Coronavirus and Criminal Justice

We all know coronavirus is changing everything and yesterday the Institute for Government published a report on what they think might be the effect on the criminal justice system. As with so much other high-level thinking, I'm always amazed how probation hardly gets a mention. How can this be? 

The criminal justice system

How government reforms and coronavirus will affect policing, courts and prisons

The UK criminal justice system is facing unprecedented court case backlogs and record prisoner numbers.

These joint pressures will be the result of delays to court hearings caused by the coronavirus pandemic, and the government’s plan to recruit an extra 20,000 police officers leading to an increase in the number of people facing criminal charges.

Published in partnership with the Chartered Institute of Public Finance and Accountancy, this report calculates that the prison population could rise to up to 90,000 – its highest-ever level – and possibly over 95,000 by 2023/24.

Prisons in England and Wales are already close to capacity, with cases of violence and self-harm increasing sharply over the last decade. The government’s pledge to provide 10,000 additional prison places is unlikely to be ready to meet the predicted rise in prisoner numbers, while an extra £250m a year of spending would be required just to maintain current levels of performance in prisons.

At the same time, the coronavirus lockdown has seen courtrooms closed for all but a small number of priority cases and jury trials are suspended altogether. This research shows that waiting times to hear cases could increase by more than 70% in the event of a six-month lockdown, with many defendants and victims forced to wait more than half a year for trials in the crown court.

This would result in the highest average waiting time ever recorded. To resolve this case backlog, the report calculates that the government would need to spend an extra £55m–110m a year for two years to run the necessary extra trials.

Summary

The police, criminal courts and prisons have been subject to deep spending cuts over the last 10 years and some aspects of performance have subsequently declined. The Boris Johnson government has promised more money, but its plan to increase the number of police officers by 20,000 will put pressure on other criminal justice services: more officers will likely require the courts to process more cases, and the almost-full prisons of England and Wales to house more criminals. 

On top of this, the criminal justice system will now have to manage the effects of the coronavirus pandemic. Some prisoners are being released early and guidance on police charging decisions has already been updated. Most starkly though, the crisis had led to an unprecedented restriction on the courts’ ability to process cases. Without subsequent additional spending, there will be bigger case backlogs – and therefore delayed justice – indefinitely. 

The spending review planned for this year has been delayed. But when it comes, policy commitments such as more police officers, combined with the effects of coronavirus, mean the government will need to provide substantial extra spending for courts and prisons if it wishes to deliver on its manifesto promise of ‘world class public services’. 

The impact of planned government policy on courts and prisons 

The government’s criminal justice reforms, most significantly the plan to increase the number of police officers by 20,000, will place substantial pressure on the rest of the criminal justice system. 

The scale of the impact will depend on how this increase in police officers affects the number of cases charged by police. Over the last few years, the number of charges per officer has fallen. This fall has been attributed to an increase in the volume and complexity of digital evidence; an increase in the severity of crimes; a fall in the capacity of the Crown Prosecution Service, which makes charging decisions alongside the police; and an increase in ‘non-crime’ demands on police time, such as mental health incidents.

In this report we model three scenarios for how police charging will evolve over the next few years, each of which has different implications for courts and prisons. Our main findings are: 

• In our ‘low demand’ scenario, charges per officer continue to fall at the same rate as they have since 2010. Under this scenario, the additional police officers would create little additional work for the courts and prisons – overall charges, and therefore court cases and the prison population, would be stable over the next four years. However, this would likely mean public and government disappointment at police performance, given the money spent. 
• In our ‘central demand’ and ‘high demand’ scenarios (in which charges per officer are stable and rise again, respectively), charges would increase. Both these scenarios imply a bigger impact for the crown court than for magistrates’ courts. The number of cases received each year by the crown court would – by 2023/24 – surpass 2016/17 levels under our central scenario. In our high demand scenario, cases received would rise close to their highest level since the turn of century.* 
• In both our ‘central demand’ and ‘high demand’ scenarios, the prison population would increase to its highest ever level – reaching over 95,000 by 2023/24 in the high demand scenario – and well beyond planned prison capacity. In both scenarios, a higher proportion of prisoners would be short term (that is, serving sentences of less than 12 months). Prisoners are more burdensome to look after when they first enter prison, so this would increase pressure on prison officers even further. 

The impact of coronavirus 

On top of existing government policies such as the 20,000 extra police officers pledge, the criminal justice system must now also handle the impact of coronavirus. 

