With huge court backlogs and prisons at breaking point, the very future of our criminal justice system is in peril. As David Lammy takes up his post as Lord Chancellor, the challenge of saving this vital public service has never been more urgent. This system is how society sets and enforces its rules for its citizens; rules set by Parliament, the democratic voice of the people. It is through the fair application of these rules that order is maintained, criminal behaviour is deterred and the vulnerable protected.

When this crucial public service is abused, it does not go unnoticed. The general public showed their outrage at the mass miscarriages of justice which were brought upon the sub postmasters.

Fair and equal application of criminal law is seen as a key indicator by others of a country’s stability and reliability as a place of business. Our criminal justice system is at the heart of the English & Welsh legal system, a system that has created the largest legal services market in Europe, indeed the second largest in the world.

But in England & Wales our criminal justice system faces a series of crises.

The present

There are arguably three major crises at present, all attributable to decades of neglect by successive governments.

Firstly, the backlogs in the Crown Courts are continuing to rise hitting a high of just under 77,000 cases, with trials listed in 2029. The Magistrates Courts fair little better with backlogs of over 310,000 cases and trials being put off for over a year after pleas are entered. In response to this the government have commissioned Sir Brian Leveson to find solutions in order to bring the numbers down.

Secondly, prison overcrowding has already hit crisis levels with the government having to take emergency measures to avoid issuing a directive to the police and courts telling them not to arrest/send anyone to prison. In seeking a longer-term solution, the government commissioned a report from David Gauke to look at sentencing and has now introduced a Sentencing Bill.

Thirdly, staff shortages. Despite our criminal justice system being a vital public service, it has been neglected and underfunded for decades by successive governments. As a result, legal advisers in the Magistrates Courts - who advise magistrates on points of law, practice, and procedure - have seen their pay fail to keep pace with other government legal jobs.

For defence lawyers - who attend police stations to represent suspects at their police interviews and represent defendants in the criminal courts - the failure to increase legal aid rates has led to firms being unable to pay sufficient salaries to retain or attract talent. Since 2017 over 25% of duty solicitors have left this practice area, and just 7% are under 35 setting the conditions for further legal aid deserts.

Whilst providing some extra money for criminal legal aid, the government will not commit to annual increases, so the problem will keep repeating itself.

Is this just an issue for England and Wales?

England and Wales is far from alone in having to deal with crumbling courts, lengthy case delays and shortages of criminal defence lawyers.

A similar picture can be seen across swathes of Europe with delays most acute in Italy, in part due to its long appeals process.

On a recent trip to North America, I learnt that these problems are not confined to our side of the Atlantic.

In many US states there are shortages of lawyers prepared to undertake criminal defence work with the key reason for this being identified as the levels of renumeration.

In Canada, there is a constitutional requirement for a trial to be held within a reasonable time, with the consequence that if trials are not held within the stipulated time cases are not allowed to proceed. Whilst this has resulted in increases in resources for criminal legal aid, these have not been sufficient to prevent defence lawyers abandoning defence work, often moving to the prosecution, particularly amongst female lawyers. One young lawyer I spoke to said that 15 people from her class at law school became criminal lawyers but only three have stayed the course.

The future

The criminal justice system in England and Wales cannot be allowed to collapse, the consequences for the country and society would be dire. So, what to do?

The Gauke and Leveson reviews set up under the previous Lord Chancellor attempt to address the supply and demand problems in the criminal justice system including a much-needed focus on alternatives to the use of custody. We urge the government to be brave in adopting these radical solutions to the criminal court backlogs and prison overcrowding.

I urge the new Lord Chancellor, David Lammy, to take radical action that is also needed to ensure the sustainability of the supplier base so that criminal defence lawyers do not become an extinct species. Without this, efforts to save the criminal justice system will fail.

Such action must incorporate investment and targeted financial incentives to ensure lawyers can see a future in the profession.

There also needs to be investment in funding for training to encourage a diverse and sustainable workforce and minimum salary levels for criminal defence lawyers must be maintained in real terms through inflation indexing with the creation of a review body to report annually.

Richard Atkinson, president of the Law Society of England & Wales

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