The Lord Chief Justice, Lord Burnett, is talking about delays in sex cases, like the one which over three years ruined the life of Lady Nourse.

"Put yourself in the position of a complainant or a defendant waiting years for trial. You don’t know what’s going on for all that time. It’s just deeply damaging to people."

 He is visibly frustrated at such delays, which contributed to what Lady Nourse confessed to The Telegraph was her own sense of "massive injustice".

But they are, he says talking exclusively to The Telegraph, the bitter fruit of a criminal justice system in crisis – not just in the courts, but in the police and at the Crown Prosecution Service (CPS), too.

It is a crisis that has been brewing for a decade, as budget cuts hit staffing and courtrooms and police numbers, and which then exploded during the pandemic, as courts shut down and cases piled up.

Still, says Lord Burnett, "historic sex cases do seem to take a long time to investigate now".

And investigations of more recent rape allegations, he explains, are bogged down by police trawling through endless mobile phone data, like text messages.

"There is a real problem at the moment in interrogating electronic devices."

Lord Justice Edis, now an Appeal Court Judge after a long career in criminal law, says the police resources sucked up in scrutinising electronic devices "are enormous".

"It can take an investigation team months in an individual sex case where there’s only two phones. In a big drug case there may be hundreds of phones; in a terrorism case, there are often hundreds of phones." 

He says fighting this technological problem with technology – using artificial intelligence to scan phones for critical evidence, say – may be the only solution.

Lord Burnett, with an eye to the nearer future, suggests that the Treasury coffers have the answer.

Delays in the system

Such delays in the justice system have serious consequences as suspects, even of serious offences, are allowed to wander free unsupervised.

Since 2017, stretched police forces have increasingly been releasing suspects "under investigation” (RUI) instead of bailing them.

Inevitably, RUI cases, where suspects are let go without condition, get pushed to the bottom of the pile.

Files take longer and longer to get to the CPS. Some suspects are then summoned to court merely by letter, via "postal requisition".

The ramifications can be critical. Last week for example, a man who committed a serious robbery in March 2019 was finally sentenced two years after committing the offence. He had been summoned to court by requisition only in April 2020, a hands-off process which allowed him "to commit another very serious offence in May [2021], which is not a good advertisement for the system," says Edis, who presided over the case. "The CPS needs to be able to keep up, probation need to be able to keep up,” says Lord Burnett.

But, as he admits himself, the courts themselves are struggling to keep up. Outstanding Crown Court cases are up by almost half since Covid-19 struck, from 39,331 to 57,503. And delays were mounting long before the pandemic.

At the end of 2019, according to the Criminal Bar Association (CBA), Crown Court cases took an average of 511 days from "offence to completion", up from 391 in 2010.

Rape cases took an average of almost 1,100 days. Before 2020, the number of trials which have their dates moved (are "stood out" in the jargon) was roughly equal to those "resolved".

In the latest data, for the week ending May 23 this year, 640 trials were moved, twice the 326 resolved. The backlog just gets longer.

The CBA says it is "commonplace for defendants on bail to receive trial dates into the spring of 2023 relating to alleged criminal offences that will have by then taken place four or five years previously".

Such strung-out justice has two obvious consequences. The first is ever more people in jail awaiting trial. At the end of March this year, 8,308 people were on remand, up 26 per cent in a year.

The cost of justice

Figures obtained by the charity Fair Trials at the end of 2020 revealed that some 2,551 of them had been locked up for more than eight months, deprived of liberty before proceedings could determine their innocence or guilt at a cost of almost £41,000 per year.

As the remand population swells, there is, inevitably, less room in jail for convicted prisoners. According to the Ministry of Justice those who have been sentenced number 64,783, down 10 per cent in a year, and the lowest for 15 years.

The second result of delays is more pernicious still – victims get fed up waiting and walk away. In rape cases, for example, 44 per cent of victims walk away, contributing to plummeting numbers of successful prosecutions.

Five years ago, 17.2 per cent of rape allegations to police resulted in a charge; today that is 1.6 per cent. As recently as 2017/18 there were 2,635 convictions for rape; that fell to 1,439 in 2019/20, some 45 per cent fewer.

Earlier this month, the figures prompted Justice Secretary Robert Buckland to apologise to rape victims in the House of Commons: "An apology is due and I give that." 

Delays also heap further proceedings upon the court system as what Edis calls "experienced offenders" plead not guilty, knowing that years might pass before trial and evidence might be lost or forgotten.

Bad Data Archaic and fragmented IT systems mean that keeping tabs on exactly what is happening is by no means easy. The Crown Courts represent the tip of the judicial iceberg, receiving 104,000 cases in 2019.

Magistrates courts, by contrast, received 1.5m cases.

"You might think our system could produce an accurate figure of how many trials there were at the end of every day," says Lord Burnett, "but they can’t. We are using clunking old systems that frankly should be in the Science Museum."

Court’s own Zoom – a ‘godsend’ 

A modernisation programme is underway. And some technology is working well. The courts’ own Zoom, called Cloud Video Platform (CVP) "has been a godsend" says Lord Burnett, enabling a swift resumption of work, if at lower levels, after the pandemic shut courtrooms.

"I’m self-isolating because I’ve been pinged by the NHS app," says Edis, "but I’ve been sitting in the Court of Appeal this morning from home." 

Junior barristers too, are feeling the benefit, no longer rushing around the country to appear in short, procedural meetings.

