THE MOJ AND THE CULTURE OF EXECUTIVE DENIAL

"If you owe the bank £100, that’s your problem. If you owe the bank £100 million, that’s the bank’s problem."  That old adage that has survived since John Maynard Keynes re-defined it 1n 1945 can loosely describe any system which has become too large or ungovernable to respond expertly or rationally to apparently insurmountable or unexpected turns of events. But this blog is not about economics or even about topics allied to economics: it is about justice as an umbrella and we, the public, who shelter under its protection. When that umbrella fails in a gale force wind during a storm and the user is soaked blame can be allocated in a spectrum from his own stupidity in venturing out in dangerous conditions to faulty manufacture owing to inadequate design and/or low quality materials. When a justice system is seen to fail in part or as a whole to whom are those responsible accountable? What happens in the MOJ is, in microcosm, typical of  the thought processes of those who govern us and their individual departments.

It can be said that without justice there can be no democracy but equally without democracy there can be no justice.  In effect there is a symbiotic relationship without which our model of society cannot survive.   In a symbiotic star system  when a critical threshold is reached a sudden, violent thermonuclear explosion called a nova takes place and the relationship between those heavenly bodies begins anew.  And so history shows us does the relationship between a people and their government when the bond of trust is broken beyond repair.  

When things do begin to go wrong we are entitled to ask where does responsibility lie. Parliament is accountable to the electorate. Ministers can be dismissed. Police officers can face disciplinary proceedings. Solicitors and barristers have professional regulators. Yet the public may find it difficult to establish who is responsible when a serious failure occurs within the courts. When a wrongful conviction occurs who takes responsibility for the failure? When a court repeatedly fails to sit because of inadequate resources who is answerable? When official statistics reveal a persistent problem but no effective remedy follows who must explain the inaction? And when successive governments introduce reforms that fail to deliver their promised benefits, is anyone required to account for the outcome?

The judiciary is independent and is not and should not be answerable to politicians so we are told but as has become more common in recent years whispers from on high can steer sentencing in a desired direction: deterrent sentences during and after the London riots of 2011 and more recently sentences imposed for on line offending and those involving banned organisations are newsworthy.  Although the Judicial Conduct Investigations Office exists to oversee judicial conduct the issue is not whether individual judges should be answerable to politicians for their decisions. Judicial independence is fundamental. The question is whether independence has sometimes become confused with institutional immunity from meaningful scrutiny.  General boundaries of responsibility are set out below.

Public confidence requires more than independent judges and sound legal principles. It requires institutions that acknowledge failure, explain its causes and demonstrate that lessons have been learned.  The Criminal Cases Review Commission (CCRC) is the last resort where convictions can be reviewed.  When that organisation`s flawed procedures are exposed as in the case of Malkinson (often misspelt as Mallinson), who was wrongfully convicted of a 2003 rape in Salford his story might have been authored by Franz Kafka. He served 17 years in prison for a rape he did not commit because he steadfastly refused to admit guilt to gain early parole. His conviction was finally quashed in July 2023.  The case brought into the public view the failures of the system.  Briefly, just three years after his conviction, deep-clean forensic testing under a cold-case review ("Operation Cube") discovered DNA from another, unidentified man on the victim's clothing. The Crown Prosecution Service (CPS) and Greater Manchester Police were notified by December 2009 but chose not to act.  The Court of Appeal quashed Malkinson's conviction in July 2023 and the perpetrator Quinn was eventually convicted of the original rape in 2026.

The repercussions of this failure were substantive.  In January 2025 Helen Pitcher (Chairwoman of the CCRC) resigned.  In July 2025 Karen Kneller (Chief Executive of the CCRC)  resigned.  the Independent Office for Police Conduct (IOPC) placed five former Greater Manchester Police officers under formal investigation for gross misconduct.  One of these retired detectives is also under active criminal investigation for misconduct in public office and perverting the course of justice regarding the hidden witness evidence and destruction of DNA samples.  Despite the CPS advising police to bury the breakthrough DNA lead in 2009, no senior prosecutors or leadership figures resigned or were dismissed. The agency issued institutional apologies but avoided individual personnel accountability at the executive level.

Following the scathing independent review into the Andrew Malkinson case the CCRC launched a massive historical trawling operation to re-examine thousands of past cases where critical DNA testing opportunities may have been missed. 2,553 cases were passed to a specialist forensics team. Currently the specialist forensics team has completed reviews on 728 of those cases resulting in dozens of brand new forensic inquiries leaving 1,825 historical DNA cases still actively undergoing review.



With internal processes having been re-assessed The CCRC noted in its latest annual report updates that it has intentionally shifted away from rigid "speed metrics" (which historically incentivized caseworkers to quickly close down complex files to hit timelines) toward an intensive, quality first approach to ensure no more hidden DNA profiles are overlooked.

But questions still remain.  The CCRC was created by the Criminal Appeal Act 1995 and officially began its work investigating miscarriages of justice on 31 March 1997.  Before the CCRC existed there was no independent watchdog. The predecessor function was split between a political office and a specific government department. That entire system collapsed in public confidence during the late 1980s and early 1990s following high profile miscarriages of justice such as the Guildford Four and the Birmingham Six. On the exact day the Birmingham Six walked free in 1991 the government announced the Royal Commission on Criminal Justice (The Runciman Commission) which ultimately recommended stripping the Home Office of its previous powers and creating the independent CCRC.

