Lord Chief Justice, Lord Burnett of Maldon

The Lord Chief Justice, Lord Burnett of Maldon, held his annual press conference on Tuesday 1 December 2020, at the Royal Courts of Justice.

Here is his opening statement, and response to various topics put to him by members of the national media:

Opening statement by the Lord Chief Justice

"My last press conference was at the end of February just as COVID was engulfing the world. The courts have coped well with what followed due to the hard work and flexibility of all judges, magistrates and staff, who kept the courts and tribunals running throughout the pandemic.

"My profound thanks to them, of course, and also to you, the press, who have continued to report on court proceedings in all jurisdictions, in circumstances which have been very far from easy. Judges want the work of courts to be seen and understood and that would not happen if you were not there.

"Without the pandemic, you would have been able by now to show film of sentencing remarks in the Crown Court for the first time. The law has been changed to make that possible and I hope filming can start soon.

"I am reassured that the government recognised last week that even at this time of financial pressure, the courts are an essential service too. Funding for the courts is being increased. The courts are a vital public service and more because they underpin the rule of law.

"Now, anyone charged with a crime should be dealt with reasonably quickly, whether in the Magistrates' Court or the Crown Court. Family courts need to continue making decisions every day on the welfare of children at risk and in resolving family disputes. Civil claims, from small debt collection up to multi-billion pound international lawsuits between companies, must be decided fairly and efficiently, and disputes between citizen and the state swiftly determined in the tribunals.

"I am acutely conscious of the impact of delays caused by the current level of backlogs which have grown significantly in some jurisdictions as a result of the pandemic.

"The Judiciary is working tirelessly to increase the capacity of the courts to hear cases and will continue to do so. I will deploy judges, salaried, fee-paid and those sitting in retirement to the full with the aim of reducing backlogs over the next financial year.

"This is not just a matter of funding, judges, staff and courtrooms. Backlogs can only be reduced if all those involved in court hearings are able to work at full tilt. As you can imagine, these are matters I discuss regularly with the Lord Chancellor and I am grateful for his support.

"Our experience this year has reaffirmed the urgent need for modernisation. Necessary technology often was not in place when the pandemic struck. We were still relying on outdated systems and hardware. Where modernisation was more advanced, we were able to work more effectively. The modernisation programme must be seen through to its conclusion.

"Individuals and organisations who use the courts deserve far better than to be stuck with outdated paper-based processes which should have been done away with years ago. The coming year will undoubtedly be tough but the courts and tribunals will weather the storm."

Lord Chief Justice's press conference

Backlog of court cases caused by COVID-19 and impact on victims

Lord Burnett said: "There are delays built into the system long before any cases enter the courts. In many cases, particularly the sort of cases you are describing, there are significant delays between the reporting of an offence and a charging decision. Then the cases come into the courts. It is the experience of everybody who is involved in the Criminal Justice System that the longer the gap between the reporting of an offence and its eventual trial, the more likely it is that something will go wrong. It can be as simple as important witnesses losing interest, for example, in continuing to pursue the case, and so that is the sort of thing that I had in mind.

"Now, the things that are being done at the moment to try to deal with this particular problem involve increasing the capacity in the criminal courts.

"Now so far as the Magistrates' Court is concerned, the turnaround, despite COVID, has been quite remarkable and in the Magistrates' Court at the moment, more trials are being conducted each week than were being conducted pre-COVID. That is not to say that there are not still problems but it has been a real success as a result of the enormous hard work of everybody involved, including the CPS, police and the legal profession.

"In the Crown Court, the position is more difficult. There was a need to suspend jury trials for a short period, simply because we were not able to deal with them safely,

"But they restarted on 11 May and gently built up over the ensuing weeks and months. There are now over 265 Crown Court rooms that simultaneously can hear Crown Court jury trials and there is a small number of additional courts in the so-called Nightingale Courts. So volumes are building up very quickly and our hope is that the court service will be successful in having roughly 300 courtrooms capable simultaneously of hearing Crown Court trials by the beginning of next year.

