Here’s why rape and sexual assault victims wait years for their day in court

Although we hear a great deal about the backlog – and references to it having arisen from the pandemic and the barristers’ strike – the recent disclosures about the number of serious cases being adjourned because of the lack of advocates or judges is indicative of the real state that our criminal justice system now finds itself in and how it has got there.

Many of us are not surprised by any of this and have been predicting it since 2010, when the government began to make significant cuts to the funding of the criminal justice system. They did that by cutting the overall number of crown court criminal “sitting days”. Having started to cut the sitting days they continued to do so year by year, steadily at first but more so from 2018 onwards, and so the backlog grew.

However, as the years went by there were other more serious consequences of the reduced sitting days. The volume of work being done day by day reduced. Although the cases coming into the courts all had their initial hearings a fixed number of days after being sent up by the magistrates, and those who pleaded guilty were dealt with straight away, the trials of those cases where people pleaded not guilty began to be pushed further and further back in time.

Leeds Crown Court, where I was resident judge from 2007 to 2018, had 14 courtrooms that could try criminal cases. As in other court centres, a number of those courtrooms were fully occupied dealing with the new cases coming in, the sentencing of the guilty pleas, and the hearing of appeals and other ancillary matters.

It is the days that are left over that are the ones you allocate for trial courts. If they reduce the sitting days it is inevitably the trial courts that you lose, as you have to keep up with the other work. So you might lose up to two courts a week where you could have tried rape cases. That meant that there was less of that level of work for people to do each week and some people decided to move to other work.

When I became resident judge at Leeds Crown Court in 2007, we were able to try all those not guilty pleas (apart from a small number of longer and more complex trials) within four to five months of their arriving at the crown court. That inevitably began to slip back as the sitting days were cut.

My test case for judging the impact of the cuts was a case of a defendant on bail charged with rape, whose case would be likely to take up to a week to try. Those cases began to slip further and further back, and when I retired, we were at 10 to 11 months. I believe that the timeframe is now about 18 months in Leeds. In many courts it is even worse than that.

And now sometimes when that trial date is reached there is either no judge or no advocate and so the case has to be adjourned and it will often be up to another year before a date can be found to give it a fixed date for trial.

That reduced volume of work meant that the total cadre of criminal advocates reduced in size. It is a basic law of economics (some sort of weird variation of Parkinson’s law) that the number of self-employed people will adjust itself to be able to deal with the work available.

As a barrister, if you aren’t working you don’t get paid. As there was less criminal work, so an increasing number of criminal practitioners gave up crime and turned to other, often more lucrative work, such as regulatory law. That also gave them more time for family and leisure.

Research by the Bar Council indicates that this move away from crime was further exacerbated during the pandemic as some practitioners turned to other areas of law not so affected as crime to maintain an income.

So, when the government finally decided that they would put more money into the criminal justice system and remove the cap on sitting days, although the courts began to list more cases, there were insufficient advocates available to do those cases. We began to hear reports that cases were being adjourned because, although phone calls had been made to many sets of barristers’ chambers, there was no one anywhere who was free to come and do that case.

There are about 500 crown court courtrooms across the country, giving a potential capacity of around 125,000 sitting days a year. However even with the removal of the cap they barely get over 100,000 days. The personnel who are needed to do the work in those courts are no longer there. That additional 25,000 days would cater for an additional 5,000 five-day trials a year.

Those who have taken up other types of work have no desire to return to criminal work. And although sets of chambers have begun to recruit newly qualified practitioners who are interested in doing criminal work, it will be many years before they are sufficiently experienced to deal with some of the serious cases for which no advocates are currently available.

As the years went by, there were other knock-on consequences. As judges retired, there were recruitment exercises to replace them. Because of the high standards required of appointees to the circuit bench, it was not always possible to fill the vacancies with suitably qualified candidates.

Of course, the crown courts depend not only on full-time salaried judges but on part-time fee-paid judges, known as recorders, who will provide a number of days each year when they leave their practice as advocates and sit as judges in the crown court. A few of them are authorised to try serious cases such as rapes. But they are also the people who in their advocacy practice would be prosecuting and defending in those serious cases.

The Public Accounts Committee said about this: “The resulting dependence on deploying criminal barristers and solicitors as part-time judges, as well as increasing the workload of part-time judges, to make up shortfall, reduces much-needed capacity within the legal profession to prosecute and defend cases.”

Further, if these recorders become salaried judges they will not necessarily be replaced by new recorders authorised to try serious cases, because some of the middle-ranking people who might have taken those recorder positions are now doing other sorts of work.

All of this is the result of the deliberate cutting of sitting days in order to save money by paying for fewer cases.

They also then needed fewer staff which also saved money, and in my time as a judge we were losing experienced court staff who at the same grade would be paid significantly more in almost any other branch of the civil service than they were being paid in the Courts Service.

None of the advocates and staff can be replaced by announcing that the courts can sit as many days as they have courtroom capacity for. Those courtrooms effectively remain empty as the staff and advocates have gone and found other work to do and have no incentive to return.

It was all so predictable.

Peter Collier KC was resident judge at Leeds Crown Court from 2007 to 2018