The year 2020 was a “time of two halves” for Edward Cooke, who runs a specialist family law practice in Sussex. As the UK locked down on 23 March and people were preoccupied with the pandemic’s daily challenges, the flow of work slowed down for many firms like his.
However, the government’s instruction to “stay at home” began to bring pre-existing relationship problems “to the fore”. As lockdown dragged on, the work built up.
Cooke – a family lawyer of 21 years and member of the national committee of Resolution, which represents nearly 7,000 family law professionals – said his firm was three times busier in June to October last year than in the same period of 2019.
With the pandemic “magnifying” some families’ disputes, the family courts have struggled to keep up. Courts switched to remote hearings in the spring, and from the summer there were “hybrid” hearings too (with some parties present, and others dialling in). Despite the best efforts of judges and court staff, some clients are experiencing long delays as courts adjust to these changes and limitations.
Families in dispute sometimes have to “wait months” for justice. Last September, one of Cooke’s cases involving an “urgent children matter” had a hearing listed for six months later.
“It can be tremendously damaging for families if people can’t get their cases before the court,” says Cooke. “If you’re waiting six months and there’s still ongoing conflict, there needs to be a resolution – the human impact of that is not just on the parents but on the children.”
Dragging out domestic abuse cases in particular can be dangerous: “These cases need to be resolved quickly because otherwise families suffer, and children continue to be exposed to conflict and harmful situations.”
[See also: Why the government can’t blame the crisis in our courts on Covid-19 alone]
These delays are heightened by the pandemic, Cooke says, but are also the legacy of an “overstretched and underfunded” justice system, after ten years of legal aid cuts and court closures.
In the criminal courts, justice is being delayed even further. By late December there were an estimated 54,115 crown court cases outstanding in England and Wales – the highest number since 2014.
The backlog in magistrate courts peaked at a record 420,459 at the end of last June, having hovered below 300,000 since 2017, and has started to decline slowly in recent months.
Limited space and a reduced staff mean courts have to decide which cases are heard. Some cases are being postponed to 2023 – including sexual violence and domestic abuse cases, which are supposed to take priority.
“We are really struggling to see in practice the prioritisation of higher harm cases,” says Rachel Almeida, assistant director of knowledge and insight at the charity Victim Support.
One example is of a grooming gang that has already been under investigation for two years. The trial has been delayed for a further two years. Another is of a rape reported in 2019, which is now listed for trial in 2023.
Charlotte* works in witness care for a police force in the south-east of England. Court delays constitute most of her job.
“Once lockdown started easing over the summer, people were getting agitated: ‘Why can’t I go to court if I can go to the pub or whatever?’” she says.
“[My job] is basically giving people bad news constantly, and trying to comfort them and give them answers when there are none. We’re having to explain to all the victims and witnesses that their case can’t go on. And they ask: ‘Why not? Why is mine less important than someone else’s?’”
The impact of trial delays on victims of crime can be severe – even life-threatening. “We have had instances, in cases of sexual violence, where we’ve had people wanting to take their lives the day they’re told they have to wait another year,” says Almeida.
In one domestic abuse case, which has been put off for many months, the victim is not allowed access to their children until the case concludes. They are unable to prove they can provide a safe environment for their child without going to trial to prove the offender was to blame.
“So every few months that it’s delayed, that child is in care,” says Almeida. “I cannot emphasise enough how much people have put their lives on hold.”
Court delays are leaving some victims of abuse and violence “living closely alongside their perpetrator”, says Leni Morris, CEO of the LGBT+ anti-violence charity Galop. “We are seeing cases of that abuse and violence continuing while those trials remain postponed.”
One victim of a homophobic and transphobic attack in May 2019 had their court date – scheduled for summer 2020 – cancelled at the last minute, twice, because of “complications around social distancing”.
A survey by the charity Victim Support found that around 89 per cent of its staff have seen a negative impact on victims’ mental health as a result of the delays. Around 77 per cent of staff said the delays had affected victims’ confidence in the criminal justice system, and 64 per cent raised concerns about victims’ sense of safety.
There is a reason for the maxim “justice delayed is justice denied”. Court delays don’t just slow justice down – they reduce the likelihood of it ever being served.
There have been anecdotal reports of an increase in police encouraging victims (including those of domestic violence) to pursue civil resolutions such as non-molestation orders rather than use the criminal justice system, according to Almeida. She also hears that police are encouraging offenders facing lesser charges to accept them, for an out-of-court disposal.