"Now, obviously in general terms, what are described as custody trials have to be given priority. These are people who are in custody awaiting trial and so my underlying concern is that as a result of necessarily prioritising those cases, the cases where the defendants are not in custody are likely to get hearing dates longer into the future, but all that can be done to increase the capacity of the courts, and it is not simply physical capacity, as you will appreciate, is being done."

Criticism of the judiciary by politicians

Lord Burnett said: "There have been a number of instances which bubbled up into the public domain just recently of what might be thought to be interference. There was an unfortunate letter only last week to two senior judges, copied to a trial judge, which appeared to be an attempt by a group of parliamentarians to influence the outcome of a pending decision, so that is obviously an unfortunate lapse but it illuminates, it seems to me, a wider problem.

"There needs to be sensitivity displayed by all branches of the constitution, so that is the legislature, the executive and the judiciary as to the proper sphere of the others. I am pretty confident that judges understand where the boundaries lie but I am less confident at the moment that all parliamentarians have an instinctive understanding of where those boundaries lie, and one of the things that I am concerned to think about at the moment is how we, the Judiciary, can help to ensure that the understanding is deeper."

Asked if the judiciary should explain to politicians the boundaries between them and the courts, Lord Burnett added: "We have a dialogue with both Houses of Parliament and obviously dialogue with the government. It is something which I and other senior judges have been thinking about quite deeply recently and quite what steps we will end up taking is premature to say but it does seem to me that even if it amounts to a very short briefing provided to new members of both houses of the legislature on the boundaries between our respective roles and the need to respect the independence of the Judiciary, that is something that we are thinking about and will have discussions about."

Lord Burnett was previously asked about this issue by the Justice Select Committee in November 2020.

He explained: "It is really as simple as this: that the vitality and independence of the legal profession is an essential hallmark of a society governed by the rule of law, and lawyers have a duty to act fearlessly for their clients, subject always to overriding professional obligations and duties to the court. So, in my view, they should not be subject to criticism for doing their job. A general attack on the legal profession, in my view, undermines the rule of law.

"Now, the Lord Chancellor has spoken publicly in similar terms at the beginning of October, and I so I do not think there is anything surprising about that observation, but what I would emphasize and have said publicly recently is that that does not immunise lawyers from criticism of individual conduct in appropriate circumstances. But there is only a tiny minority of lawyers who cross the line in the individual case and so general attacks on lawyers, I think, are extremely unfortunate."

Should judges and lawyers be a priority for the COVID-19 vaccine?

Lord Burnett said: "It will be a matter for the government to decide the order in which the public is offered vaccination when the vaccines are approved, as we all hope they will be.

"One of the things that I suspect the government will have to contend with is that a very large range of groups, bodies and organisations will make a case for priority and if too many do so, then, of course, one does not have any prioritisation.

"Keeping the courts going is an important matter and as you have seen over the last eight months, we, with the court service and others, have managed.

"But I can, in my own mind, think of groups who would have a better call for priority. In my mind, without having thought deeply about it, I would include the NHS workers, for example, care workers in homes looking after the elderly and disabled, and no doubt there are others.

"So I will wait to see, as everybody will wait to see, the broad priorities that the government suggests when they publish them and then think more about it and, if necessary, have a discussion with the Lord Chancellor."

Retired judges helping with the backlog in the courts

Lord Burnett said: "When judges retire, so long as they are still under 75, they may sit in retirement as fee-paid judges, and in all jurisdictions, a number do so. I have not got the precise figures in my head, I am afraid, and so cannot give you that, but particularly for the District Bench which deals with most of the family cases and the County Court cases, the availability of retired district judges to sit in retirement as fee-paid judges is vital in supporting the system. Until recently, there has been no need for retired Crown Court judges to sit in retirement, because with the salaried judges and fee-paid recorders, there simply has not been the number of cases to justify that. I have recently started authorising a number of retired Crown Court judges to sit in retirement in anticipation of there being a step-change increase in the number of Crown Court trials that we hear once, to come back to Jonathan's point, the vaccine is available and we can return to something which does not involve social distancing. So it is one of the arrows in the quiver, as it were. It makes up a relatively small proportion of the sitting days undertaken across the judiciary, but it is an important part."

