Elena Papamichael comments on clearing the court backlog and moving away from mass imprisonment

Tuesday 15 November 2022

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The massive delays in criminal trials reaching court are now widely known. The government has sought to blame the Covid-19 pandemic for the backlog. The reality is that the government has deliberately underfunded the criminal courts system for many years.

The decimation of the criminal justice system has similarly cruel outcomes for normal people and does not necessarily save the public purse. Courts now hire hotels and other private venues to host criminal proceedings in what would have previously been accommodated in publicly owned court buildings that have now been sold off to property developers.

One major consequence of these policies has been that criminal trials are now routinely being listed in 2024. This means thousands of people, who are innocent until proven guilty, have their lives on hold for a disproportionately long time, often with restrictive bail conditions and restrictions on their ability to travel, work, and settle their immigration status. Many people are remanded in custody awaiting their trial far longer than is fair or reasonable, with their lives on pause, or worse.

The Criminal Bar recently went on strike due to the government’s failure to implement the Bellamy Review recommendations, including that an urgent 15% increase in fees was required “as the first step in nursing the system of criminal legal aid back to health after years of neglect”.

As part of the settlement, the Criminal Bar Association and Bar Council have committed to working with the government to reduce the courts' backlog. The fear is that too much emphasis will be placed on defendants pleading guilty at an early stage. Instead, we should be looking towards structural routes away from a punitive justice stem.

We must be incredibly wary not to drift towards the US justice system, which has already begun. This includes the privatisation of prisons; mandatory minimum sentencing and longer prison sentences each year. Every single year more people go to prison, and they go for a longer period, irrespective of national crime rates. The government has continued to introduce regulations and statutes that reduce the discretion of judges and ensure the prisons stay filled.

England and Wales have one of the highest rates of incarnation in Western Europe, and there are currently 82,000 people serving sentences. This is projected to grow to 98,700 by 2026. Approximately half the adult prison population are serving sentences for non-violent offending. The USA has the highest rate of mass incarceration in the world, and this has done exactly nothing to reduce crime or make the general population safer. 

Now is the time to consider and push for greater diversion and divestment away from the prison and justice system.

The Lammy Review recommends (recommendation 10) a deferred prosecution model to be rolled out for adults and young offenders, which provides interventions before pleas are entered (so guilt is not a prerequisite). Evidence shows that where similar schemes have been piloted, the victims were 43% more satisfied than those with cases sent to court. With an emphasis on restorative justice, and away from retribution and punishment, everyone wins.

Many of my clients have been on bail for two years and have not re-offended when they face trial or sentencing. Too often, spending public money putting them on trial and sending them to prison is not necessary, because they do not pose a risk to the public. A diversion from the justice system would save money, address offending, and help to protect the public. A prison sentence is a disposal from the court most likely to result in reoffending. Criminal convictions can make it impossible for ex-offenders to find work (despite many corporations willingly using prison labour), which increases the risk of further offending or reliance on the welfare state.

When we move towards a more humane justice system, everyone benefits - “tough on crime” policies increase inequality, instability and, ultimately, discordance and risk in society. 

Elena Papamichael is a member of the Garden Court Crime Team.

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