“It basically means you don’t get the justice that you would have had if it weren’t for the backlog,” she says.
Victims and witnesses are also, increasingly, dropping out of the process because of long waits.
“We are seeing some clients withdrawing entirely because they can’t cope with further delays, meaning that perpetrators may not be brought to justice,” says Morris.
Figures reported by the Daily Mail show that 2,308 cases were ended because of “complainant issues” – victims retracting, withdrawing or not attending their cases – in the three months ending 30 September: up from 1,292 in the previous three months.
“We’re seeing specific cases being put back two or three times, and it’s the day before, or they’re literally in the court building, and [victims] are told it’s not going on,” says Almeida. “By that time, you’ve lost them. It’s really difficult to keep people engaged when they feel messed around.”
Charlotte has had victims withdraw and cases collapse. In one recent case, the young victim’s mother threatened to back out because the delay was “devastating”. “She said, ‘I’m not putting my daughter through this, again, and I can’t delay it any longer for her.’”
Victim or witness attrition is not the only reason for cases being dropped.
“There are early indications that cases have been discontinued because, due to the length of time the accused is on remand as a result of trial delays, there are concerns around abuse of process ,” Almeida says. “We know of at least one judge who’s discontinued a case.”
Indeed, suspects are being held in remand prisons far longer while awaiting trial. If they have not been convicted they are legally innocent, but are being held over the usual six-month limit, says Griff Ferris, legal and policy officer at Fair Trials.
Although the data is not held by the Ministry of Justice (MoJ) or Crown Prosecution Service (CPS), Ferris’s surveys of defence lawyers find that custody time limits are being extended “as a matter of routine” and “may as well not exist”.
“The remand population is usually around 8,000 people but it’s now 12,000 – a record high,” he says. At present, more than one in seven people in prison has not been found guilty of a crime.
Again, the pandemic is not solely to blame for the delays. “There was a backlog of 40,000 cases before the pandemic started in March. It’s now over 50,000, so it’s a pre-existing problem that was exacerbated by the pandemic,” Ferris says.
Conditions for people in prison on remand have worsened during the pandemic, as they have for the wider prison population.
In attempts to stop the spread of coronavirus, prisoners have sometimes been in their cells for longer than 23 hours a day: 42 per cent of prisoners reported they experienced less than an hour a day outside their cell between July and December 2020.
Other rights for those awaiting trial have also been withdrawn. Remand prisoners are usually entitled to three one-hour visits per week, but under social distancing rules they are allowed none.
Courts and tribunals are continuing during lockdown. Telephone, video and other technology is being used to hold a number of hearings remotely. Where this is not possible, such as in jury trials, efforts have been made to make court buildings “Covid secure”.
At the time of writing, 22 temporary “Nightingale courts” have been opened across England and Wales in buildings such as libraries, theatres, town halls, hotels and even in the grounds of a cathedral. But this has not made up for the past decade of court closures and justice system cuts, let alone the disruption caused by the pandemic.
The family lawyer Edward Cooke campaigned for four years to save his local county court in Chichester from the cuts; he succeeded in saving some “basic court provision” at the district council building. Ironically, says Cooke, this county court became the first Nightingale court in England last July, with the MoJ rediscovering the need for meaningful court provision in the area.
“Perhaps the MoJ are recognising they went too far, because they’ve had to open up significant numbers of Nightingale courts around the country during the pandemic, and the reason for that is partly that they went far too far in their cuts,” he says.
A January 2021 report from the four inspectorates for policing, prisons, probation and prosecutions raised “grave concerns” about the longer-term impact of Covid-19 on the criminal justice system and called for additional government funding to help solve the problem.
It warned:
“The significant backlogs in the Crown Court in particular, and the ripple effects these are having on all parts of the system are problems which must be tackled now… these backlogs, if not dealt with, will create and maintain severe delays and inefficiencies in the system for years to come.
“The Criminal Justice System in England and Wales was already excessively fragmented and under-resourced. It will be unable to manage this significant challenge without considerable resourcing, planning and joint work.”
For Charlotte, the delays are continuing. “I’m working on one case where a death was involved,” she says. “[The trial] was meant to be in July but got adjourned: the family were devastated, but they understood. It’s now got a new date for the start of March.
“I’m really worried that it won’t be able to go ahead again, and I don’t know how they’ll cope.”
*Names have been changed on request of anonymity.
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