A perfect storm: why the criminal justice system is facing an existential crisis

Modelling the impact and legacy of Covid-19


Callyane Desroches, Strategy and Insight Manager

Friday 30 October 2020


REPORT (PDF): Impact and legacy of Covid-19 on the CJS: Modelling overview
PRESS RELEASE (PDF): A perfect storm: why the criminal justice system is facing an existential crisis
ASSUMPTIONS: A perfect storm: why the criminal justice system is facing an existential crisis
RESPONSE: A perfect storm: why the criminal justice system is facing an existential crisis

The context: a criminal justice system that was already under pressure

The criminal justice system entered the current Covid-19 crisis with a number of longstanding problems. It was underperforming against virtually every measure: police charge rates had halved since 2014 (from 17 per cent to 9 per cent), court timeliness was at record levels (with the average case taking 98 days from first listing to completion in 2019), and reoffending rates remained stubbornly high with over a quarter of all offenders reoffending[1].


As a result, the system was already ‘running hot’, with an estimated backlog in the courts[2] of c.104,000 cases in March 2019, and prisons and probation operating at full capacity. As our new analysis reveals, Covid-19 has poured rocket fuel onto an already combustible problem. Combined with longstanding legacy issues, rising crime and the police uplift, it has left the criminal justice system (CJS) on the brink of a ‘tipping point’, beyond which it may cease to function in any meaningful sense.



What we did

As part of our research into the impact of Covid-19 on the justice system, Crest has developed a ‘stock and flow’ model that looks at the CJS as a whole, focusing on nine major categories of offences, excluding summary offences and fraud, over the time period of 2014 to 2024.


The model tracks how major offence cases flow through the CJS and the impact on the ‘stock’, projecting the impact on capacity and/or outcomes ‘flow’, based on the criminal justice system illustrated below. Further detail is provided in the report.



A high level model of the criminal justice system

Clearly, any model comes with important caveats. While Crest’s model is based on published data, we know that some of that data is itself imperfect and the operating environment is clearly subject to significant uncertainty. However, we are confident that the methodology outlined above - taking into account the dynamic effects of different individual factors and how they interconnect - provides a degree of assurance to the findings and therefore means these scenarios are plausible. Furthermore, we have tested the model which projects data that is coherent with historically recorded data. Further detail on the planning assumptions can be found in the main report.


The purpose of the model is to support a conversation about the scale of the impact of the Covid-19 crisis on an already struggling CJS and about what investment and reform is required to maintain a functioning system.



What we found

Strong headwinds were already putting pressure on CJS capacity, even before Covid hit. The courts’ backlog (defined as all cases waiting to be listed all the way to waiting for sentencing in the court system) was already significant before the pandemic (104,000 cases). Our modelling also takes into account the following:

  • the long-term rise in police recorded crime

  • the uplift in police officers, which is likely to increase sanction detection levels

  • the long term impact of Covid-19 on unemployment, which will in turn push certain types of crime upwards

  • and the current time frames for dealing with cases at court that are baked into the system.


Without any further action, the court backlog – defined as all cases waiting to be processed in the courts – is projected to rapidly increase and reach an unmanageable level by 2024. Based on modelling of the main nine categories of indictable and triable either way offences (excluding fraud and summary offences), the Crown Court backlog is projected to quadruple by 2024 and the magistrates’ court backlog is projected to increase by 10 times. This poses a huge risk to public confidence, procedural fairness and effective enforcement of the law.



Projected Crown Court and magistrates’ court backlog


The Ministry of Justice has emphasised its efforts to rebuild court capacity, which shrank when the pandemic hit due to the need to socially distance, primarily through Nightingale Courts. However, our modelling suggests that court capacity would need to double merely in order to stabilise the backlog (i.e. stop the number of cases from growing). And even then, the backlog would still be more than twice as large (x2.3) as the pre-Covid backlog.



