobody knows what is going on!’ wrote one observer. ‘Court staff cannot access info about cases. Case records duplicated. Defendant with multiple cases at different courts causing headaches for police, solicitor, court staff and judge – seems like the IT systems are not good plus people not well trained in their use.’

Picking up the pieces

Lawyers working in the courts daily recognise these issues only too well. Zayd Ahmed, a criminal barrister at Mountford Chambers in London and chair of the Young Criminal Bar Association, notes the lack of defence solicitors and barristers, who have been driven out of criminal legal aid work because of low fees. This, he says, leaves fewer advocates ‘picking up the pieces’.

Richard Graham, a solicitor at Graham & Co in Kent, says a lack of court legal advisers adds to the problems. This has resulted in Kent courts listing cases for sentence in January 2025.

Courts routinely sit until 5pm to cope with the volume of work and cases are often sent to other courts to help out. ‘You have a crazy situation where a client from Margate is sentenced via videolink by a bench in Sevenoaks 70 minutes’ drive away,’ says Graham.

Staff shortages across the criminal justice system are ‘chronic’, laments Tom Franklin, chair of the Magistrates’ Association, the organisation that represents 12,000 magistrates in England and Wales. He suggests that employing more legal advisers would have the single biggest impact on easing the situation.

Franklin says experienced legal advisers have been leaving in droves because of work pressure or to get better-paid jobs elsewhere, resulting in ‘hearings being abandoned because a legal adviser isn’t available’.

Limited cell space at courts alongside problems bringing defendants from prison is another key reason for delay. ‘It is normal for clients still to be arriving at court at 3pm,’ says Graham.  

He recently had a client who was remanded in custody at Folkestone Police Station. The client was not brought to Folkestone Magistrates’ Court, which is 300 metres away, because of a lack of cell space.

Ahmed says that the physical condition of the courts makes the working environment ‘less than ideal’, as the buildings are poorly maintained, dirty, and lack functioning heating and lavatory facilities, or space for advocates to work.

The Magistrates’ Association notes that its depleted ranks, despite MoJ recruitment drives, presently number 13,340, rather than the 17,000 it suggests are needed.

However, for many barristers and solicitors, these volunteers who mete out justice are not highly regarded. They are often biased and lack formal training, says Ahmed, who has found some magistrates to be ‘rude, judgemental and unable to understand basic legal principles’.

In ‘numerous’ cases, he adds, clients have successfully had convictions overturned at the Crown court.

Ahmed’s comments echo the findings of a pilot study of 15 lawyers conducted by Kate Leader, senior law lecturer at Queen Mary, University of London, and Lucy Welsh, a reader in criminal justice at the University of Sussex.

Funded by the Society of Legal Scholars, their work is a first step in wider research. An (admittedly small) focus group showed an ‘overwhelmingly negative’ perception of the lay magistracy, which the lawyers found to be too pro-police and prosecution, lacking sufficient understanding of the law or procedure, and more inconsistent than district judges.

The participants felt that some magistrates took insufficient notice of the advice given to them by legal advisers. One barrister said that ‘they go around like little emperors’.

Despite these observations, most want to retain a lay magistracy, but with improved training and better communication skills.

Keeping going

Responding, Mark Beattie, national chair of the Magistrates’ Association, pointed to the small sample and noted that two of the lawyers were retired. He acknowledged that some findings were ‘concerning’, but stressed that magistrates receive ongoing training and that without them the ‘legal system would quickly grind to a halt’.

A controversial aspect of magistrates’ work is the Single Justice Procedure. Introduced in 2015, this is intended to allow magistrates to deal more efficiently with minor offences – such as driving without insurance, non-payment of the TV licence fee and not having a valid train ticket – without the need for a court hearing, enabling more serious cases to be heard in court more quickly.

Cases are heard by a single magistrate, supported by a legal adviser in a private process from which the media are excluded.

The SJP, which handles around 40,000 criminal cases every month, has been criticised for opacity and unfair outcomes for many vulnerable and elderly defendants, many of whom are unaware that they have been prosecuted.

Concerns extend to members of the Magistrates’ Association, which this month called for reform to make the SJP fairer, and more consistent and transparent.

Among 12 recommendations, the association says that prosecutors should see all pleas and mitigation before cases are heard by magistrates. It suggests improving the training that magistrates receive before they can sit on SJP cases, emphasising their ability to use their discretion fully, including the ability to refer cases back to the prosecuting authority.

The association also recommends that sittings should be observable by accredited journalists; and wants research to be undertaken on how improvements can be made for the vulnerable, including those with learning difficulties and communication challenges.

The SJP, says Ahmed, ‘is not justice’, because those charged are usually expected to enter a plea without seeing any of the evidence against them. These cases, he adds, are not eligible for legal aid, so most defendants get no legal advice.

In 2022, in a bid to reduce the burden on the Crown courts, ministers increased magistrates’ sentencing powers from six to 12 months. The measure was suspended in March last year due to prison overcrowding. There were 66,842 outstanding cases as of February 2024.

‘We have been assured that the removal was not a reflection of how magistrates used their jurisdiction,’ says Beattie, rejecting the accusation that magistrates overused sentencing powers to send more people to prison for longer.

Beattie says that magistrates do not expect the increased power to be reinstated until the provision of prison places allows, but as public servants they are ‘ready to support the efficient and fair administration of justice’.

Lawyers caution against reinstating the additional power, arguing that it will add to the pressure on magistrates’ courts, which are also feeling the pinch from an increase in charging by the police.

Summary justice

To help reduce the Crown court backlog, the lady chief justice, Baroness Carr, recently suggested removing the right of some defendants, charged with either-way offences, to choose trial by jury – making them triable summarily.

Most lawyers reject the idea as tantamount to undermining what has for centuries been a cornerstone of British justice. Tana Adkin KC, chair of the Criminal Bar Association, says: ‘Whatever the cause of the backlog in criminal cases that now requires the justice system to increase its capacity, this should not be at the expense of fair and effective justice for all. The 12-person jury not only has been demonstrated to lack bias, but has also has been demonstrated over centuries to deliver effective justice.’

Ahmed agrees, branding the idea ‘dangerous’ and suggesting that it would do little to reduce the burden in the Crown courts because more defendants convicted by magistrates would likely appeal.

However, Franklin welcomes the proposal, insisting that magistrates’ courts are ideally placed to relieve the pressure on Crown court capacity, help reduce the backlog and enable the most serious offences to be dealt with more quickly in Crown courts.

But fears about the implications of such proposals on already stretched magistrates’ courts persist. In the end, though, money is the elephant in the room. Law Society president Nick Emmerson says: ‘If the government is serious about tackling the backlogs, it must provide the funding needed to ensure there are enough solicitors to represent people in court and, even before then, at the police station’.

He adds that this must include the 15% real-terms increase for defence solicitors, which the Society’s recent High Court victory demonstrated is so desperately needed.

 

Catherine Baksi is a freelance journalist