Such stories as above have in essence been repeated in many other situations the most heinous of which have been the blood scandal, the Post Office scandal and a multitude of corruption scandals within various hospital trusts leading to hundreds of unnecessary deaths.  The current revelations on the lies of the Health Secretary during the Covid epidemic show that the very highest people in government will seek to preserve their own position when the greatest of problems are likely to reveal their own  inadequacies.  

There is no doubt that some areas of government must be kept secret and a no through road sign presented to those who are employed to navigate such obstructions. Those restrictions, however, are apparently being extended to suit the whims of Cabinet Ministers and others beholden to the state for their highly paid and influential positions.  The balance of power between open democratic governance and a country`s rulers` obsession with secrecy is not a fixed entity. It must vary with circumstances.  In times of war flaws in that balance can be fatal. This government is telling us this month that we must stock up with three days food supplies, candles and battery radios.  Is this crying wolf to take our attention away from an imminent financial collapse?  Is guns before butter the slogan of failure or preparedness? Without public confidence in the integrity of those who rule us and their directly appointed devolved organisations including the MOJ, life and society as we know it  cannot continue in its present form.  

The case of Andrew Malkinson is just a terrible example of what can go wrong will go wrong. "Lessons will be learned" is often the final paragraph of a major inquiry.  It is the repetitive, institutional platitude that public bodies almost universally issue following catastrophic institutional failures.  The core issue isn't a lack of rules but an institutional widespread, cultural resistance starting right at the top of the system; any system. 

In the context of British justice inquiries the phrase has become a hollow administrative shield proving that while lessons are frequently identified they are rarely ever actually learned. Independence is essential to the administration of justice but accountability for the system's performance is also a pre-requisite for public confidence in it.  The question is whether the public still has that confidence. 

THE JUSTICE SYSTEM IS JUST THE BEGINNING

For those who wonder how on earth our so called justice system is very near breaking point on a number of parameters there is no need to search legal journals or listen to here today gone tomorrow politicians of all shades tell their tales of fantasy. My post today in https://amagistratesdiaries.blogspot.com/ dated 3rd December 2010 is merely a glimpse of the total inadequacy of a single member of a cabinet recently selected to follow Tony Blair`s Labour defeat.


With a new prime minister appearing to follow the Tik Tok approach to politics we are already on the downhill slope to abject failure. The shenanigans at MOJ are being repeated in almost every sphere of government to be publicly revealed when the bubble bursts. Immigration policy denied then approved by the minister in charge is but one example.


So as we all are advised to stock up with water, tinned food, battery radios, cash in hand and all the necessities for a possible descent into an undeclared wartime situation my near relatives who actually participated in a real war would be turning in their graves at the state in which our country has descended since their heroics.

EARLY RELEASE: JUST ONE SIGN OF A FAILING JUSTICE SYSTEM

This time last year the phrase early release would generally have had little meaning or recognition amongst many [most?] of the great British public.  Where it might have resonated with people would have been with regard to those being released from over crowded hospitals before their maladies warranted such discharge in order to free up bed spaces. Currently in the face of public disquiet the phrase has widespread recognition of a government policy that a prisoner may be released long before the public believes justice has been served.  For years successive governments have spoken of punishment, deterrence, rehabilitation and public protection. Yet the gap between the language of politicians and the expectations of ordinary people remains a recurring source of discontent. 

Recent polling provides some indication of the scale of that dissatisfaction. In August 2026 Ipsos reported that 69 per cent of those surveyed opposed the early-release scheme then under discussion while 79 per cent regarded prison sentences being too short as a serious problem. In May 2025 a YouGov survey found that three quarters of respondents thought the prison system was working badly. When asked what single change they would most like to see 17 per cent called for longer sentences or for prisoners to serve their full terms while an equal proportion favoured rehabilitation and reducing reoffending. These findings deserve attention but they must be read with care: a response to a particular question is not necessarily a settled view on every aspect of sentencing policy. Nor does dissatisfaction with early release automatically establish that sentencing guidelines themselves are defective.

There is, however, a glaring gap in any discussion of this nature.  Where is the reliable evidence showing how many members of the public, how many serving judges, magistrates, barristers and solicitors believe the guidelines are no longer fit for purpose? Without that evidence, assertions about what the country wants remain political claims rather than demonstrated conclusions.  The point in question as in so many others is the lack of sufficient  transparency that is consistent and credible to command public confidence a criticism which applies to all governments. 

Generally speaking polling suggests that given a say there is a public demand for five changes or improvements to the justice system.  There is doubt that offenders face consequences that fit the crime.  This does not establish that the public invariably wants longer prison sentences. It indicates that people want punishment to have meaning and offenders to be held responsible.

Public protection and more effective policing are felt to be lacking.  A YouGov survey published in March 2026 found widespread lack of confidence among adults in England and Wales in the system's ability to investigate minor crimes, impose appropriate sentences and reform offenders. It also found that 56% of victims who reported crimes were dissatisfied with the way police handled their cases.  Politicians speaking tough at party conferences  are soon exposed when actions fail their rhetorical flourishes. 

Since Covid long delays affect victims, defendants, witnesses and the proposal to reduce jury trials has exposed those delays to a wider public. 

An interesting finding from 2025 research is that the public is sceptical about the effectiveness of prison in preventing further crime. 

30% believed prison makes reoffending more likely.

35% believed it makes no difference.

21% believed it makes reoffending less likely.

