The criminal justice system in England and Wales faces the triple threat of a shortage of defense lawyers, a financial shock as government leave aid ends and massive postponement of lawsuit due to the coronavirus pandemic.
As judges postpone trials until 2022 and some refuse to take suspects into custody when deadlines are repeatedly violated, pressure mounts on the Justice Department to open more courtrooms emergency services that will operate safely during the crisis.
Even before the coronavirus hit, failure to raise legal aid fees led the Bar to warn that criminal defense lawyers could soon disappear in parts of England and Wales. The number of accused who have had to represent themselves – because the thresholds for legal aid have not been raised for years – is on the rise.
The shortage is compounded by the fact that the Crown Prosecution Service – which recently provided more funding – is recruiting experienced criminal lawyers.
The lockdown has also led some lawyers to be placed on leave following the closure of courts across the country; this financial support ends in October.
Financial pressures have intensified as the Legal Aid Agency (LAA) reduced its “standard monthly payments” to criminal law firms to protect cash flow; due to insufficient invoiced work, the agency began to reduce payments. Earlier this month, law firm Irwin Mitchell warned 110 jobs were at risk.
Simon Davis, president of the Law Society of England and Wales, said: “A profession that was already dangerously underfunded before the pandemic – with defense businesses sinking at an alarming rate – has been plunged into deep trouble. waters even more agitated by Covid-19.
“We believe it is inappropriate to make drastic cuts to standard monthly payments at a time when many criminal legal aid firms are struggling to survive and defense lawyers are needed more than ever,” given the huge backlog of criminal cases.
“Such cuts will only lead to layoffs and business closures. Without government support, criminal defense companies might not be there when justice is needed in the future, leaving victims in limbo and defendants potentially denied a fair trial.
Ian Kelcey, a Bristol lawyer who is co-chair of the Bar’s Criminal Law Committee, said: “There is a real risk that the lawyers will be sacked because the job is just not there right now.
He said the layoffs combined with the retirement of more experienced lawyers could “create a major problem for the government. [if there’s no one to defend those charged]. The CPS has also hired more lawyers who want security [of a regular salary]. »
The prospect of job losses in the midst of a mountain of unfinished criminal cases may seem paradoxical but can be explained by the growing backlog.
In March, the number of cases awaiting hearing in Crown courts in England and Wales was just under 40,000. By the end of July, that number had risen to 43,676. total Crown and trial courts increased to 560,000 cases.
The backlog predates Covid. The reduction in sitting days for judges, imposed in recent years to reduce expenses, has slowed the pace of criminal justice.
To address the backlog, some former judges and lawyers have called for trials without a jury, like the Diplock Courts in Northern Ireland, to overcome difficulties with social distancing.
The Justice Department has plans in reserve for smaller juries or a judge sitting with two magistrates. These changes would involve at least secondary legislation.
Rather, the goal is to speed up the reopening of courtrooms by using Plexiglas partitions to separate jurors. The 2 meter physical distance rule has been relaxed to “1 meter plus”. Portacabins in the parking lots of courthouses are being considered.
Longer hours of operation, piloted in Liverpool, may be extended to other courts and 10 “Nightingale” emergency courts in new premises are being created.
The immediate problem is that the trials are already listed until July 2022.
Earlier this month, a Woolwich Crown Court judge refused to extend custody times for a suspect in a drug case for a third time and released him on bail.
Justice Raynor said: “The delays in bringing cases to trial that are experienced by the courts will not be alleviated by the current actions taken by Her Majesty’s Judicial Services.
The Criminal Bar Association, which represents the lawyers, echoed his warning: “We are now pushing to the limit of basic principles of the rule of law and ensuring that people are not detained without trial indefinitely,” he said. said a spokesperson.
Phantom Justice Secretary David Lammy said: “From day one of this crisis Labor has made it clear that the government must act urgently to prevent the collapse of the courts.
“The justice system had been pushed to the brink even before the pandemic, by 10 years of Conservative cuts, court closures and reduced sitting days. The Justice Department’s incompetent response to this once-in-a-generation crisis has been to ignore judges, fail to support legal aid lawyers, and fail to deliver on promises to provide adequate emergency judicial space. .
A MoJ spokesperson said: “More than 90% of the court buildings are open and we are increasing the capacity of the entire estate so that cases can be heard as quickly as possible – dates set aside so far in advance are tentative and often advanced .
“Decisions to extend custody times rest with independent judges, who will review the circumstances of each case taking into account the time served and the seriousness of any crime.”