Court delay at its current scale is unacceptable. Yet in the urgency to reduce backlogs, we must take care not to dismantle the very safeguards that define our justice system.
In his Independent Review of the Criminal Courts, Sir Brian Leveson is clear that delay in the court system is not a new phenomenon. He identifies 'chronic underfunding at every step' as the principal cause of delay, which has driven capacity constraints including insufficient judicial sitting days, recruitment gaps, limited court estate availability, and a shrinking pool of practitioners undertaking publicly funded work. Although his focus falls on the criminal courts, delay is systemic, affecting coronial and civil courts in a similar fashion.
A domino effect
Inevitably, when cases cannot be heard within a reasonable timeframe, pressure is simply displaced elsewhere. The Committee of Public Accounts has observed that the Crown Court backlog has contributed to a surge in the number of individuals held on remand. Those awaiting trial or sentence now account for approximately 20% of the prison population in England and Wales. Recent reports of a 30% increase in deaths in prison custody in the 12 months to September 2025 illustrate the strain within custodial settings. While there are undoubtedly multiple causes, custodial congestion cannot sensibly be excluded as a contributing factor to increased custodial deaths. This can, in turn, generate further inquests and civil claims arising, compounding pressure on the courts and reinforcing a systemic cycle of delay.
The integrity of evidence is another casualty of delay. As time passes, memories fade, witnesses disengage and the reliability of evidence diminishes. The longer a matter awaits resolution, the more fragile the evidential landscape becomes. Delay does not simply postpone justice; it risks distorting it.
For claimants, defendants and families navigating the courts, prolonged uncertainty can intensify financial pressures and place a significant toll on mental health. A justice system that cannot deliver timely resolution risks losing legitimacy.
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Meaningful reform
Reducing delay without compromising justice must begin with early legal representation, which underpins timely access to justice. Yet participation in legal aid work is declining, and the resulting shortage of practitioners further constrains the justice system’s capacity. Jason Lartey, president of the London Criminal Courts Solicitors Association, has highlighted a 16.7% reduction in firms undertaking legal aid work since 2012. This decline reflects precarious legal aid rates, which have made publicly funded work financially unviable for many firms and contributed to falling participation. A justice system cannot address delay or safeguard fairness if the supply of advocates and practitioners continues to contract. This point is particularly pressing given the government’s recent announcement to introduce the largest reforms to legal aid in over a decade which may increase demand for practitioners in this field. If the government is serious about reducing backlogs in the court, legal aid must be recognised not as an ancillary support mechanism, but as core infrastructure enabling the justice system’s ability to function.
While legal aid is essential, it represents only one dimension of a broader structural underfunding problem. The Institute for Fiscal Studies reports in 2025–26, the Ministry of Justice’s day-to-day spending (after adjusting for inflation) remains 14% lower than it was in 2007–2008 and 24% lower per person. This wider underfunding is difficult to reconcile with commitments to reduce delay. It is acknowledged that underfunding directly contributes to insufficient judicial and court staffing levels, constrained sitting availability, limited venue capacity and a shrinking pool of legal aid practitioners which in turn exacerbate delays across the system.
Recent proposals to reduce the criminal courts backlog include restricting jury trials in certain cases, on the basis that a jury may not always be the most appropriate forum for every category of case. Trial by jury remains a cornerstone of the criminal justice system, reinforcing public confidence and the legitimacy of outcomes, and such proposals have therefore generated significant debate among legal practitioners and the judiciary.
Reducing delay is imperative. But if the principal cause of the delays is sustained underfunding and diminished capacity, reform must begin there. Ultimately, altering the mode of trial will have limited impact if courts continue to lack judges, practitioners, administrative support, and available venues.
Conclusion
Reducing delay without compromising justice requires reform that strengthens the system’s foundations. Coordinated action must address judicial and court staffing, sitting availability, venue capacity, and the implementation of more viable legal aid rates to ensure the continuance of practitioners in publicly funded fields. Replenishing the pool of public law practitioners is integral to securing meaningful access to justice, and properly resourcing this field is critical in the face of rising demand. Without sustained investment, delays will persist, safeguards will weaken, and public confidence in the justice system will continue to erode.
Jennifer Ellis, senior solicitor in the military claims team at Bolt Burdon Kemp
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