Table of contents
DOI: https://doi.org/10.58248/HS90
Court capacity and backlogs
Contributors to our horizon scan in March 2024 highlighted the issue of significant capacity pressures and backlogs across courts and tribunals (CBP 8372):
- There has been extensive Parliamentary[1] and external scrutiny of the criminal court backlog,[2],[3] particularly in Crown Court,[4] as serious cases become more complex.[5] In 2024, the National Audit Office found the government’s ability to reduce the Crown Court backlog to 53,000 cases by 2025 was unachievable, partly because of limited prison places.[6] As of June 2024, government statistics on criminal court backlogs were unavailable because of ‘concerns over the quality of key data inputs’.[7] As of November 2024, the Ministry of Justice has not stated when reliable data will be published.[8]
- Ministry of Justice statistics show delays in the Family Court in cases affecting children.[9] In 2024, the Family Division President expressed concerns that few child protection cases are resolved on time.[10],[11]
- The First Tier Immigration Tribunal experienced a 264% increase in appeals against refused asylum applications from 8,019 cases in 2022/23, to 29,172 in 2023/24.[12] 27,133 appeals were outstanding in March 2024.
- Other parts of the civil legal system experiencing continuing delays include probate (wills and inheritance),[13],[14] conveyancing (property sales/transfers),[15] and in the County Court, with small claims (including commercial and personal injury claims) taking an average of 51.6 weeks to complete.[16]
Researchers have identified that the backlog of cases in the criminal courts, exacerbated by the pandemic, has led to changed court processes to respond to immediate pressures, without having capacity to account for longer term reforms.[17] Research in 2024 found fundamental effects on victims’ access to justice, with long waits leaving them “living in limbo” before trial.[18]
In 2024, the government announced measures aimed at reducing delays in the courts, including allowing Associate-Prosecutors at the Crown Prosecution Service (CPS) to work on prosecutions in the Victims, Courts and Public Protection Bill[19] and increasing the sentencing powers of magistrates.[20] The Law Society has called for improvements in the court estate, increased availability of judges and court staff, and for criminal legal aid to increase by 15%.[21],[22]
The Ministry of Justice Digital Strategy to 2025 also included ambitions to achieve “quicker and simpler” processes for court users and staff.[23],[24] Since 2016, a government programme has introduced more technology to the courts service with the aim of making the system “more straightforward, accessible and efficient”.[25]
Court service digitisation is evolving.[26] For example, IBM has identified opportunities to use digital data analysis to predict case flow through the judicial system with scope for automation and AI in electronic case management.[27] Big data analysis may also enable research evaluation and innovation.[28],[29] However, progress in introducing technology is uneven, with evidence of technical implementation problems.1,[30],[31] The scope, expertise, and methods for changing capacity1 and big data-related projects across the justice system is unknown.[32]
Police and CPS staff also require training to work efficiently with digital data as evidence.[33],[34] Researchers have identified a lack of knowledge of criminal digital forensics outside of specialist services, leading to a backlog of devices needing examination, and an inability to assess evidence.[35]
Other uncertainties and unknowns include:
- The implementation of criminal justice policies following the 2024 election is unknown, particularly the approach the Victims, Courts and Public Protection Bill will take to reducing the criminal court backlog.
- There are Family Court projects, seeking to reduce the time taken in cases affecting children, which are yet to be fully evaluated.[36],[37] There may be further debate over the role that out-of-court dispute resolution should play in family law.[38]
- Research shows wider pressures on access to justice in adjacent parts of the criminal justice process. For example, the Law Society reported a 26% fall between 2017 and 2023 in the number of duty solicitors, who provide representation at police stations.[39] Other analysis for England and Wales has found patchy coverage of legal aid funding for crime, housing or family law.[40],[41]
Key questions for Parliament include:
- What approaches should government consider to resolve court delays affecting access to justice?
- To what extent can digital innovation be used to support and reform the justice system?
The constitutional role of courts and relationship with parliament
The horizon scan highlighted issues affecting the relationship between courts and parliament.
In particular, the use of “ouster clauses” in legislation prevent court challenges of government decisions through judicial review.[42] The Judicial Review and Courts Act 2022 introduced an ouster clause preventing judicial review of decisions to refuse permission to appeal to the Upper Tribunal.[43] In 2023, the High Court determined that the clause clearly limited the possibility of judicial review.[44] The court could not ignore parliament’s will as expressed in legislation as the “ultimate source” of law.[45]
There has been extensive debate about the constitutional implications of limitations on court review of government decisions.[46],[47] In 2019, former Supreme Court Justice, Lord Sumption, argued that the failure of parliament to engage with divisive issues meant that courts are required to make controversial decisions through judicial review.[48]
In October 2024, the Attorney-General acknowledged these tensions, stating that “When Government invites Parliament to breach international law, or oust the jurisdiction of the courts, it not only undermines the rule of law, but also the mutual respect that historically has been one of the great strengths of our constitution.”[49]
Key questions for Parliament include:
- Do the constitutional arrangements between the government, parliament and the courts need to be scrutinised and/or reformed?
