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.
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.