"Haring round from Haverfordwest to Newcastle to Truro, as I did as a junior," says Lord Burnett. “Those days have gone."

Now the debate is just how much of the court process should be conducted remotely once the pandemic passes. If pre-trial hearings and sentencing can be done over video-link, most agree the trial itself, especially before a jury, should remain in-person.

As a result, even though Crown Courts were dealing with as many cases at the end of 2020 as at the end of 2019, they tended to be the simple hearings, more-easily conducted via CVP.

A recent report by the Lords’ Constitution Committee noted that Covid backlogs "had been reduced by focusing on preliminary, procedural, and sentencing hearings".

Complex jury hearings, meanwhile, keep stacking up.

Funding issues

One key reason has been a reduction in so-called "sitting days" – the number of court days that the government agrees to pay for in an annual "concordat" with the judiciary.

In 2015/16 there were 109,000 sitting days. But this fell by a quarter to 82,300 in 2019/20. According to the Constitution Committee, "Government funding had fallen … by 21 per cent in real terms in less than a decade, legal aid budgets had been radically reduced, court buildings had been closed, sitting days had been reduced, and fewer staff were employed." 

The result was that even with case backlogs lengthening, and judges ready to preside, courtrooms stood empty. Many courts have been closed altogether (162 magistrates courts out of 323 have closed since 2010; for county courts in the same period it is 90 out of 240; 17 family courts out of 185; and eight crown courts out of 92).

Those that remain open, as Lord Burnett puts it, are in "pretty dire condition".

Edis is well aware that pleas for improvements may sound like tone-deaf demands for extra wood panelling and gilding, "but what we want really is the lifts to be working so the elderly and disabled can get to where they have to be, the roof not to leak, the heating systems to work. So that when people come they realise they are coming to a place which takes itself and them seriously." 

According to parliamentary analysis, the number of employees at the HM Courts and Tribunal Service fell 22 per cent between 2010/11 and 2019/20, from 20,777 to 16,264. In the same period legal aid budgets, to fund defendants, have been reduced by nearly 40 per cent.

As the Lady Nourse case shows, says Julian Hayes, a lawyer who has worked on many high profile criminal cases, "even if you’re a law abiding citizen you can quite easily get involved in the justice system." 

Many defendants, like Lady Nourse, end up beggaring themselves to prove their innocence.

"It’s not fair," says Hayes. Rates for prosecutors too have stalled. "The people who will be prosecuting the heavy terrorist trials in 20 years’ time are just now starting off," says Edis. "They are paid buttons and the result is many won’t be there in 20 years’ time to prosecute those cases." 

‘Red hot’ – for now

For now, says the Lord Chief Justice, the courts are running "red hot" after a funding deal agreed with Buckland to increase sitting days this year and next.

After that there are no guarantees.

Similarly, some 31 “Nightingale” Courts, opened to address the backlog during the pandemic, are also operating, but many were set up in venues closed during lockdown which are likely soon to be reclaimed by their usual occupants.

Perhaps most dramatically, every part of the justice system has come under such significant strain that from charge to court to conviction, the amount of crime processed no longer reflects what is happening on the streets, but merely the resources available to deal with it.

"If the defendant is convicted and sent to prison, a prison cell has to be found for that defendant," says Edis. The reduction in sitting days, then, has become a way of preventing costs rippling down from the courts to prisons.

Lighter sentences

Many sentences, too, have got lighter.

In 2020, the average sentence for violence to the person fell 20 per cent to 19 months. Just as courts sitting less send fewer criminals to prison, dwindling police forces – whose headcount fell 20,000 over the last decade – have inevitably sent fewer suspects to court.

"Prosecution volumes tumbled as an inevitable consequence of savage cuts to police and CPS budgets, meaning ever fewer police reported crimes were being investigated on time let alone charged," says James Mulholland QC, chair of the Criminal Bar Association. "The charging rate for all police-reported crime more than halved in under five years from over 15 per cent in 2015 to barely over seven per cent in 2020."

As a result, the number of criminal cases dealt with at the Crown Court has fallen from 152,791 in 2010 to just 99,830 in 2018.

"There was a very substantial reduction in the volume of criminal work coming into the courts," says Lord Burnett. "But what was so striking about it was that the volume of crime actually being committed wasn’t substantially reducing." 

It was a cycle: fewer police led to fewer charges and fewer prosecutions, so there were fewer cases, so the court budget was reduced, and so on.

Now, however, plans are afoot to reverse at least two parts of that, with the recruitment of 20,000 new police by 2023 and a £4bn prison building programme to provide 18,000 extra cell places.

Who will send them there? It is a question that worries the Lord Chief Justice.

“I’m nervous about an increase in work coming in which could make life more difficult,” he says.

Some solutions

One option is for magistrates, volunteers who deal with the vast bulk of cases, to take some of the strain. Bev Higgs, Chief Executive of the Magistrates Association, would like to see their numbers increased from 13,100 now working to 16,000, and an increase in their sentencing powers from six to 12 months.

Another option, more controversial, is to reduce, or even scrap, jury trials. Lord Burnett thinks "an opportunity was missed last year," at the beginning of the pandemic, "to introduce a temporary reduction in jury size" to help address the backlog.

Now, he says, it is a debate to have once Covid-19 is over.

"Do some of the low-grade cases that go to the Crown Court really need as many as 12 [jurors]?" 

He recognises the sensitivity of the issue. No one wants to be seen as the person who undermines the right of an Englishman to be tried by his peers. Many, however, are already waiting a very long time for the privilege.