The Lord Chief Justice told MPs yesterday that he is “extremely concerned” that the backlogs that have grown across the justice system since March should not be “viewed by anybody as the new normal”.
Lord Burnett said new funding, court staff and judges were all needed if the justice system was going to tackle the backlogs and increase the volume of work.
Speaking to the justice select committee yesterday, he said that “rather than the traditional approach to funding, which is looking at what you’ve spent this year and nudge it up a bit or dare I say it, nudge it down a bit”, there should be a “realistic assessment in every jurisdiction” of the work likely to come in and “a clear understanding of the additional backlogs”.
Lord Burnett said that the year from October 2019 to October 2020 had seen outstanding public law family cases increase by 17% and private law cases by 22%.
In the Crown Courts, the increase in the backlog from 40,000 cases in March to around 50,000 was “very substantial indeed”.
He said that the justice system as a whole would continue with a mix of face-to-face hearings, fully online hearings and hybrid hearings, with “flexibility and adaptability” the key to keeping things going.
He rejected a suggestion from committee chair Bob Neill that Crown Court judges were “listing everything” so that lawyers had to attend face-to-face.
“We have hunted high and low for more than anecdotal evidence, and it is very hard to find,” Lord Burnett said.
The Lord Chief Justice said that, back in March, court technology was “pretty dreadful” in many cases, with most judges lacking even telephones which could be used for conference calls.
Since then, use of technology had become “easier and better”, though the “overarching problem” remained that even in the Royal Courts of Justice, it “fails you”.
Far from being a “sliver bullet”, it depended on the “broadband of the weakest link”.
Lord Burnett also said that more court staff would need to be recruited if the courts were going to properly use the Cloud Video Platform (CVP), which was a “good deal better” than Skype, Teams or Zoom.
At the moment, he said judges were having to organise the CVP hearings because there were not enough staff to do it.
“We have got to get the numbers up to support the kind of hearings we want to have. If we increase the volume of work in all jurisdictions, the number of staff will have to follow.”
Lord Burnett said HMCTS was recruiting 1,600 more court staff, but that was “unlikely to be enough”, and the problem of low pay remained, with good people leaving for other government departments.
As far as judges were concerned, there had been a “significant turnaround” in the High Court, following the government decision to improve pensions, but not enough lawyers were applying to become district judges.
On Litigation Futures yesterday, we reported that up to two-thirds of civil hearings will take place face-to-face over the coming months as the caseload increases, with longer operating hours an option for courts if needed.
Earlier in the session, the Lord Chief Justice defended immigration lawyers, recently the subject of attacks from the Prime Minister, Home Secretary and Attorney General.
“Lawyers have got a duty to act fearlessly for their clients, subject always to their overriding professional obligations and duties to the courts.
“They shouldn’t be subject to criticism for doing so. A general attack on the legal profession in my view undermines the rule of law.”
Lord Burnett added: “None of this immunises the conduct of individual lawyers from criticism in appropriate circumstances. Of course not. Only a tiny minority of lawyers cross that line in individual cases.
“Identifiable individual failings, unfortunate though they are, do not begin to justify a general attack upon the integrity of groups of lawyers.”