In simple terms many people have little confidence that current policies of rehabilitation are succeeding.  Proven reoffending among adult offenders in England and Wales rose from around 23% during the pandemic to 28–30% in the latest published figures.  The 2025 More in Common research found that 58% thought the criminal justice system did a bad job of reducing crime while 39% thought it did a bad job of protecting the public. In September 2026, further polling reported that only 18% believed people who commit crimes usually face real consequences.

Apart from the government lap dog AKA, The Magistrates Association, there has been little support in legal circles for the Starmer government`s plan to reduce availability of jury trials. With magistrates` recruitment in crisis and increasing numbers of experienced JPs reaching the extended retirement age of 75 the concern must be the abilities of the lower court to offer quality judicial decisions especially with the current automatic right of appeal likely to be restricted.  

When sentencing is discussed, the most consistent question of opinion offered to the public is that of the death penalty.  It`s a subject so profound that I still have the school exercise book  in which whilst in Primary 7 when, years before its abolition, I wrote a few hundred words on why capital punishment should be abolished.  A YouGov survey in 2022  suggests that support for it stood at 40%, opposition 50% and 10% don`t know.  By November 2025, however, YouGov reported a change: 50% supported reintroducing capital punishment for some crimes compared with 45% opposed.  The particular offences proposed for that most serious punishment were listed as the murder of a child, murder committed as part of a terrorist act and multiple murder.

Like many parts of the Bible the basis of all sentencing, the Sentencing Guidelines, is open to interpretation.  Are they no longer fit for purpose? What do the public and legal profession think?  Public opinion is charted below.

In January 2025 the Law Society of England and Wales responded to the Government's sentencing review. Its response argued that successive governments had increased sentence lengths and created additional offences. It also raised concerns about sentence inflation, under resourced probation services and the consequences of inadequate information for sentencers. However this response cannot be treated as a poll of all solicitors, barristers and judges.

It`s not too impulsive to believe that the now easily recognised policy of early release which has been available in some form for decades has not become more acceptable to many people.  

There is a growing divide between what the criminal justice system says it is trying to achieve and what the public believes it is delivering. Sentencing guidelines are intended to ensure consistency and fairness but how can public confidence survive when the sentence announced in court seems so different from the time an offender actually spends behind bars? That is not, in itself, proof that the guidelines are wrong. It does, however, raise a question that the justice system cannot afford to ignore.

We must distinguish between the sentence imposed by the court and the time actually served. The first is determined by the judge or magistrates applying the law and the relevant guidelines; the second depends on the rules governing release. Yet the public hears the sentence, not the small print. When an offender is released much earlier than people expected it is hardly surprising that they question what the original sentence really meant. If the system wishes to retain public confidence it must explain that difference honestly and clearly.

Rehabilitation is another part of the equation. If offenders return to crime we must ask whether the measures intended to prevent it are working. Rehabilitation matters but it cannot simply be accepted as a worthy objective without examining the results.

And what of early release? Should it be something an offender earns through good behaviour, genuine engagement with rehabilitation and evidence of readiness to return to society, rather than something routinely anticipated? There is a strong case for that approach provided decisions are based on proper assessment and public safety is not compromised.

Prison overcrowding may demand urgent action but it should not become a substitute for a coherent sentencing policy. The public is entitled to expect punishment to mean something, rehabilitation to produce results and release decisions to be made responsibly.

Ultimately, the first duty of a sentencing system must be to protect the public. Punishment and rehabilitation both have a part to play but neither should be allowed to take precedence over the safety of the law abiding majority. That must be the starting point for any serious debate about sentencing reform.

DOES JURY RANDOMNESS STILL SERVE THE INTERESTS OF JUSTICE?

Juries: I think that my reader is well aware of the controversy emanating from the previous incumbent at the Ministry of Justice and his wish to eliminate some trials currently happening before a jury of "12 good men and true" although that early 17th century, 'good' implied distinguished rank or valour. The following is an attempt to reveal the underlying reality of juries and jurors.  But first some history: the modern English jury as we know it was established 1/6/1974 by the Juries Act.  Juries are selected by designated local catchment areas with reference to post codes. 

The current basic requirements for jury service are:-

Age: 18-75 on the date service starts

Registration:be on electoral register

Residency: lived in UK for at least 5 years since aged 13

Foreign nationals who meet Residency rule

Disqualifications are:-

Bail: anyone currently on bail connected to a criminal offence

Criminal Convictions: anyone who has received a custodial or detention sentence of at least 5 years

Recent Sentences: of custody active or suspended or community order or drug rehabilitation requirement within last 5 years.

It would seem that lacking a comprehensive knowledge of the English language would be a given for rejection of a juror but that assumption, unlike in America, is rather hasty because under s12 of the Juries Act 1974 defence and prosecution have the right to challenge an individual juror but they must provide a cause: prima facie evidence to the judge proving the juror is unfit to serve and before the juror is sworn.  That is therefore a rather difficult task in the circumstances. In addition a juror can be challenged if related to or knows persons involved in the case.  For obvious reasons an employee of the CPS cannot be a juror on a case prosecuted by his/her employer nor can a police officer if connected to the police station where s/he is based.  A juror can be excused if having served as such within two years previously. 

The prosecution retains an ancient right known as "Stand By for the Crown" to ask a juror to step down without giving an immediate reason.  This applies only when the potential juror is clearly unable to serve, eg if drunk or in high profile cases involving national security. It is the judge, however, who has the finial say in the discharge of a juror.  

Other common law based jurisdictions including Australia and some American states allow more challenges to potential jurors. 

