Whatever its cause, a backlog of more than 73,000 Crown Court cases is not acceptable. Delays for complainants, defendants and witnesses all impede justice. In the third quarter of 2024, the Crown Court received 31,683 new cases and disposed of 29,502. The passage of time will not solve the problem. Change is inevitable.
Sir Brian Leveson, who is leading a major review of the criminal courts, has before him the relevant sections of Sir Robin Auld’s closely argued report, published in September 2001, together with his own earlier review published in January 2015. In considering Sir Brian’s recommendations, the Government must also take account of wider developments within the criminal justice system, particularly the outcome of the Independent Sentencing Review (the Gauke Review). If that review recommends greater use of community sentences and generally shorter custodial sentences, this may reduce the number of guilty pleas entered in the Crown Court, easing pressure on the court’s caseload over time.
Although the terms of Sir Brian’s review do not extend to wider cross-system efficiencies, they do include consideration of “any other recommendations to tackle the outstanding caseload”. One of the greatest challenges is that both magistrates’ courts and the Crown Court are receiving more cases than they are disposing of. Sir Brian’s review will no doubt consider both the immediate risk of systemic failure and the longer-term reforms needed to prevent it.
Reforming the point of entry into the criminal justice system would help reduce the outstanding caseload. Greater use of out-of-court disposals, including diversionary cautions, could provide an effective filter for appropriate cases without requiring significant legislative reform. Diversionary cautions, or a strengthened alternative, would be particularly suitable for defendants of previous good character or those offending because of addiction or mental ill health. Local diversion schemes could provide interventions comparable to those offered by the Probation Service, potentially reducing the need for more radical changes to jury trial rights or the system of case allocation.
If further reform proves necessary, simply reclassifying either-way offences as summary-only offences is unlikely to provide a complete solution. Should receipts continue to outstrip disposals, more fundamental reform of the procedures governing either-way offences may become unavoidable.
Sir Robin Auld examined the right to jury trial in considerable detail. It has long been suggested that some defendants elect trial in the Crown Court primarily to delay proceedings, hoping that witnesses disengage or that circumstances change over time. Sir Robin concluded that defendants would be more likely to elect summary trial if there were greater certainty that sentencing would remain within the magistrates’ court. He therefore recommended abolishing the power to commit defendants to the Crown Court for sentence following summary trial.
In contrast, current Sentencing Council guidance on allocation continues to place significant emphasis on the magistrates’ court’s power to commit defendants for sentence. If the objective is efficiency, this may be counterproductive. Retaining sentencing within the magistrates’ court, together with maintaining broad appeal rights, could make summary trial significantly more attractive and reduce the number of defendants electing Crown Court trial without restricting the fundamental right to jury trial.
That said, a central issue for Sir Brian’s review is likely to be whether an intermediate level of court should deal with a category of either-way offences where jury trial would no longer be available as of right. This concept was examined extensively in Chapter 7 of the Auld Report. Such a court would not necessarily require a new institution but could operate as an upper division of the magistrates’ court, comprising a professional judge sitting alongside two lay magistrates. It could exercise sentencing powers greater than those currently available to magistrates but more limited than those of the Crown Court.
The appeal process would require careful consideration. Increased use of summary trials would likely result in more appeals to the Crown Court and more appeals by way of case stated. Although magistrates’ court buildings may provide suitable venues, many would require substantial investment to accommodate longer and more complex trials.
Whilst the history of jury trial is often cited, Sir Robin’s analysis demonstrated that its development is less extensive than many assume. Nevertheless, any proposal to restrict jury trial is likely to generate considerable concern. Two Criminal Justice (Mode of Trial) Bills failed in 1999 and 2000 because of difficulties in defining appropriate allocation criteria. Any reform should therefore be as limited as possible whilst achieving a meaningful reduction in Crown Court workload. Robust statistical analysis would be required to identify which categories of case could appropriately be heard within an intermediate jurisdiction.
If such an intermediate court were established, the allocation process should remain straightforward and transparent. We propose a two-stage process based upon both the type of offence and its likely level of seriousness. Certain either-way offences would remain in the Crown Court because of their nature or because they were likely to attract sentences exceeding two years’ imprisonment.
Following a guilty plea, the magistrates’ court could either sentence the defendant itself or commit the matter for sentence to the upper division or the Crown Court where appropriate.
Where a not guilty plea is entered, allocation would proceed as follows:
- Is the offence a specified either-way offence?
- If not, the existing allocation process applies.
- If so, proceed to stage two.
- Applying the relevant sentencing guidelines, is the likely maximum sentence two years’ imprisonment or less?
The parties could still agree to summary trial where the magistrates’ court accepted jurisdiction. Where a case fell outside the magistrates’ court’s jurisdiction but within that of the proposed upper division, submissions could be made if either party believed a Crown Court jury trial remained appropriate. Disclosure would also require careful consideration. Despite previous recommendations, disclosure within the magistrates’ court continues to present practical difficulties, particularly when attempting to engage reviewing lawyers. Consideration would also need to be given to whether defence statements should become mandatory in trials before the intermediate court.
There should be a paper-based right of appeal against allocation decisions to a senior Circuit Judge or their nominee. Cases falling outside the jurisdiction of the proposed upper division would continue under existing procedures, either because the magistrates determine that the Crown Court is the appropriate venue or because the defendant elects jury trial where that right remains.
Other practical issues would also need to be addressed. Magistrates’ courts already operate under considerable pressure, and additional funding would be essential to avoid merely shifting the backlog elsewhere in the system.
Research would also be needed to determine whether there are sufficient professional judges, deputy district judges, recorders and experienced magistrates available to staff any new division. Equally important would be ensuring that lay magistrates retain meaningful participation alongside professional judges, thereby preserving public confidence in the administration of justice.
We end where we began. As of September 2024, there were 327,228 open cases in the magistrates’ courts. Whilst receipts increased by 3% compared with the previous year, disposals fell by 5%. For six consecutive quarters, magistrates’ court receipts have exceeded disposals. This underlines the importance of expanding out-of-court disposals, where usage has actually fallen by 1%, and reforming the entry point into the criminal justice system.
This article was first published by the Law Society Gazette on 24 January 2025.
Further information
If you have any questions regarding this blog, please contact Matthew Hardcastle in our Criminal team.
About the authors
Matthew Hardcastle specialises in pre-charge investigations and litigation. He has particular experience acting in high-profile matters involving members of the media, the entertainment industry, professional athletes, politicians and regulated individuals.
