Court ‘chaos’ seeing criminals go free, victims’ commissioner warns, as barristers strike

Court “chaos” is resulting in criminals going free, the victims’ commissioner has warned, as barristers move to an all-out strike.

Record backlogs, which are already seeing cases scheduled late in 2024, are expected to be worsened significantly by a continuous walkout starting on Tuesday that will bring most crown court hearings to a halt in England and Wales.

The government has refused to negotiate with the Criminal Bar Association (CBA) through two months of escalating action over the payments for representing people who cannot afford defence lawyers.

Ministry of Justice figures suggest that for every full working week that criminal barristers strike, around 1,300 cases, including 300 trials, will be disrupted.

The victims’ commissioner for England and Wales warned that the mounting “chaos” is causing victims to drop out of cases, adding: “Delay is an enemy of justice.”

Dame Vera Baird QC told The Independent: “There’s no doubt that the criminal justice system is in a parlous state, it’s pretty fractured and the barristers’ strike is something that should just not be happening.

“It should be resolved by the government and it will add enormously to the backlog.”

The watchdog said her office had been receiving reports that many victims “just can’t take” the delays and uncertainty, and are dropping out of cases – causing prosecutions to be halted.

“It’s not just that there is a long wait, but it is also that the chaos around the delays, the backlog, the old nature of the cases, the representation, the listing,” Dame Vera said.

“People are being brought to court expecting to go in the witness box that day, and then being sent away.

“If you are a victim of rape, domestic abuse or serious violence – a traumatised person, afraid of confronting your abuser – you would have lost sleep for weeks beforehand worrying about going to a public forum to speak about this. You will have worked yourself into that position, only to be cast aside and told probably that your case will be another year.”

Dominic Raab, the justice secretary, has accused striking barristers of “holding justice to ransom”, “harming victims” and stopping them from getting justice.

But writing in The Independent, the chief executive of Rape Crisis said the crime had already been effectively “decriminalised” and systemic change was needed.

“Many barristers have expressed to me how heavily the impact weighs on them in taking their strike action, but the responsibility for this disaster of justice does not lie with them,” Jayne Butler said.

“They are boldly taking a stand to push for change and to ensure that the victims, and defendants, of the future have a justice system that is functioning and intact and effective.”

Dame Vera said that people’s “lives are on hold” and that many traumatised victims were not having therapy before court cases because of fears records would be seized by the defence and “turned against them”.

“They need closure and they need justice, they need to get the trauma finished,” she added. “We’ve had people saying, ‘it’s next year, I can’t go through another Christmas with it hanging over me’.”

Almost 60,000 crown court cases are outstanding in England and Wales, with more than a quarter of those already waiting to be heard for more than a year.

The figure has been exacerbated by the barristers’ strike and Covid pandemic, but a National Audit Office report found that it was previously worsened because the government limited the number of “sitting days” when courts can run to save money.

Dame Vera said that because there are set time limits for holding people in custody before trial, cases with defendants in prison were being prioritised over those where they are on bail.

“A big problem about things like domestic violence and rape is that the defendants are very rarely in custody, so their victims’ vulnerability ranks behind the statutory obligation to get somebody in court by the end of their time limit,” she warned.

“There are some very serious offences with long trials deep in the backlog, while some less serious offences with short trials may get fitted in.”

Even before the CBA announced its action, the Ministry of Justice forecast that the backlog would be between 17 and 27 per cent higher than pre-pandemic levels by November 2024, and could be added to further by expected improvements in crime detection by 20,000 extra police officers.

On average, it takes a year and two months between an offence being committed to the completion of a resulting crown court case – and the number is expected to rise.

Dame Vera said the situation was “part and parcel of the gross underfunding of the criminal justice system that has been ongoing for a long time”.

She warned of worsening shortages of lawyers and judges, because of criminal barristers leaving the profession over low pay and working conditions.

“The backlog has been compounded by allowing barristers’ fees to decline to the state where they’re behaving like this – it’s very unusual,” Dame Vera said.

“I am not saying they are behaving in any way irresponsibly. It took two-and-a-half years for the review [of legal aid], they haven’t had pay increases for well over a decade. They have lobbied and campaigned and done everything reasonable and realistic and they have been forced into this position.

“The government needs to resolve this and it needs to resolve it now. I don’t level criticism at all, it is awful for victims that there are going to be massive delays and it is the government’s responsibility to stop them.”

A draft Victims’ Bill that aims to strengthen rights and improve treatment throughout the criminal justice system is under consultation, but Dame Vera warned that it contained “nothing that will help” with the dire situation created by court delays.

The Ministry of Justice said it had fast-tracked the law for a 15 per cent criminal aid rise that will apply to new cases from 30 September, and that applying the increase to current cases would “cost a disproportionate amount of taxpayers’ money” and require changes to how fees are paid.

A spokesperson added: “This government is investing a record £46m into victim support funding over the next three years and introducing a Victims’ Law to ensure they get the support they deserve.

“We had brought the pandemic-induced backlog down by around 2,000 cases before strike action began to undermine this progress. The action comes despite the generous fee rise we are making that will see the typical criminal barrister earn £7,000 more a year.”