Dealing with miscarriages of justice
The horizon scan highlighted concerns about the system for dealing with appeals and potential miscarriages of justice.
The Post Office Horizon IT Inquiry, which finishes hearings in December 2024, will consider the challenges sub-postmasters faced in obtaining redress for miscarriages of justice.[50] This, and other identified miscarriages of justice, have raised broader questions about how well the criminal justice system manages appeals against conviction.[51]
To appeal against a criminal conviction to the Court of Appeal in England and Wales and Northern Ireland, the conviction must be ‘unsafe’ under the Criminal Appeal Act 1995.[52] Researchers have criticised the interpretation of ‘unsafe’ as too narrow (requiring either procedural error at trial or fresh evidence to be successful) and questioned whether the Supreme Court is hearing sufficient criminal appeals.[53] The Law Commission is due to report in 2025 on its review of the law of criminal appeals in England and Wales. [54]
The Criminal Cases Review Commission (CCRC) is responsible for investigating alleged miscarriages of justice in England and Wales. To refer a case to the Court of Appeal, it applies a test requiring a ‘real possibility’ of success on appeal.[55] By contrast, the Scottish Criminal Cases Review Commission refers cases if a miscarriage of justice may have occurred, and it is in the interests of justice.[56],[57]
In 2021, a Miscarriages of Justice APPG inquiry into the CCRC made several recommendations, including a review of the ‘real possibility’ of success test,[58] and that CCRC should be “bolder” in its referrals, echoing a 2015 Justice Committee report.[59] In response, the CCRC welcomed the call for an independent review.[60] In 2024, the Independent Review of Andrew Malkinson’s wrongful conviction for rape recommended that the CCRC needed resources and training to respond to the volume of applications and evidence it receives.35,[61]
In assessing compensation for someone wrongly convicted, the Criminal Justice Act 1988, requires new facts to show beyond reasonable doubt that the person did not commit the offence.[62] Researchers have criticised this restriction on access to state compensation.[63] The impact of miscarriage of justice on the convicted person can be severe.[64] The Supreme Court and the European Court of Human Rights have found that the test for compensation is not in breach of Article 6(2) ECHR, the right to a fair trial, because it did not affect the presumption of innocence.[65],[66]
Key questions for Parliament include:
- How should the criminal appeals system be reformed? Should government reconsider compensation arrangements following a miscarriage of justice?
References
[1] Justice Committee (2022). Court Capacity UK Parliament
[2] The Secret Barrister (2018). Stories of the law and how it’s broken Picador
[3] Financial Times (2024). How the English courts reached breaking point
[4] Public Accounts Committee (2021). Reducing the backlog in the criminal courts
[5] Institute for Government (2023). Performance tracker 2023: Criminal courts
[6] National Audit Office (2024). Ambition to reduce Crown Court backlog no longer achievable
[7] Ministry of Justice (2024). Statement available at: Access to justice
[8] Law Society Gazette (2024). Court stats? 404 error page. Just keep waiting
[9] Ministry of Justice (2024). Family Court Statistics Quarterly: April-June 2024
[10] McFarlane, A. (2024). A view from the President’s Chambers: July 2024
[11] Statutory time limit of 26 weeks under section 32(1), Children Act 1989, as amended by Children and Families Act 2014.
[12] Ministry of Justice (2024). Tribunal Statistics Quarterly: January-March 2024
[13] Justice Committee (2024). Probate UK Parliament
[14] Law Society (2024). Decline in probate delays is a good first step
[15] Society of Licensed Conveyancers (2024). Position paper in respect of the continuing backlogs at HM Land Registry
[16] Justice Committee (2024). Work of the County Court UK Parliament
[17] Godfrey, B. et al. (2022) The Crisis in the Courts: Before and Beyond Covid, The British Journal of Criminology, vol.62, p.1036
[18] Moroz, A. and Dinisman, T. (2024). Suffering for justice: Sexual violence victim-survivors’ experiences of going to court and cross-examination’ Victim Support
[19] Prime Minister’s Office (2024). King’s Speech, Background Briefing
[20] Ministry of Justice (2024). Increased sentencing powers for magistrates to address prisons crisis
[21] Law Society of England and Wales. Back our criminal justice campaign Accessed November 2024
[22] Courts and Tribunals Judiciary (2024). The King (on the application of the Law Society of England and Wales) v The Lord Chancellor [2024] EWHC 155 (Admin)
[23] Ministry of Justice,(2022). Digital Strategy to 2025
[24] Ministry of Justice. Justice in numbers Accessed November 2024
[25] HM Courts & Tribunals Service (2024). The HMCTS Reform Programme
[26] Legal Education Foundation (2019). Digital Justice: HMCTS data strategy and delivering access to justice
[27] Schindler, E. (2024). Judicial systems are turning to AI to help manage vast quantities of data and expedite case resolution IBM
[28] Sander, R. and Helland, E. (2023). Case management reform: The promise of big data Judicature, Vol.107, No. 1
[29] Vargas Pérez, C. and Peñaloza Figueroa, J. (2017). Big data and the demand for court and legal services, European Journal of Interdisciplinary Studies, Vol.9 (1).