Explaining more about capacity in the courts: "I have been emphasizing that capacity means much more than courtrooms. Obviously, having a courtroom that is safe to hear a case is part of the story, but capacity stretches much more widely than that, and there needs, for example, to support the increased number of hearings.

"The Court Service is in the process of recruiting an extra 1,600 people to support recovery from COVID. I wish them well in that and hope that those 1,600 will all be in post before too long, but that is a capacity issue. So too, for example, is the ability of the main players in each jurisdiction to play their part, so, to give an obvious example, in family cases, the public law cases, in particular, Cafcass needs to be involved and there are limits to their capacity. In criminal cases, the police, the CPS, the probation all need to play their part and there will be limits to their capacity as well. Then, in capacity we also have judicial capacity.

"In crime, all the work that I have asked to be done has convinced me that there will be no shortage of judges to hear criminal cases.

"The same is not necessarily true in civil and family, where we have a shortage of judges; we have a significant shortfall in district judges at the moment. There is a competition running, but it will not produce new judges until the early summer of next year, so we may have a problem there."

Talking about funding new judicial positions, Lord Burnett added: "Then, of course, capacity also engages funding. I mentioned a little earlier that the government last week, the Chancellor, in his statement, indicated increased funding, particularly for crime, for family and tribunals. So I hope that funding will not be a constraint in the next financial year. It is not in this financial year, I should emphasize. We are able to sit to full capacity, whatever that entails, with a social distancing."

Funding and resources for the courts in the coming years

Lord Burnett said: "Whether the amount that the government is setting aside is sufficient, we shall have to see, and I am yet to have discussions with the Lord Chancellor concerning the particular allocations of funding to each jurisdiction.

"Perhaps I should note, that in addition to the general funding that I spoke of, the funding for the estate for repairs and maintenance to the court estate is being significantly increased for next year, which is very welcome because the backlog of maintenance is quite alarming. So the increase that is being flagged up, or has been flagged up by the Chancellor of the Exchequer is welcome. Whether it is enough, we shall see.

"I am quite sure that it will need to be carried forward into future years. This is not a one-off, and that is really for a very straightforward reason. First, dealing with backlogs is going to take time, inevitably. Dealing with backlogs depends also upon when we are free of restrictions which flow from COVID. We obviously belong with everybody else, I am both heartened and optimistic about the impact of vaccinations, but none of us is taking anything for granted.

"The second part of the reason is that the volume of work coming into most jurisdictions has been growing for some time, and our assessment, supported I should say by the Court Service, is that in crime, in family and in civil, there will continue to be a growth in work. We are, essentially, a demand-led organisation, and other aspects of government which are demand-led are not subject to financial constraints. So, for example, the amount that the government has to pay out in benefits is set by statute and it just has to be paid out. That is demand-led.

"The number of cases that come into the Magistrates Court or the Crown Court or the Family Court is also demand-led, but the way the government funding works is that there are constraints. That is a long way round to saying that it would be enormously disappointing were the increases announced by the Chancellor of the Exchequer last week seen as a one-off."

Court modernisation and the government spending review

Lord Burnett said: "The way in which the modernisation programme is funded requires a new business case to be presented by the Ministry of Justice to the Treasury each year. A business case was prepared and presented to the Treasury I think at the beginning of October. I do not have the precise date in my mind. As you can understand, both the Ministry of Justice with the Court Service and the Treasury have been very busy on other matters, and so the decision was taken to defer consideration of that business case until February. So that is why it is not mentioned in the Chancellor of the Exchequer's statement last week.

