Kent Law School’s Dr Antonia Porter has been exploring part 1 of the Independent Review of the Criminal Courts, chaired by Sir Brian Leveson.
Sir Brian Leveson has had a formidable legal career.[1] And, having already conducted a ‘Review of Efficiency in Criminal Proceedings’ in 2015, he was well placed to undertake the almighty task set by the Lord Chancellor last December; to publish a report the following Spring proposing how best to tackle the criminal courts cases backlog and thereby deliver swifter justice for victims. Part 1 – The Policy Review – was published in July.
The problem
Undeniably, the Criminal Justice System is in crisis. Crown Courts in England and Wales have an ‘open case load’ [read backlog] of some 75,000 cases, which is more than double than it used to typically average. Reports of jury trials being listed for 2029 (four years hence) are indicative. These figures are not a temporary blip in the system, nor can they be attributed to a build-up over lockdown (after all whilst it’s right that trials could not proceed during that period, it’s also right that substantially fewer crimes were being brought into the system). In fact, these figures have been growing progressively for over a decade and the trajectory looks set to continue.
One explanation for the delays might include the 2010- 2019 period of austerity that inflicted 30% budgetary cuts across the system. The cuts led to, amongst other things, court building closures, fewer prosecution lawyers, and reduced legal aid meaning that more defendants are self-represented. Also contributing to delays are increased volumes of digital evidence extending trial preparation times and trial duration. There are also now higher numbers of sexual offences reported (particularly following Saville) and there has been barristerial industrial action to highlight the current reality. Any resulting drop in public confidence in the system carries significant rule of law implications.
Whilst the delays may be cited as both a consequence and a symptom of the backlog, quick fixes such as offering defendants significant sentence reductions for early guilty pleas would not address the inevitability of a renewed build-up of cases, even if it temporarily cleared them. Leveson explicitly acknowledges this; there are simply more receipts than disposals in the system. We have fewer sitting courts, fewer judges and fewer legal representatives processing lengthier trials. We also have fewer guilty pleas (some not guilty pleas are reportedly entered in the hope that the victim waits so long for trial that their commitment to the process wanes), more administrative pre-trial hearings, and numbers of ‘cracked trials’ (guilty pleas on the day of trial) have increased.
For those reasons, Leveson is looking for long-term solutions to future-proof the system. What has changed since his last review in 2015 is that Leveson is no longer restricted to making proposals that do not require legislative change. In 2025 the government permitted Leveson to make proposals that could impose wholesale structural system reform, together with any accompanying amendments that would be required to primary legislation.
Leveson and his assistants gathered 30 independent civil servants to conduct outreach; they reviewed written submissions from 238 criminal justice partners; consulted in-person during 230 meetings to understand the procedural problems; and carried out extensive court visits. Their liaison with The Bar was iterative in order to produce a set of refined recommendations. His Majesty’s Court and Tribunal Service and the Legal Aid Authority acted as advisors.
Leveson’s team noticed regional diversity. For example, in Liverpool, the backlog is not detectable. This is a city that has one police service, one court centre, one CPS area and consequently there is a collaborative capacity between all agencies working there. Liverpool, according to one of Leveson’s assistants, has much from which the rest of the country could learn.
Proposed Solutions
It came as no surprise that the proposed solutions in Part 1 of the report were designed to reduce the number of cases taken to the Crown Court, to increase case disposals in the Magistrates’ Court, and to encourage guilty pleas thereby stimulating procedural efficiency and incentivise the art of resolution (including through early engagement between the prosecution and defence).
More specifically, Leveson proposes a new division within the Crown Court to be called the Crown Court Bench Division (CCBD). The CCBD would hear either-way offences likely to result in sentences of three years or less but that are too serious for the summary courts. CCBD cases would be tried by a judge and two magistrates, without a jury.
Further, it is proposed that serious and complex cases be tried by a Judge sitting without a jury. But in addition to those matters, Defendants in the Crown Court would also be permitted to elect a juryless trial, subject to the trial judge’s consent.
Either-way offences that carry no more than a maximum of two years imprisonment, would no longer be heard in the Crown Court; the mechanism by which a defendant could elect to do so would be removed. Moreover, some either-way offences would be re-classified as summary-only, meaning that the magistrates’ court would be the only venue which could hear them. Magistrates’ Court sentencing powers would be set permanently at 12 months (as opposed to 6).
Cautions, community resolutions and deferred prosecutions are to be encouraged. Such out of court disposals would obviously reduce numbers entering the courts. Significantly, adjustments to the Legal Aid regime would be designed to reward solicitors who advise that early guilty pleas be entered.
Discussion
As noted, this is only Part 1 of the review. Part 2 – the Efficiency Review – will be published later in 2025; it will consider how the use of technology and AI in courts, inter-agency collaboration and the estate infrastructure might all be used to streamline the process. Some, however, have expressed concern that the reports are being published in this order. As, even if the Part 1 – Policy Review – proposals are workable as many legal professionals appear to accept, if productivity and efficiency can be improved by means other than a complete structural overhaul of the system, might the proposals in Part 1 be needed at all? After all, civil libertarians that have expressed concern at the prospect of fewer jury trials are not, perhaps, without cause.
Antonia is convening Contemporary Issues in Criminal Justice for postgraduate law students in 2025/26.
[1] Leveson was called to the Bar in 1970 and attained silk in 1986. After sitting as a Recorder, he became a Judge of the High Court, Queen’s Bench Division in 2000 and President in 2013. He was appointed as the Investigatory Powers Commissioner in 2019.