How is Labour planning to clear the backlog in the courts?

A review by Brian Leveson proposes restricting the right to trial by jury, along with more cautions and a bigger incentive to plead guilty, as John Rentoul explains

Shabana Mahmood, the justice secretary, appointed Brian Leveson, a former leading judge, in December to come up with a plan to tackle the record backlog in the courts.

Leveson has acted quickly – seven months is fast for this kind of review – and claims that his proposals are “the most sweeping transformation of criminal courts in a generation”. His plan will, he says, “transform the justice system into one that delivers swift, proportionate and fair justice”.

Despite record funding for the Crown Court, the review found that “demand for court time continues to outstrip available capacity, causing significant delays for victims, witnesses and defendants”. According to the Ministry of Justice, “the review has concluded that money alone cannot fix the problem, and that radical structural reform is needed”.

That sounds as if Leveson understood his brief from Mahmood, which was to find ways of cutting the backlogs without asking the Treasury for more money.

What is the problem?

Too many cases and not enough court time means that delays get longer. The disruption of coronavirus lockdowns worsened a bad situation, which has failed to get better since. Some of the changes to court procedure during the pandemic, such as the greater use of video, seemed to offer the prospect of speeding up the justice system, but those hopes have not been realised.

Mahmood has secured additional funding for her department, but has had to prioritise the prisons crisis, and in any case she seems to share the Treasury view that it must be possible to run the courts system more effectively on the existing budget.

Leveson appears to agree, but makes the seriousness of the courts backlog clear with five quotations on the cover of his report: “When justice sleeps, justice is cancelled” (Talmud, AD200-400); “To no one will we sell, to no one will we deny, or delay right or justice” (Magna Carta, 1215); “To delay justice is injustice” (William Penn, 1682); “Justice delayed is justice denied” (William Gladstone, 1868); and “Justice too long delayed is justice denied” (Martin Luther King, 1963).

What is in Leveson’s plan?

The four most important proposals are:

• Restricting the right to trial by jury by making it harder to choose a trial in a Crown Court

• A new division of the Crown Court – an intermediate court between magistrates’ courts and Crown Court – with two magistrates and a judge (and no jury) to handle less serious offences

• Increased use of cautions and conditional cautions to divert more cases away from the courts in the first place

• Normal sentences reduced by up to 40 per cent for pleading guilty at the first opportunity, increased from 33 per cent, “encouraging quicker resolution”

Leveson comments: “These are not small tweaks but fundamental changes that will seek to make the system fit for the 21st century.”

What is wrong with those?

Mishcon de Reya, the law firm, says it would not be fair to take the right to a jury trial away from anyone currently awaiting trial, so “it is hard to see how this amendment would have any meaningful impact on reducing the current backlog”.

Mishcon adds that it is impossible to avoid the issue of funding: “Making amendments to criminal procedure will not remove the chaos and apathy caused by underresourcing. The overwhelming majority of defendants in Crown Court cases are funded by legal aid. Many of the criminal barristers and solicitors that undertake this type of work are moving away from it because of legitimate issues with the remuneration that it provides.”

What has Leveson done before?

Leveson, then known as Lord Justice Leveson, was appointed in 2011 to chair a public inquiry into “the culture, practices, and ethics of the press” after the phone-hacking scandal.

He published a report in November 2012, which recommended an independent body to replace the Press Complaints Commission, but this required legislation, which David Cameron refused to enact. Action was delayed until “part two” of the inquiry, after criminal prosecutions had taken place, but was then abandoned altogether by Theresa May’s government in 2018.

Leveson must hope for better luck with this report.