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  • Danny Shaw

Justice: why the delay?


Monday October 31 should have been the day.


The day when a crown court jury was sworn in to try a man in his 30s accused of raping a girl half his age. It had taken five years to get to that point.


But on that day the trial did not go ahead. It has been postponed until 2023.


The reasons for the investigative and legal delays in this long-running case, details of which I have anonymised because it is still continuing, are complex - and certainly worthy of review after it eventually concludes. But they appear, at least in part, to reflect the cumulative impact of failing properly to fund each element of the criminal justice system.


Pressures on resources


When the allegation was reported, in October 2017, police investigation teams across England and Wales were under severe strain after seven years of budget cuts. Officer numbers had fallen by around 20,000 and there was a national dearth of detectives. Over the same period, there had been a surge in recorded cases of sexual offences which had placed additional pressure on specialist units. In this rape case, it took police three-and-a-half years to complete their inquires and pass a file of evidence to the Crown Prosecution Service (CPS) for a charging decision.


Problems in gathering 'third party' evidence, the outbreak of Covid in March 2020 and changes in police personnel are believed to have been additional factors in slowing things down, but it is still hard to explain why the investigation lasted as long as it did. The girl had provided a video-recorded account early on and the suspect had been quickly identified, arrested and questioned.


The CPS, which also suffered damaging funding cuts, took several months to review the evidence before announcing charges late last year. By that point, four years after the allegation had been reported, the criminal courts were facing a crisis of their own. A backlog of cases (hearings and trials yet to be completed) had begun to build up mainly due to court closures and government-imposed limits on the number of days judges could sit, a move intended to save money. During the pandemic, with rules on gatherings, travel and social distancing delaying or halting hearings, the backlog grew to around 60,000 in the crown courts. The rape case should have been a priority, but it had to take its place in the queue.


Over the summer, there was a 'Section 28' hearing - where the alleged victim was cross-examined on video. It should have happened far earlier in the legal process but at least it went ahead: everything was now in place for the trial to start on October 31.


Then, at the last minute - a problem.


The judge who had been assigned to the rape trial was suddenly not available because a separate trial he was presiding over that was meant to have finished was over-running. So, could the rape case be delayed for a week? No. A key witness couldn't attend and the prosecutor wasn't free either because, ironically, she was due to be working elsewhere as a part-time judge, known as a recorder.


Another option was for a different judge or recorder to take on the rape trial. A call went out but no one with the necessary training and expertise - a sexual offences 'ticket' - could be found. The only alternative was to push the trial back. It's now scheduled to begin in February.


A shortage of judges and lawyers


This month, Lord Burnett, who as the Lord Chief Justice is the head of the judiciary in England and Wales, sounded a warning about court delays and backlogs. He told the Commons Justice Committee that a shortage of judges was now the main problem; the most recent recruitment round had fallen 16 short of its target.


"Given each judge sits about 200 days a year, that is quite a significant hit on capacity, and also a significant hit amongst the more experienced judges who can do the most difficult cases," he said. Recorders are being asked to to sit more often to fill gaps, but as they are predominantly drawn from a pool of experienced barristers that, in turn, is shrinking the number of suitably qualified defence and prosecution counsel who are available for complex and sensitive cases, such as rape.


"The problem, as it seems to me, with a legal community that has been subject to attrition over many years, is that it is not possible simply to flick a switch and magic up hundreds or thousands of criminal lawyers, and so that is a problem which I fear may be with us for some time," the Lord Chief Justice said.


Getting worse?


Rape cases are among those worst affected by delay. Data supplied by the Ministry of Justice (MoJ) in a Parliamentary answer show that in 2019 it took an average of 808 days from an alleged rape to the case being concluded, that's almost two years and three months. In the first nine months of 2021, the average had risen to 1,020 days - two years and ten months. There were 576 rape cases which had yet to be resolved a year or more after being referred to a crown court, almost seven times as many cases as in 2019.


The Government has introduced a series of measures to improve the way rape allegations are handled by police forces, the CPS and the courts, with 'scorecards' published every three months to monitor performance. Although prosecutions are on the increase, surpassing levels in 2019, the initiative is having little impact on reducing overall delays. The figures, calculated differently from those outlined above, start the clock from when an adult rape offence is recorded by police. In April to June, it took 342 days until a suspect was charged and an additional 380 days for a case to go through the crown court - around two years in total. In 2019, it was less than 18 months.


One principal aim of the rape strategy is to increase the number of rape prosecutions to what it was in 2016. On present levels, that will require a 33 per cent rise in charges. Will the courts be able to manage that kind of caseload? Or will it lead to even longer legal delays given how stretched resources are already? In one significant exchange at the Justice Committee, Lord Burnett pointed out that the volume of all crown court cases is currently between ten and 15 per cent lower than it was before the coronavirus outbreak. "It is something that causes me concern, verging on worry, that if those volumes picked up again it would present the system with really powerful problems."


Impact


In the rape case that failed to go ahead on October 31, the impact of the delays on the alleged victim, who is now in her 20s, is hard to imagine. When she notified police in 2017, she can surely never have believed that the criminal justice process would drag on for so long. It is unfair on the defendant too, particularly if he is acquitted: he will have spent over five years living under the cloud of one of the most serious accusations that can be levelled against anyone. And the delays raise wider concerns about how the public can be protected from people who have not been tried or convicted but who may pose an ongoing risk.


One of the most famous legal maxims is "Justice delayed is justice denied," a phrase widely attributed to the 19th century prime minister, William Gladstone. Our 21st century legal system is unrecognisable from what it was then, but that adage has never felt more appropriate.

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