Few would argue that the criminal justice system is not in crisis, with huge backlogs in the courts. Here are some ideas on how to fix it.
Invest in legal aid and the courts
Cash may seem like the simplistic option, but when the cuts to criminal legal aid have been so huge – 43% in real terms since 2004-05, according to a 2021 report – and led to a shortage of practitioners, it is no surprise that lawyers’ bodies have been united in demanding an immediate and substantial increase in fees.
More than 1,400 duty solicitors (a quarter of the total), who provide free independent legal advice to people at police stations or courts, have left practice since 2017. A recent government-commissioned report said there were insufficient criminal barristers for the number of cases.
Last year, 1,436 trials (one in 20) were cancelled in the crown courts on the day planned because of a lack of counsel, compared with 71 in 2019, according to the National Audit Office.
If fees remain low compared with other areas of practice, lawyers will continue to choose them instead of crime. Sam Townend, head of the Bar Council, has said the government’s objectives to reduce violent crime and halve violence against women and girls “can only be achieved if we have appropriately remunerated barristers and solicitors working in a properly funded legal system”.
The courts are also in desperate need of investment, with crumbing buildings and not enough judges and staff.
Reverse sentence inflation
In September, the four surviving former lords chief justice of England and Wales (the most senior role in the judiciary) plus an ex-head of criminal justice put their names to a paper by the Howard League for Penal Reform, calling for a fundamental shift in sentencing policy.
The report said sentencing inflation had been driven by governments legislating to impose minimum sentences where crimes, typically murder, are committed in aggravating circumstances and the result was to raise the level of sentences imposed across the board.
The former judges said sentencing inflation was the primary cause of prison overcrowding, which was hampering rehabilitation, and urged “a return to more modest proportionate sentences across the board”.
At the lower end of the offending spectrum, sentencing inflation can push cases that would otherwise be heard by magistrates into the crown courts, increasing the burden on judges. Magistrates can only hand out maximum sentences of a year (increased from six months to help tackle the crown courts’ backlog).
The government has launched a sentencing review, chaired by the former Conservative justice minister David Gauke, who has indicated that sentences for some serious crimes may be reduced.
Bring back a courts inspectorate
The closure of Her Majesty’s Inspectorate of Court Administration was announced in 2009 and it ceased operations two years later. In 2022, the Commons justice committee recommended it be re-established.
While the government told the committee that the oversight provided by the existing criminal justice inspectorates – including HM Crown Prosecution Service Inspectorate and HM Inspectorate of Probation – were sufficient, the committee heard evidence from others including the Criminal Bar Association, who disagreed.
The then chief of the CPS inspectorate said it could not delve into important issues, such as court listings, because they were outside its scope.
The committee concluded: “A courts’ inspectorate, which is independent from government, could make a substantial difference to the accountability and transparency of the justice system.
“It could use inspections and the promised improvements to the quality of the data to make recommendations that can inform policy and guidance in both criminal and civil justice.”
Adopt a holistic defence model
Holistic defence is a less discussed remedy than others on this list, but it has been backed by Helena Kennedy KC, one of the UK’s most renowned criminal lawyers and a Labour peer, and has had impressive results in the US, where it has been pioneered by the Bronx Defenders Service in New York.
Under such a model, defendants not only engage with their legal aid solicitor but also get access to essential support services such as mental health intervention, substance abuse counselling, housing and benefits advice, and assistance with disabilities, parenting, caregiving, immigration or employment.
Evaluations from the US have found that it results in fewer incarceration days for defendants without compromising public safety, leading to direct cost savings in terms of prison maintenance, administration, food and medical expenses.
Commons Law, a community interest company, has called for a publicly funded pilot project in London to trial a holistic defence regional hub.
The 2021 government-commissioned independent review of criminal legal aid gave prominence to the concept promoted by Commons Law, stating: “There are many cases where the individual concerned has many problems, which result in criminal behaviour, but simply dealing with the defence to the crime does not tackle the underlying issues.”
Fund data and technology
Like cash, better data is another classic boilerplate solution for an ailing public service. But it is widely accepted that there is a lack of data about the justice system, which makes tackling problems such as the backlog much more difficult.
Dr Natalie Byrom, who helped to develop a digital strategy for HM Courts and Tribunal Service in 2018, has said the justice system is lagging behind areas such as education and health in collecting and using data to understand performance and impact.
Areas of the justice system where there are data gaps include the length of time people are spending in custody pending trial or sentence and the reasons they are not bailed.
Byrom has said the justice system has failed to collect basic data about those involved in it, the outcomes of the decisions it makes and their long-term impact.
The 2017 Lammy review said data on racial and religious disparities in the justice system was not always collected and, when it was, it was not always shared, preventing outside scrutiny and analysis.
The Law Society has said: “Better data is needed on the effect of remote hearings and the experience of claimants who represent themselves.
“Without this data, policy is being made in the dark. Better data will help show where investment is needed and what changes are working.”
• The headline of this article was amended on 16 December 2024 to refer to England and Wales, rather than the UK.
