The criminal justice system in England and Wales is facing a backlog of 40,000 criminal cases, which will not be solved even if all crown courts are brought into service under physical distancing rules, the Criminal Bar Association has warned.

Even before the pandemic, some criminal cases were being listed more than a year ahead due to austerity cuts in the number of allocated judges’ sitting days. With jury trials suspended, the backlog grew at 1,000 cases a month.

The justice secretary, Robert Buckland, is considering whether to rent commercial premises – dubbed “Nightingale courts” – with space to spread out jurors, lawyers and court staff.

Caroline Goodwin QC, the chair of the Criminal Bar Association, said: “The restrictions imposed mean the courts cannot keep pace with that backlog, no matter how innovative the thinking is.

In December, the crown court backlog was 37,500 cases. Goodwin added: “The lord chief justice this month estimated it was now around 40,000. Only when social distancing comes down from 2 metres to 1 metre can all the available courts be used for hearings.

“Once we have the existing crown court estate open and functioning to the maximum and operating within safe social distancing parameters, then HM Courts and Tribunals Service (HMCTS) may want to consider using other court buildings or other buildings, not presently part of the court estate.”

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