It is already having an impact. The volume of recorded crime has fallen due to coronavirus and officers’ time has been partially diverted from investigating crimes to enforcing the government’s lockdown. The police workforce has also been diminished due to large numbers of officers taking sick leave or having to self-isolate. As a result, the number of crimes charged could fall substantially. But the ability of courts to hear cases is likely to fall even more dramatically as courtrooms are closed for all but a small number of priority cases, and jury trials have been suspended altogether. 

In this report we model alternative scenarios for the impact of coronavirus on the police and courts, to show how the criminal justice system could be affected: 

• Police – charging volumes fall by 0%, 20% or 40% for three or six months. 
• Magistrates’ courts – the volume of less serious, easy-to-process cases** falls by 25%, and other cases fall by 50%, 65% or 80% for three or six months.
• The crown court – the volume of jury trials falls by 100% in April, and then by 70%, 85% or 100%, and non-jury trial cases fall by the same rate as magistrates’ cases, for three or six months. 

Our scenarios show that coronavirus could create a major backlog of cases. If the shutdown of courts lasts for six months, our central projection is that waiting times would increase by 60% in the crown court (from an average of 18 weeks to 29 weeks) and stay that long indefinitely without further action. 

The government could try to conduct more hearings via video or over the phone. However, there are concerns that virtual courts, where defendants are not in the same room as the magistrates, judges and juries presiding over their cases, could result in unfair treatment. Justice delayed is preferable to justice denied, and the government should instead focus on reducing the backlog once the coronavirus crisis is over. If the government provided additional funding to enable the criminal courts to increase the number of cases processed back towards levels seen in 2015, waiting times could be cut back to pre-crisis levels within two years of the crisis ending. 

The pressure on prisons from coronavirus is quite different. A fall in court cases will lead to the prison population being smaller in the short term (by around 15% if the court shutdown lasts for six months), implying spare capacity. But there is also a high risk of the virus spreading in prisons, and prisons are under pressure as up to 25% of staff are on sick leave or self-isolating. As a result, the government is taking steps to further reduce the density of the prison population by releasing prisoners early. As the turnover of the prison population is quite high, any reduction in prison population will not last for long, especially if the courts take action to remedy the backlog. 

Implications for government spending 

Our analysis shows that the government will need to spend more on courts and prisons if it wishes to maintain their performance in the wake of the coronavirus crisis, and as the impact of policy changes such as additional police officers is felt. 

The pandemic has meant that the government’s spending review, which was due to set out government spending plans for the next three years, has been delayed. When the spending review happens, perhaps in 2021, the government needs to set out a plan for the criminal justice system as a whole – recognising the knock-on effects of each part of the system on the rest. 

It will also need to account for the impact of the decisions taken over the last 10 years, when spending on the police, criminal courts and prisons was cut faster than demand for any of these services fell. In the courts, an initial increase in backlogs and waiting times has been reversed in the last few years. 

But in prisons, levels of violence, poor prisoner behaviour and self-harm have increased rapidly. This means that the criminal justice system is entering this next phase in a weak position – even maintaining existing service standards will be difficult.

The spending envelope for public services that was set out by the chancellor Rishi Sunak at the budget in March 2020 implied much more generous spending settlements over the next few years for unprotected services – that is, those outside of health, schools, defence and overseas aid – than they have received since 2010. Based on those figures, we would expect spending on courts and prisons to increase by 10.5% in real terms between 2019/20 and 2023/24. 

Taking into account increases in demand and cost pressures from wage increases over the next few years, these settlements might just be enough (in the medium term) to maintain the performance of courts and prisons in our central demand scenario, if small efficiencies are made. However, in our high demand scenario, we estimate that the government would need to devote an additional £372m a year to the criminal courts and prisons by 2023/24 to avoid standards slipping. 

The government must also pay attention to the physical and human assets of the criminal justice system. Additional investment is needed in prisons to ensure there are enough places for growing numbers of prisoners. The government has pledged to build 10,000 additional prison places, but these are unlikely to be ready quickly enough to house the expected numbers of new prisoners – and previous governments have struggled to build prisons as quickly as planned. Recruiting enough police officers, judges, court staff and prison officers may also prove difficult, especially as the police and prisons may be fishing in a similar pool of applicants. 

Finally, to address the court backlog that will be generated during the coronavirus crisis, we estimate that the government will need to devote additional spending to the criminal courts for up to two years after the crisis: £55m–£110m per year for two years would be sufficient to clear the backlog in our central scenario and return waiting times to 2019/20 levels. This funding would need to be agreed outside of the spending review process if the government wishes to start reducing the backlog in this financial year.

The whole report can be found here.