The principle of a random selection of "peers" to determine a defendant`s guilt or innocence is now being questioned. Since 1945 this country has been subject to unprecedented levels of immigration and those newcomers have tended to settle with their kith and kin to the extent that today for example there is a concentration of non white citizens in various areas, eg 

English courts have historically ruled that "randomness" overrides "forced representation".  In practice this means that where an ethnic minority defendant is tried in an urban centre before a highly diverse jury the outcome could be different if the exact same offence were tried before a mono-racial jury.  This is no esoteric subject for ivory tower debate.  Annually roughly 350,000 - 480,000 citizens are randomly selected for jury duty and around 200,000 are actually selected to undertake jury service sitting on 13,000+ completed trials.  However recently, and the topic of some of my posts here earlier this year, the subject of perverse verdicts has become more than just a matter for legal eagles` discussions over tea and scones in an Oxbridge college. It focuses minds on whether "randomness" is approaching its sell by date. 

In landmark cases like R- v-Ford [1989] and R-v-Bridge[2019] the Court Of Appeal established that a defendant does not have a legal right to a racially balanced jury nor can a judge deliberately manipulate the random selection process to engineer an ethnically diverse jury pool.  Although perverse verdicts in a handful of high profile cases have drawn attention, particularly protest related ones, overall conviction rates in the Crown Court have been fairly stable over the long term, which doesn’t suggest a growing pattern of “runaway” acquittals.  However there is perception and there is reality.   Academics and civil rights groups have pointed out there is a major issue with perception and trust. 

The fact that no research has been or is allowed into the findings of a jury and how those findings were constructed are firmly closed to scrutiny leads to speculation, educated or otherwise.  Section 8 of the Contempt of Court Act 1981 makes inquiry into their deliberations an offence. Professor Cheryl Thomas’s research for the Ministry of Justice found no sign of systematic bias and found that verdicts broadly tracked the evidence. Variation between juries is inevitable but variation is not unreliability. The more pressing question is trust. Government intentions to remove some offences from eligibility for trial by jury are now in a state of flux.  Reducing the trial backlog as the reason for the proposed changes has been exposed as a possible curtain over more nefarious reasons.  

The case for the reform is vulnerable on its own terms. The evidence suggests that juries are not the primary cause of the backlog and the government’s own estimate of the saving is some £31 million, about 0.2% of the Ministry’s budget. The Criminal Bar Association attributes delay to chronic underfunding and restricted sitting days and warns that shifting fact finding to a less diverse judiciary risks undermining public confidence. The Institute for Government has gone further, cautioning that the changes could raise the risk of wrongful convictions.

The irony is plain. Random selection, the very feature that critics might point to as a weakness, is what gives a jury verdict its legitimacy. A decision by twelve strangers carries a representative authority that a single judge, however able, cannot replicate. If public confidence in the criminal process is to be protected the more promising course is to address resourcing and court capacity, not to trade away the one institution that the public demonstrably trusts but for how much longer.

INEFFECTIVE TRIALS 2013-2026: WHY HAS SO LITTLE CHANGED? PART 3

Plus ça change, plus c'est la même chose.  It`s not uncommon for a foreign language to express sentiment, observation or opinion more pithily and accurately than in English. And so it is on the subject of this my final thoughts on ineffective trials. 

As a reminder in 2013 ineffective magistrates court trials were already 18%.  By 2015 the figure had fallen to 15%. Then along came Covid. Current figures suggest that nearly 90,000 cases are awaiting trial at the magistrates court with overlisting still being considered at around 23% of cause of ineffective trials.  It seems that the problem is known but the remedy is not.   I have previously written what an ineffective trial really is and the ramifications it has for all those involved.  The Independent Review of the Criminal Courts has made the point with unusual clarity. Courts are under pressure to reduce backlogs while dealing with uncertainty over sitting days, judicial availability and case preparation. Overlisting becomes a way of trying to ensure that court time is not wasted when a trial drops out but when the listed cases actually do proceed some cannot be heard and become ineffective.  As I wrote in Part 2, " When too many cases enter the system [overlisting] some trials do not proceed and add to the queue in a vicious circle."

A courtroom is not a railway carriage.  If there are ten passengers and only six seats putting ten people on the platform does not increase the number of seats. Courts have a finite number of courtrooms, judges, magistrates, legal advisers and sitting hours.  Current listing practice is like force feeding geese to expand their livers prior to their slaughter to produce pâté de foie gras although it might initially make the waiting list look worse; so be it.  An honest waiting list is preferable to an apparently efficient list in which cases repeatedly collapse and have to be relisted. 

We are told almost daily of the advances in AI and daily there is a not insubstantial number of courts closed for myriad reasons.  Below is the crown court  situation today. 

Distant video hearings have been commonplace for ever increasing forms of hearings. With a well designed system underutilised courtrooms could be considered for an expansion of such hearings.  There will obviously be cases where geography, defendant welfare, witnesses, security or the interests of justice make transfer to such courts inappropriate but where those considerations do not apply, spare capacity should be capable of being used.  A case should go to an available court real or video rather than wait unnecessarily for an unavailable court.

I ended Part 2 of this series as follows,"Statistics which are not measured might be helpful in understanding why the courts are in this untenable position.  Are such numbers available?  If not, why not?  Are they available but being withheld?"  I would suggest that it might be useful to know of an ineffective trial:-

Why did it fail?

When was it first apparent that it would fail?

Could the problem have been avoided?

Who was in a position to prevent it?

How much court and professional time had already been spent?

How long did the defendant, victim and witnesses subsequently have to wait?

