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Lord Burnett of Maldon, who stepped down in 2023 as Lord Chief Justice of England and Wales, says criminal courts have been “starved’ and “cut to the bone”.
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He also expresses concern about ‘ramping up’ of sentence lengths - urging more use of community sentences for young offenders.
One of England and Wales’s most senior former judges warns that the criminal justice system is so degraded from funding cuts in the past decade it will take “a long time” to recover.
Lord Burnett of Maldon, who stepped down as Lord Chief Justice last autumn, says that the system was “starved” and “cut right to the bone, essentially through not providing any increases for many years, although obviously there was inflation.”
There has been a recognition in recent times and particularly in the last year that the courts and lawyers required proper funding, “otherwise the system will just degrade”.
But the damage done could not be put right overnight with the “flick of a switch”, he says in an interview for the podcast series “The Judges: Power, Politics and the People” hosted by The University of Law.
“Well, so far as the criminal courts are concerned, I don't think that the work that's been done in recent months and over the last year or so in trying to sort out the remuneration for criminal lawyers, not just the Bar, most importantly solicitors as well, I don't think that story, that debate is over.”
The system of criminal courts funding had degraded in the last ten years because of two things, he adds.
“The first is that the volume of work going through the criminal courts fell away,” he said. “So, the number of solicitors and barristers also began to fall away. Then the money got squeezed and so more fell away for that reason.
“And what I think we're seeing at the moment in trying to recover from what's happened is that you can't rustle up lots of new criminal solicitors and barristers overnight. “
“You can’t flick a switch and undo the damage that’s been done over really ten or more years. And so, I think that is something that is going to require the continued attention of government for quite a long time to ensure that the criminal legal aid fraternity community, solicitors and barristers, is able to do the work that needs to be done and is self-renewing.”
Without that funding, he warns: “We will be in a position which on and off we have been now for the last 18 months or so of having courtrooms available, judges available to do the cases if necessary, but one or other side, prosecution or defence, not being able to produce a lawyer to deal with the case. And that’s terrible.”
Speaking with journalist Frances Gibb, Lord Burnett, who was head of the judiciary as Lord Chief Justice of England and Wales from 2017 to 2023, goes on to express concern about the “ramping up” of sentence lengths, with political parties trying to out-do each other in their attitude to crime.
He urges more use of community sentences, particularly for young offenders. “What is often overlooked is that those who get short sentences of imprisonment have as often as not had many non-custodial sentences which have, as it were, failed.”
“So, I have long thought that many short sentences really serve no real purpose other than to punish and none of the other aims of sentencing are served at all. And so, I would certainly like to see more effective community penalties and punishments.
The average sentence length for serious crimes had gone up “very significantly, very significantly”, he says. “I think there's a serious question about whether lengthening sentences is actually good in the public interest, good for society.
“And it's not only questions of the money that gets thrown at it. But I ask myself internally what I hope politicians of all parties will be asking: why is it and is it a good thing that sentences in England and Wales are so much longer than sentences in France and in Germany and in Italy and in Holland and Scandinavia? And is it actually producing benefits to society that can be measured that are tangible?”
Ministers have pledged legislation to scrap short sentences of up to one year to free space in prisons, now facing a crisis of overcrowding.
This week Alex Chalk, the justice secretary and Lord Chancellor, warned the Prime Minister that any delay in the sentencing bill would risk prisons running out of space by Easter.
“There are ways in which punishment can be achieved with community sentences now. So, something I've long thought is true is that particularly for relatively young offenders, rather than putting them in prison, give them a tough community sentence with an overnight curfew.”
You can watch the full episode here or you can listen to the podcast on The University of Law channel which is being streamed on all major services including Spotify and Apple.