National Audit Office: Ambition to reduce Crown Court backlog no longer achievable

The Ministry of Justice's ambition to reduce the Crown Court backlog of 67,573 cases to 53,000 by March 2025 is no longer achievable¹, according to the latest National Audit Office (NAO) report.

The MoJ publicly set its ambition to reduce the backlog at the October 2021 Spending Review after being given £477 million to support recovery across the criminal justice system, including to help reduce court caseloads. However, the backlog is now higher than it was in 2021. MoJ now estimates the number will be closer to 64,000 by March 2025², but has not set a new ambition to reduce the backlog.

The report, ‘Reducing the backlog in the Crown Court' found outstanding cases are 78% higher than at the end of 2019, and 11% higher than at the end of June 2021 when the independent spending watchdog last investigated.

Last month, the MoJ said the most pressing consideration in relation to reducing the Crown Court backlog is the pressure on prison capacity which has become more acute in recent months, including because of increases in the remand population.

The NAO reports that in 2023, the remand population in prison went over 16,000 – the highest in 50 years – with around two-thirds awaiting trial.

The report found over a quarter (27%) of the backlog cases have been waiting a year or more to be heard, and the number of cases waiting for two years or more³is 6,523.

Delays are exacerbating the impact on victims and witnesses, as well as increasing the risk of cases collapsing. Longer delays mean victims and witnesses may withdraw from proceedings, or their recollection of evidence declines over time. It can also impact victims' mental wellbeing, and that of defendants awaiting trial.

On average it takes 683 days from offence to a case completing at the Crown Court, including 279 days from first listing of cases in magistrates' courts to completion. Currently, almost a fifth (18%) of cases awaiting trial are sexual offences, and cases involving violence against a person are nearly a third (32%)⁴. 

There are several issues causing the backlog, including: a shortage of legal professionals working in criminal law; high rates of ineffective trials; an increase in complex cases such as adult rape; and cases delayed by COVID-19 and the criminal defence barristers' industrial action. The NAO also found that the actual levels of incoming and completed cases have been consistently lower than MoJ forecast at the 2021 Spending Review.

To increase capacity in the Crown Court in response to the growing backlog MoJ has increased the number of courts, sitting days and judges.

The MoJ cannot put a figure on how much has been spent on addressing the backlog because additional funding is added to operational budgets across the criminal justice system and is not separately monitored.

For two years, the Criminal Justice Board (CJB), which brings together representatives from across the criminal justice system including the judiciary and is chaired by the Secretary of State for Justice, did not meet. This reduced oversight of action to help the justice system recover from the pandemic. The Criminal Justice Action Group (CJAG), which is attended by officials across the criminal justice system but not routinely attended by the judiciary and is chaired by the most senior civil servant at the Ministry of Justice, continued to meet and discuss activity to reduce the backlog. The CJB has now been reconvened and is monitoring progress to reduce the backlog.

The condition of the Crown Court estate may in future be a barrier to reducing the backlog; specifically, court buildings not being fit for purpose due to long-term underinvestment. Courtrooms are frequently taken out of action due to, for example, leaks or heating failures. In 2022, the MoJ estimated that 50% of Crown Court courtrooms were at risk of sudden closure at any time⁵.

MoJ and HM Courts & Tribunals Service have significantly improved their data and analysis since our 2021 report, ‘Reducing the backlog in criminal courts' but gaps in data on service users remain. 

At the time of our 2021 report, the MoJ considered the two main constraints to reducing the backlog to be the number of courtrooms and judicial capacity. Due to the introduction of Nightingale courtrooms, the MoJ no longer considers courtroom capacity to be a constraint on case disposals.

Notes to editors

This investigation in response to the Crown Court backlog reaching its highest ever level. This report describes what action the MoJ, HMCTS and other parts of the criminal justice system have taken to address the backlog of cases in the Crown Court. It examines:

• the scale, nature and impact of the Crown Court backlog;
• the MoJ's and HMCTS's understanding of the impact of actions to reduce the Crown Court backlog; and
• how the MoJ and HMCTS are attempting to manage the Crown Court backlog.

1. In October 2021, we reported that the Crown Court backlog started to increase in 2019 and was further exacerbated by the COVID-19 pandemic. Between 31 December 2019 and 30 June 2021, the outstanding caseload rose by 60%, from 38,030 to 60,784. At the start of 2021, disposals in the Crown Court had returned to pre-pandemic levels, and between March and June 2021 the backlog levelled off. During the second half of 2021 and the first quarter of 2022, the backlog decreased. From April 2022, at the time of the industrial action of the Criminal Bar, the backlog started to increase, exceeding the 30 June 2021 peak by 30 September 2022. The backlog decreased up to 31 March 2023, before starting to increase again. Between 31 March and 31 December 2023, the outstanding caseload increased by over 5,000, caused principally by high levels of receipts. By 31 December 2023, it had reached a new record high of 67,573, 78% higher than at the end of 2019 and 11% higher than at the end of June 2021 when we last reported on the backlog (pages 15&16, reference 1.6, Figure 2).
2. In October 2021, the MoJ set a public ambition in the 2021 Spending Review to reduce the Crown Court backlog in England and Wales from 60,000 then to 53,000 by March 2025 through its recovery plan. In the Spending Review 2021 settlement the MoJ secured an additional £477 million to support recovery across the criminal justice system, including helping reduce the Crown Court backlog which had worsened over the COVID-19 pandemic. It also secured an additional £644 million a year by 2024-25 to expand capacity across the criminal justice system, including meeting increased demand from the recruitment of 20,000 extra police officers. In September 2023, the MoJ increased its projections for the backlog to between 58,500 and 69,500, with a central projection of 64,000, by March 2025. (page 18, reference 1.8)
3. The number of older cases awaiting trial has increased sharply. The number of cases waiting for a year or more for trial, since their initial listing, has increased by 59% from 11,350 on 30 June 2021 to 18,045 on 31 December 2023 (an eight times increase from 2,259 on 31 December 2019). The number of cases waiting for two years or more has more than tripled from 2,045 on 30 June 2021 to 6,523 on 31 December 2023 (and more than 11 times increase from 555 on 31 December 2019). At 31 December 2023, 27% (18,045 of 67,573) of cases were more than one year old, an increase from 19% on 30 June 2021, and from 6% on 31 December 2019. (page 19, reference 1.9)
4. The mean average time has increased from 486 days in the last quarter of 2019, to a high of 703 days in the second quarter of 2023, before dropping to 683 days for the last quarter of 2023 (page 19, reference 1.9, figure 3)
5. There is consensus between the MoJ and legal professionals that much of the court estate is dilapidated due to long-term underinvestment, which means that courtrooms are frequently taken out of action due to, for example, leaks or heating failures. In 2022, the MoJ estimated that 50% of Crown Court courtrooms were at risk of closure at any time. While not currently affecting the rate of disposals, maintenance problems are expected to become more critical rather than less in the coming years. In August 2023, the government committed £220 million for the court and tribunal estate for essential maintenance and repair work of and to replace court and tribunal buildings, although this was a small fraction of what the HMCTS estimated in January 2024 was a £1 billion backlog of maintenance and repair issues. (page 46, reference 3.6)

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