Partner Ernest Aduwa and Solicitor Jessica Sarwat explore the court backlog in Law360

Partner Ernest Aduwa and Solicitor Jessica Sarwat explore how the latest Criminal Court statistics shine a light on the reasons behind the current case backlog across courts.

Ernest and Jessica’s article was published in Law360, 7 May 2024, and can be found here.

It is no secret that the UK courts are struggling, as the case backlog across its Civil, Criminal and Commercial divisions continues to build and practitioners experience lengthy delays across the justice system.

The Criminal Courts quarterly statistics for Q4 2023, released at the end of the March, revealed that the volume of outstanding cases that have been open for a year or more rose to a staggering 18,045. This figure represents 28% of outstanding cases, slightly below the series peak of 29%, and reflects the uphill battle many lawyers are facing in having their cases heard.

Earlier this year, Law Society president Nick Emmerson argued that “decades of cuts and underinvestment” has led to a crisis in the courts, where there simply are not enough judges, lawyers and court staff to deal with this increasing backlog, leading to “unacceptable delays for victims, witnesses and defendants.”

However, these statistics may offer lessons for the Civil and Commercial Courts on how to minimise the impact that lengthy delays can have on proceedings. With statistics for the Civil Courts between October and December 2023 revealing that the mean time taken for small claims and multi/fast track claims to go to trial was 4.3 and 6.9 weeks longer than the same period in 2022, it is evident that the case backlog spans the UK justice system.

In particular, the publication of the Criminal Courts quarterly statistics noted the rollout of Common Platform, a new digital case management system for the magistrates’ and Crown Courts. Designed to streamline data collection, data accessibility and improve the way criminal cases are processed across the Criminal Justice System, the system is intended to eventually replace the existing ‘legacy’ criminal court systems Libra (magistrates’) and XHIBIT (Crown), with a single streamlined system. However, its rollout has been plagued by defects to the detriment of all those involved in the Criminal Courts and wider justice system.

The deployment of Common Platform across Criminal Courts began in September 2020 and was completed in July 2023. The new system is now live at all magistrates’ courts and Crown Courts in England and Wales. All new criminal court cases are now entered onto the Common Platform system, while cases that began prior to that court transitioning to Common Platform will remain on the ‘legacy’ system (i.e. LIBRA or XHIBIT).

Moreover, while the 2020 series low of the volume of outstanding cases was directly attributable to the Covid-19 pandemic – and thus always likely to rise significantly once lockdown ended – other factors have played a key role in the surge in cases as of late.

Receipts into magistrates’ courts rose by 10 percent year on year, driven by a 14 percent rise in receipts for summary motoring offences , adding greatly to the burden on the courts. As a result of the increase, there were over 370,500 outstanding cases at the magistrates’ courts, representing an increase of 7 percent on the previous quarter and only serving to place further stress on already overburdened court system.

This trend was mirrored in the Crown Court system, which also saw a rise of 7 percent in listed cases compared with the previous quarter, representing 7,634 listed trials . The defence or prosecution not being sufficiently prepared for their case accounted for 22 percent of ineffective trials, underlining ongoing issues across the court system which further threaten the efficacy of the criminal justice process. This has a significant impact on access to justice.

Further highlighting the parlous situation for parties in the court system was a failure to reduce median waiting times for cases to be heard, which remained at similar levels to the previous quarter at 41 weeks, and far higher than pre-pandemic levels of just over 25.4 weeks in Q1 2020 .

It is evident that the backlog will take some time to truly clear, with sustained investment and a drive for greater funding and resources needed to better tackle the mountain of ongoing cases.

A specific example of the uphill battle parties face is the listing of non-imprisonable summary only driving offences for trial for 12 months after a not guilty plea has been entered. This is astonishing when considering that Magistrates’ court cases should conclude within three to six months.

As noted by criminal and civil solicitors and barristers across the country, delays in court proceedings have become habitual within the UK legal system in recent years and this is having a catastrophic effect on an already insurmountable backlog throughout the Criminal and Civil courts. Baroness Car, for instance, suggested that such delays could lead to a “vicious circle” in the Criminal Courts, where more individuals are entering non-guilty pleas to “see what happens down the line” .

It is now extremely rare, in some courts, for a hearing to be held within the timeframe we would previously have expected, and this has placed a strain on defendants and claimants awaiting trial. The situation is such that even hearings for applications, rather than trials, can be scheduled many months in the future, which may have the effect of putting the entire case on hold, frustrating progress for all parties.

Early mediation has proved to be an important form of alternative dispute resolution which can avoid the need to progress proceedings through the courts in order to resolve a dispute. As such, this has helped to somewhat ease the growing backlog. Engaging in mediation from the outset is key to reducing the backlog of cases in the Commercial Courts, as it gives the parties the opportunity to work out what the issues are and, if possible, to determine whether those issues can be resolved without the need to engage further in court proceedings.

It is unarguable, however, that lengthy adjournments, sometimes as a result of backlogs in the civil courts, and lengthy waiting times for hearings has had a negative impact on cases in which clients are compelled to wait unnecessarily for the outcome of the case or a particular application. As such, it is vital that the mountain of ongoing cases is tackled in order to streamline what can often be a challenging process.

Without serious reform of the court process and a significant increase in funding for the court system, this unwanted and unwieldy situation will likely persist for years to come, to the detriment of all parties concerned. It is therefore critical that the Civil and Commercial Courts learn from the woes reflected by the Criminal Court quarterly statistics to minimise the impact of lengthy and protracted trials for claimants and streamline legal proceedings across the board.

Learning from the statistics surrounding staggering volume of outstanding cases in the Criminal Courts, stemming from a critical lack of funding and resources, it is crucial that the court backlog crisis is addressed with urgent and effective investment, to clear the overwhelming background of cases and ensure all parties receive swift and true access to justice across the UK legal system.