"But I should make absolutely clear my view that the continued funding of the reform and modernisation programme is absolutely vital to the efficient functioning of the courts, and it is also my view that modernisation and recovery are not separate matters; they are two sides of the same coin, and I can give a very clear straight forward set of examples.

"At the moment, the digitisation of the public law side of the Family Courts is underway, it is expected that that digitisation process will lead to quite significant efficiency savings. To fail to provide the money for that to be seen to the end would be an act of self-harm, in my view.

"Similarly, the County Court, now the County Court deals with between 90 and 95 per cent of all civil cases in England and Wales and yet, save for a small online money court which is expanding, it is all paper-based so people have to fill out long forms, put them in envelopes, send them in, they get wheeled around buildings, vast files dumped on judges' desks. Now, all of that is grotesquely inefficient and the digitisation of the County Court, which has yet to commence, is again an absolutely vital step to ensuring both efficiencies but also recovery. So that is the spending review."

Social distancing in the courts

Lord Burnett said: "Social distancing is going to be with us for some months, I have no doubt about that, irrespective of the availability of vaccines. The concentration of effort in England and Wales has been in getting a very substantial number of our courtrooms capable of conducting jury trials. Now that has involved a great deal of imagination and different solutions in different places so, for example, in some places the public and press sit in a different courtroom that is not able to hold a jury trial itself, so as to reduce the number of people in court, reduce the number of physical interactions but the jury, with the lawyers and the judge and any witness whose physical presence is necessary, have remained in the main courtroom. That, as I said earlier, has been successful.

"In Scotland, they are trying a system whereby the jury sits in a cinema and has the proceedings in the courtroom beamed to them. They have a few of those running and they are looking extremely carefully at how that works. It is actually very expensive and hitherto the judgement has been, this is the judgement of the Court Service and the MoJ that it is much more cost-effective to get our existing courtrooms running alongside so-called Nightingale Courts, which are courts in other buildings. I think all options remain on the table so far as physical changes are concerned but, so long as we can continue to increase the number of courtrooms that can hear jury trials, that is likely to be a better way of dealing with it than something which may seem more eye-catching but will not deliver any better results. I should add that in some courts, specially constructed portacabins have been put into car parks to provide extra accommodation, in particular for the juries to gather.

"So far as legislative changes are concerned, the various options that have been mooted include trial by judge alone, trial by judge and two magistrates, both of those in respect of what are either-way offences, so offences that could have been heard in the Magistrates Court but have gone to the Crown Court, and both strictly time-limited, and the third is reduced jury size. In the Second World War jury numbers were reduced to seven. All those options were floated straight after lockdown and, indeed, I mentioned them before a Parliamentary Committee, the Constitution Committee of the House of Lords, being careful not to advocate any of them but simply saying that policy makers, so that is the government, and legislators should think about this if backlogs became unmanageable as a result of social distancing."

Nightingale Courts - are they having any impact?

Lord Burnett said: "When you say only about 15 have opened, that is buildings, rather than the number of courts within them and there is a plan that there will be some more before too long. They are making an impact, they are making a contribution. Most of the hearing rooms in the Nightingale Courts are being used for family and civil cases because it is much easier.

"About ten at the moment are being used for criminal cases, that is to say, jury trials, but you will appreciate that they cannot be used for custody cases, in other words, cases where the defendant is remanded in custody.

"I think one has to look at all of the measures that have been taken without the benefit of hindsight if I may say. Six or seven months ago everybody, including the judiciary, were scratching our heads and wondering how we were going to cope with, particularly jury trials, with distancing of two metres.

"All sorts of different ideas emerged and Nightingale Courts are simply one and they are making a contribution, a modest contribution it has to be said, but I do not regard them as window dressing."

• Read the full transcript of the press conference below