Burnett: “I can’t magic up lawyers to help reduce Crown Court backlog”

Burnett: Legal profession is more deep-seated problem

It will be “very difficult” for the Crown Court to achieve the government’s target of reducing the backlog to 53,000 cases by 2025, the Lord Chief Justice has warned MPs.

Lord Burnett told the justice select committee to expect only “gentle reductions” in the current backlog of 63,000 cases over the next few years, partly because he could not “flick a switch and magic up hundreds or thousands of criminal lawyers”.

In an evidence session on his annual report, the LCJ said that, when the barristers’ strike began in April, the Crown Court backlog stood at around 61,000, compared with the pre-Covid total of 40,350.

He said the two most important reasons for it were constraints on judicial resources and the availability of lawyers to conduct cases.

The system took a “significant hit” in the most recent recruitment round for salaried Crown Court judges, which fell short by 16 judges.

Lord Burnett said he had responded by using statutory powers to enable district judges who sat in the magistrates’ courts to sit in the Crown Court, authorising retired Crown Court judges to sit again and inviting deputy High Court judges from the King’s Bench Division to sit in crime if they wished.

The legal profession was a “more deep-seated problem”, with a “depleted defence legal community” in particular.

“Cases are having to be stood out or adjourned on the day of trial because one side or another has no lawyer,” he explained. “It’s not possible to flick a switch and magic up hundreds or thousands of criminal lawyers. The problem may be with us for some time.”

Lord Burnett said that, despite the size of the backlog, the volume of cases going into the Crown Court was 10-15% lower than it had been pre-Covid.

He predicted that the courts would struggle to cope if the volume increased, causing him “concern, verging on worry”.

He said it would “very difficult” for the Crown Court to reduce its backlog to the government’s target of 53,000 by March 2025.

However, he expected the doubling of magistrates’ sentencing powers from six months to a year to produce a “slight diminution” in the volume of either-way cases going to the Crown Court.

Lord Burnett said that, geographically, the biggest problems for the judiciary were in the Crown Court and district bench in London and the South East, with “significant problems” in parts of the Midlands.

Increasing salaries through London weighting was only possible for district and tribunal judges, and the amount was “much smaller” than for civil servants.

Lord Burnett said the Ministry of Justice was carrying out a “light touch review” of the Common Platform for criminal cases, currently the subject of a strike by the PCS union.

He explained that the platform had made it “much more difficult in many cases” for judicial advisers in the magistrates’ court and clerks in the Crown Court to record the results of cases.

Lord Burnett also revealed that there would soon be “a short statement of behaviour expected of judges” in the wake of concerns about judicial bullying of lawyers.

This will be backed up by “bespoke training to all our leadership judges in how to avoid, particularly inadvertent, inappropriate behaviour — which can be corrosive even when people don’t fully appreciate it”.

In his recent annual report, Lord Burnett said he had “commissioned qualitative work to determine the nature of any inappropriate behaviour within the judiciary as a response to the limited number of reports received”.

This identified “many positive aspects of the existing culture that can be built on”, including “inclusive working practices” initiated by leadership judges.

“However, there were also examples of behaviour that amounted to bullying, harassment or discrimination, as well as examples of behaviour that would not be classed as bullying but could nonetheless have had an adverse impact on those who experienced it.”

Lord Burnett told MPs that “unlike many organisations, we set out to find out about this ourselves”.

“We asked questions which we didn’t know the answer to — something as an advocate we were always taught not to do — but it was important to learn whether we had problems of the sort that other organisations have.

I hope that they are fewer than in many other organisations but it would be folly to pretend that we don’t have some problems, and we are taking immediate steps to do what we can to mitigate those problems.”

The LCJ said that, as with the criminal courts, the biggest problems for the county courts were in London and the South East, with people “taking a long time to get a hearing”, although the online money claims service had been a “great success”.

On private law family cases, he said a new approach, involving “intensive engagement at the beginning”, was being piloted at courts in Dorset and North Wales, and could be extended elsewhere.

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