HMCTS could need ‘several years’ to deal with pandemic backlogs

Constitution Committee report says rule of law is at risk because of delayed hearings, with the most vulnerable people the hardest hit
“Vague”: justice secretary Robert Buckand Aaron Chown/PA Wire/PA Images

By Jim Dunton

30 Mar 2021

HM Courts and Tribunals Service is facing backlogs to criminal and civil court proceedings that will take years to return to pre-pandemic levels but “lacks clear targets” for recovery, members of a House of Lords committee have warned.

A report from the Constitution Committee says that while HMCTS worked hard to adapt court buildings after last year’s first Covid-19 lockdown and opened emergency Nightingale courtrooms at “impressive speed”, the current backlog of cases is still unacceptably high.

The committee said reduced funding for the justice system over the past decade left courts and tribunals in a vulnerable condition going into the pandemic crisis last year. Members said that while court buildings were closed as part of the HMCTS reform programme, repeated delays meant IT systems designed to reduce physical paperwork and pave the way for more remote hearings had not been implemented when the pandemic “suddenly rendered courts reliant on remote technology”.

Peers said Covid-19 has had an uneven impact across HMCTS, with senior courts and those dealing with commercial cases adapting relatively well. But they said lower courts, which deal with the majority of cases and litigants who are most vulnerable, have had a more difficult time.

The report said that between last March and the end of February this year, crown courts processed around 25% fewer cases compared with pre-coronavirus operations. For magistrates’ courts, case-processing levels were 45% lower. 

Peers said the total backlog of criminal cases is now more than 530,000 – 100,000 more than at the start of the pandemic – and is “undermining the rule of law”. They noted that 8,000 people were on remand awaiting trial as of last December, a 28% increase on the previous year. In September, emergency coronavirus regulations came into force extending the maximum period that can be spent in prison on remand from six months to eight months.

“It may take several years before the backlog of criminal, family and employment cases returns to pre-pandemic levels,” peers said. “The human cost of the backlog can be measured in part by defendants being held on remand in prison for longer, litigants and victims waiting longer for justice, and a greater likelihood of evidence being lost or forgotten during the lengthier waits for a hearing.”

The report applauded justice secretary Robert Buckland’s pledge that the backlog of court cases will be tackled. But peers said Buckland’s reference to returning case loads to “normal levels” was not accompanied by a timescale, making it impossible to assess whether £150m in emergency funding allocated to HMCTS will be enough to address the issue. 

Committee chair Baroness Ann Taylor said HMCTS staff have made a “monumental effort” to keep the justice system functioning in recent months, but that applauding their hard work should not obscure the scale of the challenges courts continue to face.

“The courts system was not well prepared for disruption on the scale caused by the pandemic. Courts funding had fallen significantly in real terms over the preceding decade and a programme to modernise court technology was struggling to deliver the improvements needed,” she said.

“There is much work to be done to address the constitutional consequences of the pandemic for the courts. The government needs to renew its vision and increase the funding to achieve it. For justice to be done, and be seen to be done, considerable new effort and investment is required.”

The report said peers are concerned that HMCTS does not have “clear targets or deadlines for the recovery of service in the criminal courts” and called on the government to set out detailed plans for the backlog of criminal, family and employment cases – including a timeline for implementation.

Peers also called on the government to continue investment in developing technology for remote hearings, and guidance to support it, taking lessons from its use during the pandemic.

“There should be an ongoing process of engaging with researchers and the legal sector to ensure that access to justice is secured via remote hearings,” they said.

However, they added that no changes introduced during the pandemic should be regarded as “irreversible” where they risk undermining access to justice, open justice or consistency in the application of the law. 

A Ministry of Justice spokesperson acknowledged that the number of cases being dealt with through the courts is currently below pre-Covid levels,  but said crown courts are seeing an increase in the number of trials listed.

They added that more than 20,000 hearings using remote technology are now taking place every week,  up from 550 in March 2020.

“The committee rightly recognises the huge efforts of courts staff and professionals to keep the justice system moving in the face of a global pandemic – scores of Nightingale courtrooms have been opened to boost capacity and remote hearings have increased by 4,000%,” they said.

“As a result of this hard work, the number of outstanding magistrates’ cases has fallen by 50,000 since last summer and more jury trials are being heard every week.

“Major challenges remain which is why the government is spending £450m to deliver speedier justice and drive this recovery further.”

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