Court reform

Crown Court backlogs: how would case increases impact practitioners?

Senior solicitors have told us they’re concerned about workload and finding advocates if criminal cases increase, as the pandemic backlog stretches a justice system already in crisis.

Going into the pandemic, the backlogs in the Crown Courts approached 40,000 cases.

The National Audit Office (NAO) found that the Crown Court backlog increased by 23% in the year leading up to the pandemic, increasing by a further 47% since the onset of it.

Read the NAO report

The declining capacity in the profession makes it highly challenging to meet the increased demand brought on by the huge backlogs.

In late 2021, we asked members how an increase in Crown Court cases would impact their firm's ability to manage workload and secure advocates.

Capacity of criminal legal aid

In November and December 2021, senior criminal law practitioners were asked for their views on the impact of potential increases in cases going to the Crown Court to reduce the current backlog.

Practitioners were asked specifically about their firm’s ability to manage workload and secure advocates, and what approach they would need to manage such increases.

152 senior practitioners took part in the survey.

The survey found:

  • strong evidence of limited additional capacity within solicitor firms should volumes increase
  • a substantial proportion (39%) of firms predicted they would struggle with securing advocates were cases to increase by 10%
  • a further 77% of firms would struggle with a 20% increase and 83% would struggle were case numbers to increase by 30%
  • workload would become a far more significant issue if case numbers rise by 20%

Firms reported that the difficulties presented by the pandemic had stretched a system already in crisis.

Firms cited existing issues with court listings, with courts closing, restrictions on the number of sitting days and trials being adjourned at short notice.

Systemic underfunding of criminal legal aid defence solicitors has led to:

  • difficulties in recruitment and retention at all points within the system,
  • fewer solicitors choosing criminal legal aid work due to lower earnings, and
  • longer hours associated with the job

Experienced staff were reportedly being lost to the Crown Prosecution Service (CPS) which offers higher salaries and more social hours, and suitably qualified advocates sitting as recorders to cover the backlog as the Court reduced the number of judges.

“Unfortunately there are no judges, clerks, legal advisors or solicitors to man those courts because those who die or retire have never been replaced.”

See our map of shortages of criminal duty solicitors

How firms plan to manage the increase

Working longer hours was the most cited approach to deal with the increase in cases (41%). However, some firms were already working long hours.

Just under 30% of responses related to recruitment – of new litigators (12%), new support staff (10%) or new advocates (7%).

Views were mixed on whether this is a short or long-term issue.

For those seeing it as a short-term issue, taking on new staff or paying extra to existing staff is not financially viable as it would increase overheads and result in costly redundancies when the courts return to capacity.

Firms mentioned difficulties in recruiting due to the low renumeration rates and a lack of available talent:

“We have tried but failed to recruit additional staff, either qualified lawyers or support staff. There are no new lawyers entering the job market willing to undertake this work, due to the long anti-social hours and difficult nature of the work and poor financial rewards. We cannot afford to take on new support staff as their salary expectations are higher than we can afford at legal aid rate so we are unable to compete with the public sector.”

“We are already struggling financially after years of reductions in fees and the pandemic. We cannot afford to recruit.”

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