Former Lord Chancellor and Secretary of State for Justice, Alex Chalk KC, has proposed a radical solution to the growing crisis in the Crown Courts, as the backlog of cases in England and Wales is projected to exceed 80,000.
He proposes creating a third tier of criminal courts between the magistrates' and Crown Courts, effectively a subsidiary of the latter. Magistrates would handle minor offences, while the Crown Court would continue overseeing serious cases like murder, rape, and fraud.
Chalk points out that convicted offenders in magistrates' courts currently have an automatic right to appeal to the Crown Court, where a judge and two lay magistrates sit. He suggests this bench structure is ideal for his proposed reform, though there is debate over whether the right to appeal should require prior approval.
The former Lord Chancellor suggests that adding a new court tier could reduce the Crown Court backlog, which he insists must drop to around 40,000 to ensure timely trials. Experts warn that delays in trials contribute to prison overcrowding, as remanded defendants occupy cells, recently prompting a contentious early release scheme for convicted offenders.
While many experts view the proposed reforms as a positive step, there are still concerns about who will handle the cases and where the funding will come from. Asian Voice has consulted several legal experts to assess whether this reform will succeed or fall short.
Jury trial removal will hurt ethnic minorities most
Mary Prior KC, Chair of the Criminal Bar Association and member of the 36 Crime Group, raised concerns about the potential removal of the right to a jury trial for certain offences carrying sentences of two years or less. She noted that this measure is being considered as a cost-saving initiative aimed at reducing the growing backlog in Crown Courts.
“With a national shortage of criminal solicitors and barristers, as well as legal advisers in the Magistrates’ Courts, it is unclear who will handle these cases,” she remarked. To illustrate the scale of the issue, Mary highlighted that in 2023, 1,436 trials in the Crown Court were rendered ineffective due to the absence of either a prosecution or defence advocate, or both—an alarming rise compared to just 71 ineffective trials in 2019.
Mary stated that the removal of the right to a jury trial is likely to disproportionately impact ethnic minorities. She said, “We know that currently the police and the Crown Prosecution Service (CPS) accept that there are racial disparities in the decisions to charge and in the manner in which statements and reports are written which mean that those with ethnic backgrounds are not treated as fairly as white people.
“We know that there is a concern that the Judiciary imposes longer sentences on those with ethnic backgrounds than white people. No motive has been found within the research for any of these differences but there is also no evidence based explanation for these disparities. However, what we do know is that people with an ethnic minority background are not treated differently from white people by juries,” she further added.
She said, “In the 2017 Lammy Review it was revealed that there was greater disproportionality in the number of Black people in prisons here than in the United States. The disproportionate numbers represent wasted lives, a source of anger, mistrust and a significant cost to the taxpayer. Any change to remove the right to a jury trial currently available for defendants who are charged with a range of serious offences needs to be considered within the context of a recently published report by the Crown Prosecution Service, ‘Disproportionality’, which identified racial disparities in the legal decision making of the CPS at the charging stage. The CPS’s role is to make fair and objective decisions free of any bias. That goal is not being met.”
New court tier won’t solve justice crisis
Senior Partner of Kangs Solicitors, Hamraj Kang said, “If the stated aim of the possible introduction of a third tier of criminal courts, positioned between Magistrates’ Court and the Crown Court, is to lessen the current huge backlog of cases, then this demonstrates flawed thinking. Any argument that such a new regime would lead to increased access to justice or improve specialisation in the courts is unlikely to be convincing when set against the backdrop of funding.
He added, “What the criminal justice system needs is more resources, not another tier of administration. The current two tier criminal court system is more than capable of dealing with the cases that arise in England & Wales. The Magistrates’ Court and the Crown Court need more ‘sitting days’. In the last decade or so, numerous court buildings have closed, meaning there is less ‘court time’ devoted to cases.
Hamraj further questioned, “If a new tier of criminal courts is introduced, where will these courts be located, and how will they be staffed and funded? The current two-tier system is already under-resourced, and creating another layer is unlikely to improve resource allocation. On the contrary, it will stretch the limited resources even further, exacerbating the existing challenges rather than resolving them.”
Hamraj argued that the idea of reducing caseloads in the Magistrates’ Court and the Crown Court merely shifts the problem rather than resolving it. He added, “To solve the backlog of cases, we need more courts sitting and for that we need Judges, barristers and solicitors to be available to play their part in ensuring the court system runs smoothly. However, we are facing a crisis in the numbers of criminal barristers and solicitors. There are simply not enough of them due to the underfunding of this sector of the law for many generations. A holistic approach needs to be taken where there is increased investment in the ‘criminal justice system’ as a whole and for all constituent parts of it. Without that, adding a third court to the current system is not going to be the silver bullet that policy makers are wishing for.”
