Written evidence from the Lord Chief Justice of England and Wales
1. The Committee has identified a number of particular issues it wishes to consider in
connection with court capacity and the impact of the Covid emergency.
Sitting days
2. The “sitting day” is the unit of currency which has been used historically to determine the
provision of resources in all jurisdictions. In particular, staffing levels follow sitting day
allocations. As is well known, in the two financial years leading up to April 2020, there
were very substantial cuts in the sitting days in the Crown Courts. During the course of
2019 it became clear that the volume of outstanding cases in the Crown Court was rising
and so additional sitting days were agreed by the Lord Chancellor at the end of 2019. In
Civil and Family, in broad terms, the sitting day allocation was designed to match the
likely availability of judicial resources, that is both salaried and fee-paid judges.
Volumes of work in both the County Court and the Family Court were increasing before
Covid engulfed the nation. Sitting days, or more accurately sessions, in the Magistrates’
Court, were adequate to deal with the volumes of work flowing through that court.
3. During the initial lockdown from March 2020, and in the months that have followed, the
position in all jurisdictions is that as much work as it has been possible to do consistently
with social distancing and available technology, has been done.
4. The Lord Chancellor and I have agreed that sitting days are not a constraint in any
jurisdiction for the remainder of this financial year. My expectation is that the same
position will be agreed for the next financial year. That means that if there is capacity to
deal with cases, they will be dealt with without regard to sitting days.
Capacity 5. The capacity of the courts, in each jurisdiction, depends upon a range of factors which
together contribute to the ability to dispose of business.
Physical Capacity
6. There is the physical capacity of our court estate. This receives a good deal of attention
but is only one of a number of important factors which bear upon capacity. The increased
use of technology to enable some hearings to be conducted with all participants attending
by phone or online video link, or some of those participants, enables courts and hearing
rooms to be used which, because of their size, would be unsuitable for physical hearings
given the need for social distancing. That said, it is not only the suitability of court rooms
that has an impact on capacity. In all courts there is the wider question of general
footfall. Social distancing must be maintained in the public parts of courts and in the
facilities available for parties, their lawyers and witnesses. In the criminal courts,
particular difficulties with social distancing in the cells coupled with necessary legal visits
present acute problems. In all the court buildings, local steps have been taken, often
through physical adjustments, to enhance the number of court rooms that can be used
with precautions being taken in the public parts. For example in some locations
portacabins have been used. As this memorandum is being prepared, HMCTS are on
course to achieve the goal set out in their recovery plan1 for the Crown Courts to have
250 courtrooms available to hear simultaneous Crown Court trials. HMCTS plans to
equip a further 40 or so courts for Crown Court trials over the next few months in
addition to a number of ad hoc courts being established outside the current estate.
Physical capacity is thus a significant issue in the Crown Court for trials, particularly for
multi-handed cases where defendants are in custody. In the Family and Civil courts the
1 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/896779/ HMCTS368_recovery_-_COVID-19-_Overview_of_HMCTS_response_A4L_v3.pdf physical capacity of the courts is not presenting immediate problems, neither is it in the
Magistrates’ Courts save for the capacity of cells.
Judicial capacity
7. In all jurisdictions, work is increasing. Our expectation is that work in the Criminal, Civil
and Family jurisdictions will continue to increase for the foreseeable future. The system
faces an acute problem in dealing at the same time with increasing demand and
accumulated backlogs which result from Covid. In each of the jurisdictions the judicial
resources are made up of salaried judges as well as fee-paid judges. In the Magistrates’
Courts there are salaried judges, fee-paid judges as well as the body of magistrates.
8. In both the Magistrates’ Court and the Crown Court, the best estimate is that there will be
sufficient judicial resources to deal with the cases for which we have physical and staff
capacity in the foreseeable future. For the last two or three years it has not been possible
to offer Recorders more than their minimum sitting and even that has been difficult. We
expect to be able to provide Recorders with more sitting opportunities. To recover
backlogs in the Crown Court the fee-paid Recorders will be a vital resource.
9. Similarly, in the Magistrates’ Court, the District Judges (Magistrates’ Court) can be
supplemented by increased use of fee-paid deputies. Our experience is that the
magistrates have been keen to keep sitting. In addition, there is something of the order of
1,000 new magistrates who have been appointed and are in the process of being trained.
They will provide additional judicial capacity.
10. The position in the senior courts (the High Court and Court of Appeal) presents no
difficulty with judicial resources. The same is not true of the Family and County Court.
As the Committee knows well, the District Bench is well under-strength. The last two
competitions have not provided as many judges as were needed. Large numbers of deputy district judges have been appointed (over 300 in 2019, and over 100 in 2020). The
latest recruits are still undergoing training. Last year’s cohort is gaining experience.