A box ticking exercise perhaps but one which could produce greater efficiency in the gathering of statistics and forming a realistic platform on which to consider change. If the problem is truly over listing then changes surely must be considered. 

If it is poor prosecution preparation, change prosecution case management.
If it is defence readiness address that.
If it is lack of court capacity, provide more capacity or reduce demand.
If it is judicial or legal adviser availability, deal with that directly.



A statistic which merely says "ineffective" is a description.
A statistic which identifies the preventable cause is a tool for reform. Every trial which fails to take place has cost money; in many cases lots of money, such sums currently not known to the public. Another example of statistics not known or wanted by the MOJ or known and withheld. To list but a few that come to mind in terms of possible cost:-


How many judicial hours?
How many court staff?
How many advocates?
How many witnesses?
How many police officers?
How many hours of preparation?
How many journeys?

A court that lists fewer cases but hears them effectively may be performing better than a court which appears extremely busy but continually adjourns, relists and reopens cases.  Even in my time on the bench there were various training sessions in pushing matters to an early conclusion the most memorable being under the slogan CJSSS:  Criminal Justice: Simple, Speedy, Summary.  That was followed by  "Stop Delaying Justice!" initiative that succeeded CJSSS in 2011. Legal analysts, senior judges and practitioners generally view programs like CJSSS and Stop Delaying Justice! as short-term successes that ultimately collapsed because they failed to fix the fundamental structural issues of the wider justice system.  There is a danger especially with a new government which is using modern social media in attempts to furnish its image that the answer to every difficulty will be another administrative reform, another procedure, another target or another management initiative. 

There are only two fundamental ways to reduce an overloaded system: increase capacity or reduce demand and preferably both. In addition to enough sitting days, judges, magistrates, legal advisors, courtrooms and properly prepared advocates to deal with the work which Parliament requires the courts to undertake, does every case currently entering the criminal courts need to consume the amount of court resource it presently does?

After thirteen years perhaps the statistics have finally done their job. They have shown that ineffective trials are not simply occasional accidents nor a problem created by Covid. They are symptoms of a criminal justice system which has repeatedly struggled to match the work demanded of it with the capacity available.  An uncomfortable [for some] conclusion is, as in so many aspects of our society, we have become better at managing failure than preventing it.  A case which repeatedly returns to the list is not evidence of efficiency. It is evidence that something has gone wrong.  When a trial fails the system should know why, whether the failure could have been avoided and what it cost. 

The lesson from 2013–2026 is therefore simple. We already know much of what goes wrong. The real question is whether there is now the courage to change the system that allows it to happen.

THE END.

INEFFECTIVE TRIALS 2013-2026: WHY HAS SO LITTLE CHANGED? PART 2

The phenomenon of trials failing to proceed in 2013 was not new.  The politicians in the House of Commons might have wished it away but deep in the bowels of Petty France mathematicians, statisticians, market research analysts, data scientists, data analysts, operations research analysts and others of similar expertise were like busy bees looking for explanations as to why the known problem of maladministration causing overlisting, defendants being absent and witnesses being unavailable was apparently intractable. Then along came Covid. 

It would be wrong to pretend that the pandemic did not fundamentally disrupt the criminal courts. Courts closed or operated with reduced capacity. Hearings were postponed. Jury trials were suspended or severely restricted. Cases accumulated but Covid was the exception, not the rule. Pre Covid the ineffective trial rate in magistrates courts was fairly settled at around 15%-16%. In 2026 Q1 the rate was 21% and had been steady for six years. In the same quarter overlisting was the cause of 21% of ineffective trials. The courts did not simply suffer a temporary Covid spike and then return to normal. They reached a new plateau. At the end of March 2026 the magistrates courts had 370,722 open cases; a series peak. The non-Single Justice Procedure caseload alone stood at 184,565. More strikingly, the number of open trial cases had reached 83,020, up 15% in a year and substantially above the 50,689 recorded in Q1 2022. Trial receipts have exceeded trial disposals in every quarter since Q1 2022. That is not simply a statistical curiosity. If more cases enter the trial system than leave it the queue grows. And when the queue grows finding courtrooms, judges, magistrates, advocates, witnesses and defendants at the same time becomes progressively more difficult.

In Q2 and Q3 2013, 72% of the ineffective trials attributed to court administration were not heard because of overlisting.  Plus ca change........It could be argued that there is a chicken and egg situation with regard to ineffective trials:  the backlog causes ineffective trials but also ineffective trials contribute to the backlog.  When too many cases enter the system [overlisting] some trials do not proceed and add to the queue in a vicious circle.  

In Q1 this year 4,884 trials were vacated before the date set. 52% resulted from the prosecution discontinuing the case before trial and 19% were attributed to an anticipated lack of court time. A case discontinued before trial, a trial vacated because there is no court time, a cracked trial following a late guilty plea and an ineffective trial are all different events but from the perspective of all those anticipating to be present; victim, defendant, witness or police officer their time has been wasted. For the victim reluctant to attend it might be a final straw in a decision to withdraw. For a police officer it is a further waste of public money when s/he could be "on the streets." For the rule of law it could be a further example of an offender "getting away with it."

Similar problems beset crown court. The ineffective rate in Q1 2016 was 24% compared with <20% in 2019. For a defendant who has pleaded not guilty and is eventually dealt with by a jury trial the median waiting time in Q1 2026 was 48 weeks compared with 27.1 weeks in 2019.  This is the government`s quandary now that the proposed reduction in jury trials is again up for debate. 

