Justice delayed is justice denied. This applies to all parties involved in cases before the family and criminal courts. So when chancellor Rachel Reeves (pictured below) announced on 23 March that she intended to make 15% savings across the Civil Service it was not without a degree of trepidation that court users, be they professional or lay members of the public, held their breath as to how this would impact upon a court system that is already at breaking point.
State of crisis
There are 73,000 unresolved prosecutions. Some defendants face waiting until 2027 or even 2028 for their trials. These figures highlight the state of crisis plaguing the criminal justice system. The current delays also mean that 17,000 defendants are being held on remand – thus fuelling the shortage of available places in jails, given that one-fifth of all spaces were being taken up by defendants awaiting trial. This has in turn led to police cells being used to hold prisoners in order to deal with the prisons crisis. Victims and those accused face an uncertain wait for a hearing, which often comes many years after an allegation was made. To illustrate the point, trials for suspects on bail are being listed in November 2028 at Snaresbrook Crown Court.
The criminal courts are not alone in crumbling under backlogs said to be caused by years of underfunding, increased use and the knock-on effects of Covid. In 2023, it was reported that up to 100,000 children and their families were trapped in court backlogs and that it was taking on average 47 weeks for private law children cases to be resolved (that is, cases involving disputes between parents regarding their children). As for public law cases (those normally involving local authorities and child protection issues), only 23% were being concluded within the requisite 26-week timeframe.
With more and more applications being issued in the family court, this can only mean further delays. Given that children can only be removed from their carers when the threshold of ‘significant’ harm is met, what then of those children that fall just under that threshold but face increasing delays before appropriate measures can be taken to ensure their ongoing welfare?
What can be done?
Reliance on the public court system can be unavoidable. If you are charged with a criminal offence or are seeking to prevent the state from removing your children from your care, you will have no choice but to grapple with a court system that is tearing at the seams. There is a risk that a suspect facing a delay of many years before a trial may consider accepting a caution (if appropriate) in order to get the matter over with, even if they do not accept their guilt.
But what can be done to restore faith and confidence that anyone having to resort to the public court system will not face months, or even years, of delay and uncertainty?
In December, the government announced ‘a once-in-a-generation review of criminal courts’. This is set to report back with initial recommendations soon. Funding and resourcing are only two of the key issues. Any attempt to fix the criminal justice system needs to adopt a holistic approach that includes the police, probation services and prisons.
In family law, changes to court rules that came into effect in April 2024 now place a greater emphasis on non-court dispute resolution (NCDR). The method chosen will depend on the nature of the dispute and the individuals involved.
Arbitration, mediation and early neutral evaluation all come with pros and cons, and the specific method of NCDR will depend on the relevant circumstances. For example, it is simply not appropriate to expect survivors of domestic abuse to confront their abuser in mediation – indeed, court rules prohibit it. While mediation may be suitable for some issues relating to children, such as determining how much time a child should spend with each parent, there are plenty of instances where a more determinative form of NCDR would be more appropriate.
Family law commentators already know that a public court system in crisis and a drive to rely on NCDR risks creating a two-tier justice system. Those with the means to do so can achieve faster resolutions by using NCDR, leaving those without the means to go private left to rely on the courts, with all the delay and frustration that brings.
Comparisons between the justice system and NHS/private healthcare could become increasingly obvious if the Ministry of Justice is a target of the chancellor’s plans. There have been warnings of ‘significant ramifications’ for the MoJ if the proposed 15% budget cut takes effect. The problems of criminal justice cannot be fixed by cutting costs when everyone accepts that more funding is needed if we have a hope of bringing a broken system back from the brink.
For now, court users hope and pray that the MoJ will avoid any more tightening of those already taut purse strings.
Mark Jones is a partner and Alex Curran a senior associate at Payne Hicks Beach, London
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