Up to 10,000 vulnerable victims facing long delays for trials should be allowed to give evidence by video in an attempt to stop them falling out of the system, according to the victims’ commissioner for England and Wales.
Dame Vera Baird warned of a collapse in confidence in the criminal justice system and an exodus of complainants if unprecedented trial delays were not urgently addressed.
She accused the government of not being sufficiently ambitious in its efforts to tackle a backlog of more than 50,000 criminal cases at crown courts in England and Wales. The government has promised to open 60 “Nightingale” courtrooms by the end of March 2021, but Baird said the Ministry of Justice needed to “think more creatively”, adding: “We need to up the ante, we need more court days, more judges, more court premises, because we are facing a very serious problem.”
She called on all victims of sexual crimes to be allowed to give evidence and be cross-examined by video, which would then be presented as their evidence in court, which she said current legislation allowed for. With some crimes from last year unlikely to reach court before 2022, as many as 10,000 victims could be spared a long wait, said Baird.
A national rollout of technology to allow prerecorded cross-examination was announced in November, which would allow children or witnesses with learning difficulties to give evidence as close to the time of the offence as possible. But Baird called for it to be available to all “intimidated witnesses”.
“The court service has worked hard during the pandemic to get courts up and running despite many challenges. But the backlog of cases in the crown court now stands at over 54,000 and continues to grow – victims are waiting far too long in their quest for justice,” she said.
In January, the four justice chief inspectors of probation, police, prisons and the Crown Prosecution Service warned the “unprecedented backlog” of court cases built up in England and Wales during the pandemic had severe implications for victims.
Allowing victims of serious sexual offences to be cross-examined by video would enable them to access therapy, which many complainants choose not to do because their notes can be taken as evidence in a trial.
“Completing their evidence close to the time of offence helps memory recall, and reduces the distress experienced by some witnesses when giving evidence to a full courtroom at trial,” she said.
Baird said the ballooning number of victims dropping out of trials could not be allowed to continue. In 2015, 27% of victims withdrew support in cases of violence, 23% in rape and 11% across all crime. By 2020 this had increased to 44%, 42% and 25% respectively.
Last week in a victims’ policy paper Baird argued that rape victims should be assigned a lawyer, in part to enable them to challenge unreasonable demands for their personal data by police officers.
Mark Fenhalls QC, the vice-chair of the Bar Council, said he wanted to see the courts maximising the use of prerecorded video cross-examination for children and vulnerable witnesses before its scope was extended. “If used more widely these measures will help mitigate the worst of the damage caused by the increasing backlog,” he said.
But he warned that an extension of the scheme was no alternative to increasing capacity in the crown courts. “All victims and complainants deserve to have their cases heard within months and not years. My fear is that if you roll out these powers, it may distract from the urgent need to provide enough judges and courtrooms to try all cases within a reasonable period,” he said.
A spokesperson for the Ministry of Justice said England and Wales were believed to be the first major jurisdictions in the world to resume jury trials, and in recent months the number of trials being heard every week had reached pre-Covid levels. The government was investing £450m to “deliver speedier justice” including £110m recruiting 1,600 extra staff, upgrading technology and introducing safety measures.
Hundreds of vulnerable witnesses were giving evidence by video recordings, said the spokesperson. “The technology is now accessible in all crown courts and we are piloting its use for intimidated victims, including for sexual offences,” they said.