Leveson report: What are 'sitting days' and why are they so important to curing the court backlog?

The judiciary is now under such intense pressure, with court backlogs at an all time high and some cases currently being listed to start in 2029, that his recommendations were “absolutely essential” to “reduce the risk of total system collapse”.

The picture is so grave, he feels that even his far-reaching proposals, deemed beyond the pale to some, will only ‘reduce’ the risk, rather than eliminate it.

Even the Government acknowledged it was having to look at ‘radical options’.

For all that the problems are myriad, the recommendations made by Sir Brian are relatively straight forward.

His plan, which is now being considered by the Government, would reduce the number of jury trials and create a new type of crown court where trials are heard by judges.

The most serious offences – murder and rape for example – would still be held in front of juries.

But for lesser offences, defendants would lose their current right to be tried in front of a jury.

While undoubtedly cheaper, some in the profession fear this will, overall, make the system less fair – surely the most important characteristic of a judicial system.

But the Government says the ‘balance’ between jury trials and other types of trial has always existed - no one would expect to see juries for a parking fine – and that the severity of the situation means this balance may now need to be shifted.

For those in the profession, the entire debate comes down to sitting days – the number of days a crown court room can be operating.

Governments can – and have – reduced this number to save costs, effectively leaving court rooms empty. This, unsurprisingly, increases backlogs.

The current record-breaking backlog has not appeared out of nowhere. Successive governments since 2010 have capped the number of sitting days despite demand increasing.

While decreasing costs in the short term, the long term effect has been more prisoners waiting in remand cells, exacerbating the symbiotic prison places crisis and increasing long term costs.

For its part, the Government has increased the number of sitting days since it came to office, and simply raising the number exponentially is one, albeit expensive, way out of the problem.

Instead, the Government seems to favour a hybrid approach of gradually increasing sitting days while raising the bar for jury trials, and using increased sentencing powers for magistrates to create this leverage.

Sir Brian’s recommendations are expected to save approximately 9,000 sitting days in the crown court each year from some of the main changes.

Thise include diverting cases to magistrates’ courts or to the proposed Crown Court Bench Division for trials to be heard by judges.

On the recommendation to end automatic jury trials, barrister turned Cabinet Office Minister Nick Thomas-Symonds told Times Radio this week: “A jury trial is always going to be an important part of our criminal justice system.

“But it’s always been about drawing a line with whether it’s the types of crime, for example, or seriousness of the crime as to how exactly we deliver fair trials across the criminal justice system.”

Legislation is expected in autumn, while a second tranche of Sir Brian’s inquiry, focussing on court efficiencies, is expected later this year.

Fittingly for the profession, that legislation will be scrutinised carefully, with calls from all corners for careful consideration and reasoned debate.

Labour MP Andy Slaughter is the Chairman of the Commons’ Justice Committee, and warned the plans need to be considered “very carefully” before altering the system.

He said: “Juries are central to our constitutional right to a fair trial.

“We should think very carefully before altering a system that has served us well for centuries. But that does not mean the ambit of the jury system can never change.

“Sir Brian makes a compelling case for radical change and the need for more than extra resources to restore the reputation of the criminal courts.”

With calls for cool heads and rational debate among professionals, could we expect the same in the House of Commons? Perhaps not.

Shadow Justice Secretary Robert Jenrick warned it was a “slippery slope” to abolishing jury trials altogether, and asked Justice Minister Sarah Sackman: “Does she accept that scrapping jury trials is a disgraceful and unnecessary rejection of one of our country’s proudest and most ancient liberties?”

The Minister replied: “We cannot simply sit our way out of this crisis. We’ve got to build system capacity, more judges, more prosecutors, more defence lawyers, more court ushers.”

The proposal was also described as “deeply concerning” by Mark Jones, dispute resolution partner at law firm Payne Hicks Beach.

He said: “It removes the right to be judged by your peers and the diverse nature of those who make up juries.

“The principal reason for the current backlogs is a lack of funding and investment.

“That should therefore be a significant part of the solution, rather than eroding a defendant’s right to a fair trial by losing the right to be judged by his peers.”

Chairwoman of the Bar Council, Barbara Mills KC, also rejected the need to curtail the right to a trial by jury, and said the reform should be piloted, with a clear end date to review it.

Sir Brian told reporters he does not “rejoice” in the recommendations, but added: “I do believe that they are absolutely essential if we are to prevent our system from collapse.”

The former senior judge said greater investment on its own would not solve the current courts issue and that “something much more radical” was required.

He said the proposed reforms take a “proportionate approach to trial processes while maintaining a right to a fair trial”.

He added: “These are not small tweaks but fundamental changes that will seek to make the system fit for the 21st century.”

Under the proposals, defendants in cases for offences including assault of an emergency worker, stalking and possessing an indecent photograph of a child would no longer have the right to choose a jury trial.

A new Crown Court Bench Division, made up of two magistrates and a judge, would have powers to deal with all either way offences such as fraud, child abduction, sexual assault and violent disorder.

A judge would decide whether a defendant’s case would be sent to the new court, or to the crown court with a jury.

With rhetoric incoming from all sides, none disagree that action is imperative - as Sir Brian’s report says: “the reality of criminal courts which are no longer effective is already beginning to materialise”.