[30] Vos, G. (2023). Speech by the Master of the Rolls: Justice in the Digital Age
[31] Law Society of England and Wales (2023). Online court services: delivering a more efficient digital justice system
[32] ADR UK, UKRI and ESRC Administrative Data Research UK (2022). Data first: Harnessing the potential of linked administrative data for the justice system
[33] HM Crown Prosecution Service Inspectorate and HM Inspector of Constabulary (2016). Delivering justice in a digital age: A joint inspection of digital case preparation and presentation in the criminal justice system
[34] Marshall, P. et al. (2021). Recommendations for the probity of computer evidence Digital Evidence and Electronic Signature Law Review, Volume 18: 2021
[35] Griffiths, C. et al. (2024). The Northumbria University Digital Forensics Project. Digital Forensics within the Criminal Justice System – Use, Effectiveness and Impact Northumbria University report
[36] Justice.gov.uk. Family Procedure Rules, Practice Direction 12A, ‘Care, Supervision and Other Part 4 Proceedings: Guide to Case Management’, (Public Law Outline)
[37] Domestic Abuse Commissioner (2023). The Family Court and domestic abuse: achieving cultural change
[38] Law Society of England and Wales (2024). Mandatory mediation abandoned for separating couples
[39] Law Society of England and Wales (2024). Criminal duty solicitors: a growing crisis
[40] LexisNexis. The LexisNexis legal aid deserts report Accessed November 2024
[41] BBC News (2023). A day in the life of court-hopping criminal solicitor
[42] Anderson, D. (2024). Writing a constitution, Public Law, Forthcoming (as of November 2024)
[43] Section 2, Judicial Review and Courts Act 2022, amending section 11A,Tribunal, Courts and Enforcement Act 2007.
[44] R. (on the application of Oceana) v Upper Tribunal (Immigration and Asylum Chamber) [2023] EWHC 791 (Admin).
[45] R. (on the application of Oceana) v Upper Tribunal (Immigration and Asylum Chamber) [2023] EWHC 791 (Admin) at [52].
[46] Fasel, R. (2024). Ouster clauses and the silent constitutional crisis UK Constitutional Law Association
[47] Hooper, H.J. (2023), ‘No superior form of law? R. (Oceana) v Upper Tribunal (September 1 2023). Public Law, forthcoming
[48] J Sumption, (2019), Trials of the state: Law and the decline of politics, (Profile Books)
[49] Attorney-General, Lord Hermer KC, (2024). Attorney General’s 2024 Bingham Lecture on the rule of law
[50] Post Office Horizon IT Inquiry (2024). ‘Support, representation and redress for Sub-Postmasters, Access to Justice, question 167 Completed list of issues
[51] Criminal Cases Review Commission (2024). Independent review by Chris Henley KC of the CCRC’s handling of the Andrew Malkinson case
[52] Section 2(1), Criminal Appeal Act 1995
[53] Ormerod, D. and Quirk, H. (2022). Reforming criminal appeals, Criminal Law Review, vol.10
[54] Law Commission. Criminal Appeals Accessed November 2024
[55] Section 13(1), Criminal Appeal Act 1995
[56] Section 194C, Criminal Procedure (Scotland) Act 1995
[57] Callander, I. and Leverick, F. (2019). The Scottish Criminal Cases Review Commission and the Appeal Court at 20 years: Relationship status – it’s complicated? Juridical Review, vol.4
[58] All-Party Parliamentary Group on Miscarriages of Justice Westminster Commission on Miscarriages of Justice (2021). In the interest of justice: An inquiry into the Criminal Cases Review Commission
[59] Justice Committee (2015). Criminal Cases Review Commission UK Parliament
[60] Criminal Cases Review Commission (2021). Official Response to the Westminster Commission Response
[61] As of November 2024, Mr Malkinson’s conviction was the subject of an independent inquiry, commissioned in 2023.
[62] Section 133(1ZA), Criminal Justice Act 1988, as amended by the Anti-Social Behaviour, Crime and Policing Act 2014
[63] Quirk, H. (2020). Compensation for miscarriages of justice: Degrees of innocence, The Cambridge Law Journal, vol.79, Issue 1
[64] The Guardian (2024). UK system for wrongful conviction payouts is lawful, European court rules
[65] The Supreme Court (2019). R (on the application of Nealon) v Secretary of State for Justice [2019] UKSC 2.
[66] European Court of Human Rights (2023). Nealon and Hallam v United Kingdom App.Nos. 32483/19 and 35049/19
Photo by: Joe Dunckley via Flickr