Projected Crown Court and magistrates’ court backlog if court capacity doubles from a 2019 base level



Increasing court capacity is one lever that needs to be pulled, but will not be sufficient on its own to solve the problem. To achieve equilibrium, there will be a need to reduce the flow into the courts and improve the timeliness of cases.



What does this mean for policy?

We will be saying more about the policy implications in our final report, but the modelling findings above do suggest a clear direction of travel.



The need for a whole system approach


Interdependencies in the criminal justice system are such that improving performance in one area can result in pressure on downstream agencies that quickly becomes unmanageable. For example, our model shows that, if court capacity is doubled and equilibrium is achieved in the courts, the prison population will then increase by 34 per cent by 2024. This would present a huge challenge to the current custodial estate (since it is already at full capacity). Crest has calculated that there would be an excess of 15,000 prisoners by 2024 who would not have a prison place, despite the current 10,000 place increase programme currently underway[3].


Yet this has never been fully reflected in government policy, which continues to operate on the assumption that the CJS is a series of separate agencies, rather than an interdependent system. Institutional silos established in Whitehall are played out in the way services are delivered within communities.


That is one of the reasons Crest backs the idea of greater devolution over justice policy to locally elected leaders, whether they be PCCs, Mayors or combined authorities. Giving locally elected leaders greater say over the design and delivery of justice services will enable them to pool budgets and take greater account of how changes in one part of the system affect other parts of the system, taking action to restore equilibrium. PCCs could, for example, assist in managing the courts backlog by getting their forces to make greater use of diversion.



The need for investment to match demand


In addition to greater integration, there is a need to scale up investment in criminal justice services, which cannot any longer be expected to meet rising demand through flat (or reduced) spending settlements. It is striking that while in other areas of public policy, such as social security, public spending rises or falls depending on the level of demand, in criminal justice, the level of spending has been set almost without any reference to the underlying level of demand. Given increases in offending and sanction/detection levels which our model projects, this should be a priority ahead of the one year Spending Review due next month.


Fundamentally, the government must make a choice. It can accept that rising demand necessitates an expansion of capacity across the CJS. For example, by ensuring that the uplift in police officers is matched by equivalent investment into the courts, prisons and probation. Or – if it wants to reduce the size and scope of the CJS – it must take urgent action to reduce demand coming into the courts. What it cannot do is go on pretending that rising demand can be met within existing spending envelopes.



The need to stem the flow into the courts


Finally, it is clear from our modelling work that if the justice system is going to have any chance of managing the backlog, more work will be needed at the front end to reduce demand. Government will need to look at all the levers at its disposal, but in particular:

  • What can be done to prevent crime from occurring in the first place through more effective prevention and early intervention.

  • The scope for decreasing the amount of cases entering the court system, for example, through smarter use of out of court disposals and other diversion.

  • Increasing the speed with which cases are dealt with by the court. This is likely to involve a combination of reform to the listing process, a strategy to reduce victim attrition and a reduction in the number of cracked and ineffective trials.


Conclusion/next steps

Over the next two months, Crest will be testing the ideas set out here with policymakers and stakeholders from across criminal justice. We will also be consulting the public in a Citizens’ Jury to understand their attitudes towards the criminal justice system and their appetite for the trade-offs involved in designing policy to address the glaring issues.


We'd love to hear your views, please get in touch. In particular, we would love to hear from barristers, local criminal justice boards, partner agencies.


Read the report in full here.



References

  1. Home Office: Recorded Crime statistics, Ministry of Justice: Published Criminal Court Statistics, Offender Management Statistics Quarterly (2019/20)

  2. We define the backlog as cases that have been charged but that are waiting to be sentenced. This includes cases waiting to be listed, cases listed and waiting for first hearing, cases waiting for trial, cases actively being tried and awaiting a sentence. This is different from the common definition of cases awaiting for trial, but it is one that is robust enough for analysis and reflects the fact that defendants and victims and witnesses are waiting for outcomes at each of those stages.

  3. https://www.gov.uk/government/news/10-000-extra-prison-places-to-keep-the-public-safe

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