The answer to the above disappointing statistics can no longer be the mantra that Covid caused the backlog. There is a strong argument that ineffective trials remain substantially above their pre Covid level insofar as trial receipts continue to exceed trial disposals; the number of open trial cases continues to rise; overlisting remains a major cause of ineffective trials and the time taken to bring cases to completion remains above pre Covid levels. So the question must be asked if Covid was the cause of the problem or merely the event which revealed how little spare capacity the system actually has. If the answer is the latter, putting more meat through the meat grinder cannot be a suitable remedy.

Statistics which are not measured might be helpful in understanding why the courts are in this untenable position.  Are such numbers available?  If not, why not?  Are they available but being withheld? 

To be continued...................................

MORE DISTRICT JUDGES: FEWER LAY MAGISTRATES

I was reading an article yesterday on the state of the current housing market. Its central observation was that too many sellers are attracted to the agent who appears to give the best i.e. highest value for their property only to find that many weeks or months down the line the house is still for sale with limited interest being shown. Such sellers either have to offer the contract to another agent with a realistic i.e. lower valuation or remove it from the market to re offer months later.

In April the MOJ began a marketing campaign to enlist thousands of new magistrates.  It would appear that like the house vendor who can`t sell their house the recruitment drive has been re launched today.  At a time of financial belt tightening for so many families is it any wonder that there is a dearth of capable people willing to sacrifice annually a minimum of 13 full days worth of earning potential or leave from employment to enter a system of which truly most are unable to imagine.  Added to that time commitment there is additional need for training days and an awareness that social rules applying to judges at the High Court are applied equally also to the newest recruit to the magistracy.  

Unlike the estate agent the MOJ does not have a financial market as a guide to its selling the position of a lay magistrate to the general public.  Either it reduces the requirements of candidates or accepts that its offer is unacceptable at current standards. 

With the MOJ under the spotlight more in the last year than in the last decade it will take only a single academic study to show that full time district judges without the need for a legal advisor can take over from lay magistrates at no additional cost when their increased efficiency is taken into account, for that hitherto unthinkable change to be seriously proposed.  Like so much ad hoc reasoning within this government as with its predecessor this problem will be pushed into the neverland of tomorrow as so many others have been since 2024.  

INEFFECTIVE TRIALS 2013-2026: WHY HAS SO LITTLE CHANGED? PART 1

I suppose I am not unique at having reached a stage in life when looking back has a longer perspective than looking forward.  Now, a decade or more on from my last sitting, that perspective allows me to consider whether my meandering legal observations were just that or whether there was a substance to them, particularly substance borne out by the reality of change effected by some of the most inept political figures ever to have sat round the cabinet table at 10 Downing Street.  It might only be a footnote in history but is there significance in the fact that of all those Lord Chancellors, 14 since 1997 and 9 since 2012,  only one ever made it to occupy the highest office of prime minister and that was by common consent the most  calamitous, incompetent and hapless of them all; The still Right Honourable Liz Truss?  

There is an old saying that those who cannot remember the past are condemned to repeat it. The criminal justice system has an additional problem. Sometimes it does remember the past because the statistics are still there  but nobody appears to have asked whether the problem recorded then is still the problem being experienced today. Back in 2013 this blog was looking at the effectiveness of trials in the magistrates' courts. It was not a new subject even then. In the first quarter of 2013 39,115 trial hearings were listed in magistrates courts. Of those 44% were effective, 38% were cracked and 18% were ineffective indicating that those trials although listed did not take place and had to be re-listed.  In practical terms it meant that a courtroom had been occupied. A bench or judge had been allocated. A legal adviser had prepared. Prosecution and defence lawyers may have prepared. Witnesses may have attended. A defendant may have attended. Victims may have waited. And then nothing happens.

According to the MOJ for Q1 2013 court [mal?]administration was responsible for 21% of those ineffective trials, the defendant did not appear for 20% and prosecution witness[es] failed to attend in 16%.  Between 2015 and 2019 that ineffective rate had steaded to around 15% but for Q1 2019 court administration problems had risen to 27% and absent defendants to 24%.  Within the former group 72% of the failures were due to overlisting. That management issue was and is perhaps the most galling for magistrates.  It certainly was for me personally.  One couldn`t but feel sympathy for those attending be they lawyers or witnesses who were told that their case could not be heard. In Q1 of this year overlisting accounted for 21% of ineffective trials. So notwithstanding all the apparent technical advantages bestowed upon magistrates courts since my retirement efficiency is running to stand still. 

And then along came Covid.  The MOJ's current series shows the ineffective-trial rate rising from 17% to 23% across 2020 and 2021. Since then the rate has remained broadly stable at between 21% and 23%. The pandemic undoubtedly disrupted the operation of the courts.  That was then, this is now.  Why has the criminal court system not returned to its pre Covid level of trial effectiveness?  That is rather more difficult to answer.  Comparative figures for ineffective trials for 2013 and Q1 2026 are below.

At the end of March 2026, the magistrates courts had an open caseload of just over 370,000 and open trial cases had reached 83,020.

Scattering the numbers above is not to suggest that the good old days of 2013 were better; that would be ludicrous; there have been enormous changes.  In 2013 overlisting was already a recognised problem.  In 2019 court administration remained the largest individual cause. Then Covid produced a major deterioration and in 2026 overlisting is again the largest recorded reason for ineffective trials.  The last thirteen years have seen major reforms in the lower court including  the introduction of technology, halving the number of actual courts to the raising, lowering and raising again the sentencing powers of these courts.  But overlisting is still the bane for all court users.  Perhaps the criminal justice system has spent years trying to deal with the symptoms of delay without sufficiently addressing some of its causes.

