There`s nothing quite like human memory although the makers of AI are working hard to eliminate that impediment to their function to take over the world and for all of us surviving to live a life of leisure. I am old enough to remember when this country held its criminal justice system in something approaching reverence. In those far off days it wasn`t unusual to find a 200 word newspaper column devoted to a story of the decades long delays many defendants in India often had to face whilst on remand in prison. Leader columns would use such examples to extoll the efficiency of our justice system. These stories are now as distant as the Raj.
As of this spring there are just shy of 80,000 cases outstanding in the crown court; more than double the pre-pandemic figure and rising. A defendant charged today with a moderately serious either way offence in many parts of the country will wait the better part of two years before a jury is empanelled always assuming that jury is not itself the subject of abolition by the time the case is called. In the magistrates courts the open caseload stands at over 310,000. The median time from charge to a contested hearing in the lower courts is now around eleven months.
As we know to our cost the pandemic, the government`s alibi for so many problems, was not confined to this island: it was a world wide disease causing similar problems east to west and north to south. Across comparable common law and civilian jurisdictions, criminal courts have buckled under weight they were never designed to bear. The comparison illuminates both our particular failures and the surprising limits of the remedies being proposed. It also raises questions about our ambitions that Ministers appear singularly unwilling to address.
In the USA state courts are under no uniform management each of the fifty states being in effect an independent legal jurisdiction. Of the worst performers Louisiana is probably the most scandalous: defendants charged with serious offences in Orleans Parish have routinely waited three to five years for trial, conditions which would provoke a constitutional crisis in Westminster. Proceedings in Canada, California, New York, Texas and Florida for example carry individual caseloads dwarfing anything seen in England. New York state alone has had nearly 120,000 criminal cases pending at any one time.
The response in most American states has not been to abolish jury trial but to throw money at prosecutors, appoint more judges and where possible expand diversion schemes. No American legislature has seriously proposed what David Lammy is now legislating.
Culturally and legally the situation in Canada is interesting. For decades Canadian defendants have had the right to elect between judge alone and jury trial across a wide range of indictable matters. This has not saved Canada from crisis. The Supreme Court of Canada's celebrated Jordan ruling of 2016 established that charges must reach trial within eighteen months in provincial court and thirty months at superior court; ceilings now routinely breached, with cases thrown out not because of innocence but simply because the Crown was too slow. Hundreds of cases a year are stayed in Ontario and British Columbia alone on Jordan grounds. The lesson Canada offers is that offering judge alone trial as a defendant's right, as opposed to imposing it as a state convenience, did not solve the structural problem of too few judges, too few prosecutors and too little court time. It merely shifted the queue.
Australia's states have likewise embedded bench and single judge modes into their systems over many years and similarly have not escaped delay. New South Wales introduced legislated sentence discounts in 2018 to encourage earlier guilty pleas up to 25% for a plea at the local court level; a sensible if somewhat transactional acknowledgement of the system's dependence on defendants' cooperation. Victoria passed significant committal reform as recently as last December restricting full committal hearings in sexual and family violence cases so as to smooth the path to higher courts. Queensland runs magistrates courts with median disposal times of around five months for contested matters. None of these states has anything approaching England's current crown court backlog as a proportion of throughput.
New Zealand, on the other hand, has achieved the largest yearly reduction in its district court criminal backlog on record; 22% in 2025, through aggressive rostering, case management reform and remote participation protocols.
So much for the progress made by jurisdictions based upon the concept of the common law. Continental legal systems operate without that heritage. The question of jury trial simply does not arise at the lower court level. In Germany, the Amtsgericht, the rough equivalent of our magistrates court, operates as a professional bench by default. A single judge or a judge sitting with two lay assessors for more serious matters is tasked with the finding of fact and the determination of sentence. There is no defendant election. Most cases are completed within three to four months. The lesson to be learnt is that the absence of jury election has not produced a tyranny but neither was it the product of crisis legislation. It was built into the system from the beginning. One cannot simply graft the result onto a different constitutional tradition and expect the same outcome.
The backlog situation in England is, surprisingly, not the worst in Europe. The honour for that wooden spoon [gavel] must go to the inventors of the pizza and the makers of the world`s finest ice cream; Italy. Sixty percent of enforcement files in Italian courts are older than five years; a quarter exceed a decade. Criminal trials at first instance routinely take two to three years and statutes of limitation expire mid-proceedings with depressing regularity producing what amounts to acquittal by exhaustion. Italy's Cartabia reform of 2022 introduced binding time limits, essentially threatening extinction of charges unless proceedings concluded within set periods. The result, anti-mafia prosecutors warned, was not faster justice but abandoned justice: cases dropped not because they lacked merit but because the system lacked capacity to hear them in time. Last month a constitutional referendum on judicial structure was rejected by Italian voters.
Spain and France sit between the extremes. Spain's Juzgados de lo Penal bench-only courts for the bulk of criminal matters carry waits of eighteen months to two years in major cities, despite having no jury election problem. France resolves most criminal matters at the tribunal correctionnel in eight to ten months, performs roughly at the European median, and does so without juries below the most serious felony level. Both these nations appear to be at least coping with their backlogs without emergency legislation.
Returning to the Courts and Tribunals Bill currently making its way through Public Bill Committee, previous posts here have discussed its nuts and bolts which I do not intend to repeat except for the intention that has caused the current furore: the right of election for either way cases to be abolished entirely and for magistrates to decide venue, subject to expanded sentencing powers of up to eighteen or twenty-four months. The government's Impact Assessment puts total implementation at £123 million. Judicial salary costs for the additional sitting capacity required are not separately itemised. The crown court is expected to free up approximately 27,000 additional sitting days. To deliver that capacity with existing judges redeployed rather than newly recruited sounds credible until one notices that the circuit judge bench is already sitting fewer hours per sitting day than it was in 2016, that criminal legal aid rates still deter qualified practitioners from maintaining criminal practices and that the Lord Chancellor has set the Ministry of Justice a target of recruiting thousands of new magistrates and hundreds of district judges in the next year or two. "Ambitious" is the polite word most often used about these targets by those who choose their words carefully. The reforms, the government concedes, will not yield direct budgetary savings; the freed time will be consumed by the existing backlog and rising demand, not by reducing expenditure.
A cynic might conclude that the government`s plans to reduce the baglog by limiting the current use of jury trials is a diversionary tactic from its ultimate target of taking the present system in the continental direction; a movement which would have the whole legal fraternity puce with apoplectic rage.
The oldest maxim in the law is that justice delayed is justice denied. What the international evidence demonstrates with uncomfortable clarity is that delay is almost universally the product of the same causes: underfunded courts, too few judges, shrinking legal aid, buildings that leak and systems that predate the internet age. Not one of the jurisdictions discussed above, not Canada with its bench elections, not New Zealand with its tiered system, not Germany with its entirely professional bench, has escaped the backlog problem by restructuring modes of trial. What does or will work is increased financial input to the system and probably of more significance a management than can and is allowed to truly manage; a feature which is all too obviously lacking in so many parts of our society.
In the end the backlog crisis presents a choice. It is possible to pursue relatively inexpensive procedural changes that offer modest gains while leaving the underlying structure largely intact. Alternatively, it is possible to undertake the more demanding task of rebuilding capacity through sustained investment. The former may be politically and financially easier but it is unlikely to resolve the problem in any fundamental sense. A system that responds by reducing the availability of jury trial, without addressing the reasons for delay, risks compounding that difficulty.
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