Lockdown 2021 - Are further delays to Criminal trials inevitable?

7th January 2021 Business Crime

Anyone who has had recent experience of the criminal justice system will be able to testify to the huge backlogs and delays experienced when waiting for a trial to come to Court. Even before the COVID-19 pandemic, the Court had a huge backlog of 39,300 cases in the Crown Court but since the pandemic, this is believed to have increased by at least 36 per cent to 53,318 cases. The pandemic has undoubtedly exacerbated the backlogs in cases and if Courts cannot keep cases moving during this third lockdown then will our system be on the brink of collapse and unable to deliver justice?

On Monday, the Prime Minster announced the third national lockdown since the start of the pandemic. This means all non-essential businesses and services must remain closed until further notice but, for reasons which do not need to be outlined, the Criminal Justice System is deemed essential and Courts are to remain open. Likewise; defendants, witnesses, jurors and legal professionals are permitted to attend Court under the regulations.

The Lord Chief Justice Lord Burnett of Maldon has expressed to judges that “the courts and tribunals must continue to function,” and others have sought to persuade the legal profession that the Courts are Covid secure – something which many legal professionals will tell you is not necessarily the case. However, despite the Courts being able to remain open during the previous two lockdowns (and the intervening periods), they have not been able to run at the capacity they need to in order to keep up with current demands, let alone clearing the backlog which is ever increasing. We are already instructed by clients whose trials are not listed until the middle of 2022 and would anticipate that we are dangerously close to trials being listed for 2023, especially where they are of a complex nature and require a fixture of many months.

What is certain is the delays experienced over recent years will not be decreasing anytime soon. The impact of this will include more defendants experiencing long periods of time in custody on remand whilst potentially maintaining their innocence - which will only add to another crisis of over populated prisons. Further, when a matter finally reaches Court, the defendants and witnesses ability to give evidence will be affected by the passage of time which will undoubtedly diminish their memory of events. However, the suggestion within CPS guidance on dealing with the pandemic is that cases should be reviewed to assess whether or not it is still in the public interest to prosecute the case or is there an alternative solution to resolve the matter. Therefore, this ongoing delays offer a genuine opportunity for defendants to make representations to the CPS to seek to persuade them not to pursue a prosecution against them.

The author of this blog, Amy Shaffron is a Senior Associate in London and can be contacted via Amy.Shaffron@jmw.co.uk.

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Amy Shaffron is a Partner located in London in our Business Crime & Regulation department

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