Where have all the judges gone? Record number of trials delayed over staffing crisis

A record number of trials, including for crimes involving rape and violence, have been delayed at the last minute because no judge can be found to hear them, The Independent can reveal.

The issue has been fuelled by a shortage of upcoming barristers to replace experienced judges who are retiring or leaving the circuit – exacerbating the unprecedented backlog in Britain’s crisis-stricken courts.

The postponements, some of which could last for months, will have seen victims, witnesses, lawyers and defendants – many brought from prison – waiting needlessly in courtrooms only to be told that no judge is available.

It is the latest shocking indictment of the state of Britain’s justice system following a string of revelations by The Independent, including our report of how prisoners are being forced to wait five years behind bars before trial as the number on remand soars to a record high.

Senior MPs, former judges and campaigners have hit out at the “troubling” delays, saying they reflect a “perfect storm” of underfunding in the judiciary caused by “years of neglect”. One warned that it is not possible to “magic full-time circuit judges out of thin air”.

Criticising decades of underfunding, Tory justice committee chair Sir Bob Neill said: “We’ve tried to do criminal justice on the cheap, and you can’t – and that’s why the chickens are coming home to roost.”

Law Society president Nick Emmerson added: “The lack of judges and lawyers has been caused by years of neglect of the criminal justice system, and can’t be rectified overnight.”

And one lawyer added: “This gold-star criminal justice system that was world-renowned has definitely more than cracked.”

According to analysis by the Criminal Bar Association and The Independent, a record 51 trials – 10 of which were for rape and 19 for violence – were delayed by judge shortages between April and June, more than double the quarterly average of 21 in the five years prior to 2020, when the onset of the Covid pandemic prevented the courts from sitting in the usual way.

Meanwhile, nearly a third of the 100 crown court trials without a judge in the first six months of 2023 involved sexual offences, analysis of the official figures found. This is more than double the six-month average in the years prior to 2020.

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In a bid to plug the gaps, the government raised judges’ retirement age in 2021 for the first time in decades – from 70 to 75 – and also brought judges out of retirement, with nearly 250 pensioners sitting as of April. It has also relaxed the rules around the types of judge that can preside over criminal trials.

But there are still considerably fewer judges than at the start of the last decade, not all of whom can oversee serious criminal cases. Meanwhile, more cases are entering the courts – including more involving complex allegations such as sexual offences, which take longer to prosecute and require experienced judges.

Giving evidence to MPs in November, Ian Burnett, who was then the lord chief justice of England and Wales, said the judiciary had taken “certainly every step that we can think of to try to mitigate the problem of reduced judicial capacity” – an “acute problem” that he warned was a major barrier to tackling the backlog.

Lamenting that a “disappointing” annual recruitment drive for 45 crown court judges had produced only 29 successful applicants, Lord Burnett added: “Given each judge sits about 200 days a year, that is quite a significant hit on capacity, and also a significant hit amongst the more experienced judges who can do the most difficult cases.”

Criticising the “appalling” number of rape trials affected by the lack of judges, Peter Collier KC – who sat as a judge at Leeds Crown Court for 11 years until 2018 – said that adjourning rape trials on the day would “never” have happened during his tenure, “other than because some key witness had died, or something absolutely dramatic”.

“I can remember, once, a rape case got adjourned, and there were questions asked at the highest level – the CPS [Crown Prosecution Service] were absolutely spitting tacks. But it happens now all the time. Words fail me, really, because it was so predictable,” he said, writing in The Independent.

According to Mr Collier, the problem dates back to 2010, when the Tory-Lib Dem government began dramatically cutting the number of sitting court days, which have decreased from 110,000 a year to just 86,000 in 2020. The resulting reduction in the size of the criminal bar means that – despite ministers’ efforts to once again increase sitting days – there are now not enough barristers to work on cases and sit as part-time judges.

Mr Collier said: “To them, it all made sense. To us, it made no sense, because the problem was just eventually going to blow up – and has now blown up. There is no way that they can quickly solve this problem that they began to create in 2010.”

In 2021, the government moved to increase the minimum number of days that barristers who also act as recorders – otherwise known as part-time judges – are required to sit each year, from just 15 to 80 days.

“The problem is, those are the same people you need to prosecute or defend the cases,” said Sir Bob. “And because the whole supply pool of experienced criminal lawyers is diminishing, you’ve got the perfect storm.”

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The number of specialist criminal law barristers – those who feed the pool of part-time judges – had fallen to just 207 by 2021, after a drop of nearly a quarter over six years, according to the Criminal Bar Association. That came as their earnings fell by 28 per cent in real terms between 2006 and 2022.

While barristers finally won concessions from the government on legal aid funding after all-out strikes last autumn, experts warn that the new funding still does not go far enough.

Rebecca Upton, a barrister of 23 years with Mountford Chambers, told The Independent last week that three of the four hearings she had scheduled for the following day had been cancelled that lunchtime because the courts don’t have enough courtrooms.

“But they definitely do, it’s just the courtrooms don’t have anyone sitting in them to deal with the cases,” Ms Upton said.

Ms Upton recalled that one court she frequently worked at had previously had 10 courtrooms using 10 circuit judges, and “occasionally you’d have a recorder sitting if one of those judges was on holiday”.

But despite there now being 12 available courtrooms, “due to judicial retirements there are now only six circuit judges there”. This results in a greater reliance on part-time judges, some of whom will not be qualified to hear the most serious cases.

She added: “This gold-star criminal justice system that was world-renowned has definitely more than cracked.”

A Ministry of Justice spokesperson said: “While the overall number of ineffective trials is declining, we are helping to reduce even this further by recruiting more judges, raising the mandatory judicial retirement age, and increasing the number of days fee-paid judges can sit.”

This article was amended on 17 November 2023. It previously stated that part-time judges’ day rates were more costly than their salaried counterparts, which was incorrect. They are paid the pro rata equivalent.