END OF PART 1

JURIES, JUDGES, BARRISTERS, DEFENDANTS AND PERVERSE VERDICTS

Those with a legal ear to the ground can`t be unaware of the noise surrounding barrister Rajiv Menon KC who faced unprecedented contempt proceedings (up to 2 years' prison) over his closing speech defending a Palestine Action activist accused of damaging an Elbit Systems arms factory in Filton.  The trial judge had ruled that counsel could not invite the jury to disregard the court's rulings of law, disregard their juror oaths, or apply the principle of jury equity. Menon nevertheless referred to jury independence in his closing speech

This raises the fundamental question of what happens when the evidence against a defendant is overwhelming but the defendant nevertheless wants the jury to acquit?   Not because they did not carry out the alleged offence or because of some technicality  but because the motivation for the offence was such that they believed it was right.  That is a rather different proposition which raises the uncomfortable possibility that, in some cases, the defendant may actually be better off without a barrister because they do not have to obey the rules of a club of which they are not a member.

The Court of Appeal has already ruled that the original procedure for bringing the contempt proceedings was unlawful. That did not, however, settle the underlying question of what a barrister can properly say to a jury. The issue is still alive.

In April 2019 activists targeted Shell's London headquarters on Belvedere Road spraying graffiti, pouring fake oil, breaking windows and climbing the roof to protest against climate change. At trial in April 2021 a jury acquitted the six Extinction Rebellion activists of criminal damage despite the judge directing them that they had no defence in law. They had dispensed with their lawyers and represented themselves to enable them to put forward a defence that was not available to their barristers whose actions are strictly governed by the Bar Standards Board (BSB) Handbook, specifically Part 2: The Code of Conduct. They wanted to speak directly to the jury. There was no pretence that the damage had not occurred. The argument was essentially that what they had done was justified by the circumstances and by their beliefs. The jury acquitted them.

In the cases of Clive Ponting in 1985 and the Colston Four in 2022 their  defence teams successfully argued that their actions were in the public interest, leading to historic acquittals despite the judges` explicit directions to convict.  The bottom line is that the jury itself cannot be ordered by a judge to convict.  A judge can tell a jury very strongly what he or she thinks about the evidence and can explain what verdict would follow if the jury accepts particular facts. The jury is, however, the body which decides whether the defendant is guilty.  Even where a judge considers an acquittal would be perverse the judge has no power to pre-empt the jury's verdict by directing them to convict.

And this brings us back to the Menon case which is therefore about rather more than one barrister and one closing speech. It raises a much bigger question about the relationship between the judge, the advocate, the defendant and the jury. A judge can tell the jury what the law is. A barrister must obey the judge but a defendant representing himself can stand in the witness box, or before the jury in their closing speech, and say what they believe. And if what he believes is: “Yes, I did it but I ask you to acquit me,” there is something rather fundamental about the jury system which allows him to make that appeal. To some degree litigants in person are enabled to pursue actions forbidden to barristers and actively take that route for their defence so achieving the spectacle of perverse verdicts.

There is one further possibility which has been alluded to in an earlier post on this Blog. The previous government's proposals to reduce the use of jury trials have been presented principally as a response to the Crown Court backlog. That is the official explanation. But is it the whole explanation?  There have been a number of recent cases in which juries have acquitted defendants involved in highly political causes.  In addition to those cases mentioned above, climate protesters and Palestine Action supporters,  notwithstanding evidence which, on the face of it established what they had done, have been acquitted.

Could governments be concerned that a jury does not always behave as the Government, the prosecution or even the judge expects particularly where questions of political, religious or ethnic identity are involved?  And, more specifically, has there been concern about the possibility of block voting on an identity basis, including the possibility of Islamist influenced voting in cases involving Israel, Palestine or terrorism?

A jury is supposed to decide the case before it, not the political cause with which a defendant identifies. Yet twelve individuals bring their own experiences, beliefs and prejudices into the jury room. That is both the strength and the weakness of a jury system.  Indeed the same applies to magistrates courts.  As a peripheral observation:  if a bench constituted three Muslims could a Jewish defendant feel that s/he would get a fair hearing? 

David Lammy's own 2017 review concluded that juries did not, on average, produce different results for BAME and white defendants while identifying disparities in some magistrates court outcomes.  Those results indicated that juries are less susceptible to certain forms of bias than magistrates.  Why then reduce their role?

If there is a fear that identity politics can produce verdicts which depart from the straightforward application of the law, removing or reducing jury trial would certainly reduce that particular risk.  However on the other hand the jury system is akin to a defensive barrier between government which makes the law and the protection of the citizen from the excesses of that legislation. 

If the jury alone decides guilt how far may a defendant, as opposed to his barrister, appeal to the jury's conscience?

THE SAMPLE, NOT THE STAMP

What goes around comes around; an old adage which is understood worldwide and comes home to roost on this site. Since the first post here in 2013 this will be number 1,580 but it`s unlikely 13 years from now to be the most viewed.  That privilege currently belongs to a post  published Friday, 16th August 2013 titled WARRANTS OF ENTRY & UTILITY COMPANIES//SIX OF THE BEST. When I discovered this my first thought was that something somewhere is going wrong. What can a 13 year old and older series of posts offer to a reader in a world where 13 years has seen a totomic change in British society?  It remains, extraordinarily, the most visited "old" post on this site;  proof, if proof were needed, that the British public's appetite for stories of bailiffs, bullying and bench sitters being taken for fools has not diminished with the years.

