Make first-time, low-level offenders go to rehab instead of court, Bar Council suggests

First-time offenders in low-level crimes should be diverted from trials by paying compensation to victims or enrolling in rehabilitation to solve the courts crisis, the Bar Council has said.

The government has proposed abandoning jury trials in some cases to tackle the backlog in crown court cases, but the body representing barristers in England and Wales said this was “not a principled response” and would not work.

In its submission to a review of the criminal courts led by the former high court judge Sir Brian Leveson, the Bar Council said the proposal to create a third intermediate court between magistrates and crown courts would not offer a solution to a situation caused by more cases coming through the system.

Leveson was tasked with analysing solutions to the criminal courts crisis and the government indicated it wanted it to consider the creation of new courts where cases could be heard by a judge together with magistrates, in an attempt to shorten the length of trials.

In its submission, the Bar Council said: “Altering the fundamental structure of the delivery of criminal justice is not a principled response to a crisis which was not, in truth, caused by that structure in the first place … we are strongly of the view that there is no basis for altering the structure of the court system, especially where it will limit the right of our citizens to be tried by a jury of their peers.”

The Bar Council said there was a shortage of judges in magistrates and crown courts and that it was not clear who would staff another court. It said the number of cases going into the system needed to be reduced by other means.

Their proposals include the suggestion that some first-time offenders in low-level crime could not face trial or prison but instead agree to alternative justice measures, including paying compensation, engaging with a victim or undergoing rehabilitation and training.

Michelle Heeley KC, a criminal barrister who led the Bar Council’s work on the review, said of the government’s intermediate court proposal: “It sounds like a good idea, that there are all these cases that we can just, in one fell swoop, remove from the crown court. But actually, the practicality of it just doesn’t work.

“First of all, where are the judges going to come from? Do you take them from the magistrates court where there aren’t enough judges? Do you take them from the crown court where there aren’t enough judges, when they’ve got a cap on sitting days? When you actually look at the practical solutions, there are far more ways of dealing with inefficiency.”

Instead of introducing a new court, barristers suggested judges, including those who were retired but under the age of 75, be allowed to sit as many days as they were available. They argued that a cap on sitting days was exacerbating the backlog and should be lifted.

To further alleviate pressure on crown courts, the Bar Council said district judges should have their sentencing power extended to two years’ imprisonment and that there be a greater use of cautions for low-level offending by those of good character.

Cases where the defendant was clinically insane could also spare court time, according to the barristers’ submission. They argued that where all medical practitioners agreed that a defendant was insane, a verdict to that effect could be entered at an earlier stage to avoid trials where the only likely sentence was treatment.

The announcement of Leveson’s review followed the Guardian’scourts in crisis series, which examined the impact of unprecedented delays on victims, the accused and the justice system as a whole.

Lord Thomas, the former lord chief justice, told the Guardian last year that ministers should consider abandoning jury trials for some crown court cases unless they properly funded a justice system “in serious crisis”.

Thomas said: “You have to accept that if you want to keep the jury trial, you have to pay for it. It’s a choice, and a choice politicians are very reluctant to make. Do you make a major reform, or do you provide more money?”

Theministry of justice has been contacted for comment. Announcing the review at the time, the justice secretary, Shabana Mahmood, said the government had inherited a crown court crisis on an “unprecedented” scale that required a “once-in-a-generation reform of a courts system stretched to breaking point”.