11. The District bench, and the deputies, provide the main judicial resources for both the
County Court and the Family Court. It will be necessary, in the short term, to encourage
deputies to increase their commitment to sitting to deal with the new and outstanding
cases in both jurisdictions. Our hope is that the current competition for the District Bench
will deliver a larger number of candidates for appointment next year. Additional deputies
will be sought. But in the meantime there will continue to be pressure on judicial
resources in those courts which could well have an impact on capacity.
Staff capacity
12. I have indicated that the HMCTS headcount for support in the courts is dictated by sitting
days. It follows that even without the pressures of Covid, if the volume of work in all
jurisdictions continues to increase, there will be a need for additional staff to support the
hearings. Furthermore, the expansion in the use of online video hearings of one sort or
another calls for additional staff support to set them up.
13. The need for additional staff to support recovery in all the jurisdictions has been
recognised not only by the judiciary but also by HMCTS and the Lord Chancellor. The
Lord Chancellor secured additional funding to recruit 1600 new court staff. That is
taking time and, inevitably, new members of staff may not immediately be able to
undertake all the tasks necessary.
14. At a local level, difficulties continue in some parts of the country in setting up online
hearings and otherwise having sufficient staff to support hearings. Running court
buildings in compliance with social distancing guidelines calls for additional staff.
Increasing the through-put of cases in all jurisdictions is vital to recovery and will only be
possible if a sufficient complement of HMCTS staff is available to support them. Other participants’ capacity
15. The capacity of the courts to deal with cases depends not only upon the physical space to
do so, judicial resources and the availability of staff but also the capacity of others whose
involvement is necessary. For example, dealing with increased volumes of cases, or
conducting cases with the assistance of technology, depends upon the ability of others to
play their part.
16. This is perhaps most obvious in the criminal context. Major players include the Crown
Prosecution Service, defence lawyers, the police, the Probation Service, and also the
prisons. The capacity of prisons to enable prisoners to attend hearings remotely and for
their lawyers to speak to them remotely is critical. So too is the ability of the CPS, and
other lawyers and the police, to attend hearings remotely.
17. An insight into the importance of such relationships comes from our experience of video
remand hearings. Long before Covid, pilots were running in some parts of the country
which enabled remand hearings in the Magistrates’ Courts to be conducted with the
defendant at the police station. Following lockdown, to their great credit, every police
force in England and Wales enabled remand hearings to be conducted remotely with the
defendant remaining in the police station. This enhanced public safety and enabled very
many more cases to be dealt with in a given session than would have been possible had
the defendants attended. That freed up the Magistrates’ Courts to deal with other work.
The police forces of England and Wales have decided unilaterally to withdraw that co-
operation for reasons of their own. That decision, being implemented on a force-by-force
basis, will disrupt the operation of the Magistrates’ Courts and reduce the throughput of
work. It is doing so already in the areas where the decision has been implemented. I am
deeply disappointed that the decision has been made and hope yet that the intervention of
ministers might reverse the position. 18. In the Family Court, when dealing with care cases, the ability of CAFCASS and local
authorities to take part, as well as other parties including family members, in the difficult
circumstances that they face, feeds into questions of capacity and the ability of the system
to cope with increased volumes of hearings.
Funding
19. The Lord Chancellor has secured two additional tranches of money from the Treasury
during the Covid emergency. In particular, money has been agreed to support the
additional staffing to which I have referred, and also to pay for the rapid rolling out of
technology to support hearings. Many courts had long conducted telephone hearings for
procedural matters and the use of video was well established in some courts. That said, it
is remarkable to reflect that most judges were not equipped with telephones that could
handle conference calls before Covid struck. That was put right very quickly. Video
hearings could be conducted in a small number of courts, but during lockdown judges in
all jurisdictions quickly moved to using commercially available online platforms. The
Cloud Video Platform was being piloted in a number of courts before Covid. That has
now been made available across jurisdictions and has contributed to the capacity of our
courts to deal with work over the last few months. A better system was under
development as part of the modernisation programme. That work is still underway but
will need continued financial support from the Treasury through the Ministry of Justice.
20. The experience in all jurisdictions has been that where the modernisation programme has
been most advanced, the courts in question were better able to weather the initial storm.
In particular, those courts which were digitised were better able to cope.
21. As Covid struck, the programme to digitise the public law work in the Family Court was
about to start. It had to be paused but is now underway. The County Court remains a
paper-based court – something which is quite astonishing in 2020. 22. Alternative Dispute Resolution (ADR) has proved to be very successful in the Civil and
Family courts. The increased investment in ADR has encouraged the early resolution of
cases which in turn will increase capacity.
23. The Reform Programme must be completed. The Ministry of Justice is in the process of
securing the next tranche of money from the Treasury. To my mind, it is unthinkable that
there can be any question other than that the programmes under development must be
seen to their conclusion.
November 2020