Comparing that post to the current legal and procedural landscape the process for obtaining a warrant of entry to disconnect electricity or gas supply or fit a prepayment meter has changed in several concrete ways.   Since 6th February 2023 the listing and determination of applications for warrants of entry for the purpose of installing a prepayment meter was suspended with immediate effect, following Ofgem's announcement of a market wide review into the practice.  This followed an investigation (triggered by a Times exposé of British Gas debt agents breaking into homes) that found companies were bypassing Ofgem guidelines by obtaining rushed court warrants with several hundred warrants sometimes signed off in minutes leaving no time for genuine evaluation of individual cases; essentially confirming, at national scale, exactly the "rubber-stamping" the blog had complained about for years. 

Readers might recall my complaint of a decade ago that too many colleagues treated these applications as legal confetti,  signed, sealed and handed back across the table before the ink was dry, with scarcely a glance at the "particulars" behind the request. I described Southern Electric turning up with nothing but an address and a debt figure, expecting us to wave it through like a parking permit. I described a bailiff who could not confirm the name on the account she wished to force her way into. These were not isolated eccentricities. They were, it now transpires, symptomatic of an industry-wide practice that eventually became a matter of national outrage rather than merely magistrates' court gossip.

After the listing of prepayment meter warrant applications was suspended nationwide on 6th February 2023 on 21st February 2023 Ofgem announced that two suppliers had been given permission to restart and the courts recommenced listing such applications only once suppliers had satisfied Ofgem's new standards. So a supplier must now clear a regulatory gate with Ofgem before it can even bring a warrant application to a magistrate; an extra check that didn't exist in 2013. The complete sequencing of the revised requirements was as follows:-

6 February 2023 — listing of prepayment meter warrant applications suspended nationwide.

10 March 2023 — Ofgem announced all suppliers had signed up to the updated Code of Practice.

8 January 2024 — Ofgem announced three suppliers had been given permission to restart involuntary PPM installations.

21 February 2024 — Ofgem confirmed a further two suppliers had been given such permission.

Only once a supplier had satisfied Ofgem's new criteria  company by company, not industry wide,  did the courts recommence listing such applications at all.

Mandatory pre-application steps are now written into supplier licences, not just "good practice".  The Good Practice Guide the blog described was voluntary and unevenly followed. It's since been formalised as a licence condition. From 8th November 2023 energy suppliers must follow new stricter rules before a prepayment meter can be involuntarily installed  including making at least 10 attempts to contact the customer and carrying out a site welfare visit before installation with the highest-risk customers (e.g. those on powered medical equipment) exempted entirely. The rules specifically end forced installations for people over 85 and those with high-risk illnesses.

The hard and welcoming fact is that the system has actually changed and changed for the better.  There is also, at last, a fee protection I would have welcomed a decade ago.  Standard Licence Condition 28B now caps such charges and prohibits suppliers passing on costs associated with obtaining the warrant itself. It will not undo the injustice suffered by those who wrote to me in 2014 and 2016 describing the many repeat applications against them  but it should prevent the same happening to others.  Ofgem has extended the relevant licence conditions to 30th June 2027. 

Does this mean the rubber stamp has been retired for good? I would not go so far. Judicial guidance now explicitly directs magistrates to satisfy themselves that Ofgem's standards, the Human Rights Act 1998 and the Rights of Entry (Gas and Electricity Boards) Act 1954 have all been properly engaged with  which is welcome but guidance is only as good as the bench applying it, crowded list or no crowded list. As I have said before and evidently must say again: it will take a brave and diligent bench to make sure this is more than paper reform.

However life is not all sunshine and rainbows for those unable to cope with rising utility bills.  There is one further wrinkle the original six posts could never have anticipated and it deserves its own footnote for those of a procedural turn of mind. The old model, whatever its failings, was at least one of individual attention: a bench, a bailiff and a single warrant argued (or not argued) on its own facts. The new regime abandons that model almost entirely. Applications now arrive not as bundles of paper across a table but as a CSV file submitted electronically to an assigned court office with a separate file for each purpose:  prepayment installation, commercial disconnection, safety or theft cases and so on. The written information for each case is confirmed on oath and filed by the court officer sight unseen by the magistrate save in sample form.  

For lists under 100 cases the guidance recommends the bench examine five; for larger lists, ten  with at least five prepayment cases guaranteed a look whatever the total. If those samples satisfy the court the remainder are granted en bloc. Only "unusual applications," particularly residential disconnection, must still be heard individually.

I confess to mixed feelings. It is, in one sense, precisely the sort of structured, evidence based scrutiny I spent years wishing my colleagues would apply case by case. And yet it is also, by design, a system in which the overwhelming majority of warrants are never individually seen by the magistrate signing for them, merely inferred safe by statistical proxy. Whether that is judicial efficiency or rubber-stamping wearing a spreadsheet, readers might judge for themselves.

With continual criticism rightly falling on the Single Justice Procedure and the judicial acceptance of a statistical analysis to determine whether or not a utility disconnection or prepayment meter at an additional cost to the consumer is installed, judgement appears to be ever more distant  from the individual whose door may yet be broken down and drifting instead toward a bureaucratic exercise in probability where the fate of the many rests not on the facts of their own case but on whether a handful of others' paperwork happened to pass muster on a given morning.