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CRIME: An Introduction

Practice Area Overview: Crime 


Last year’s crime overview reported on another tumultuous year for the criminal justice system of England and Wales, with court closures, rising crime and a fall in prosecutions. So far, this year has seen the opening of several new court centres, a sharp fall in crime, and a drive to increase prosecutions. Much of this, of course, is a direct result of the devastating effect of COVID-19 on the criminal justice system, which despite being at breaking point before the pandemic, has faced a crisis not seen since the Second World War. The impact is difficult to overstate and has led to many difficult questions, including not just how justice can be delivered, but whether we are equipped to deliver justice under such unprecedented conditions.

Despite the all-encompassing impact of COVID-19, there have been several other notable developments, including calls for an end to racial profiling within policing; a drive to increase the number of rape prosecutions; and additions to the Domestic Abuse Bill, intended to close off the so-called 'rough sex defence.'

The impact of COVID-19 on the criminal justice system

On 23 March 2020, as the full magnitude of COVID-19 became clear, the Lord Chief Justice announced that all new jury trials would be postponed, effectively putting a brake on almost all contested matters in the Crown Court. Consequently, over half of court centres closed to the public, with the remaining open courts dealing only with a limited range of work.

Days later, the Coronavirus Act 2020 received royal assent, amending existing legislation to widen the use of video and audio links in eligible criminal proceedings. The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 came into force the following day with the then Home Secretary, Priti Patel, justifying the new regulations as necessary during this unprecedented public health emergency. The regulations – the breach of which could be a criminal offence – created a regime with the tightest restrictions on rights of movement, gathering, and conduct of business ever seen in peacetime. The CPS would later announce a review of every charge under the coronavirus laws following the emergence of several cases involving individuals who had been incorrectly prosecuted.

In April 2020, the Lord Chief Justice announced a judicial working group to consider how to resume criminal trials. Suggested emergency measures including reducing the number of jurors required to as low as seven, and hearing trials in university lecture theatres and other large public buildings in order to observe social distancing, the latter suggestion being the preferred option (at the time of writing, at least). Several 'Nightingale Courts' opened in July 2020 to deal with a wide range of business, including non-custodial criminal cases.

Proposals to extend court sitting hours were met with almost universal condemnation due to their discriminatory impact on a wide range of legal practitioners, and the inability of the profession to take on the strain of additional work absent a desperately needed increase to the legal aid budget.

The need to accommodate socially distanced trials until such time as it is no longer necessary, will remain the single biggest challenge to the criminal justice system for the foreseeable future. In June 2020, the Ministry of Justice confirmed the extent of the backlog, with over 480,000 cases in the magistrates’ court and over 41,000 in the Crown Court, although the vast majority of these cases date to before the start of the pandemic. Practitioners have pointed to this as clear evidence of the creaking state of the criminal justice system long before COVID-19. While most courts were up and running again as of summer 2020, they are operating at a greatly reduced capacity. As long as this is the case, the backlog will continue to grow, testing the resilience of an already greatly overstretched system.

Other news and legal developments 

Practitioner groups have warned of the emergence of 'advice deserts' due to a growing shortage of criminal defence lawyers. The potential impact of the shortage – attributed to woefully low legal aid rates, which have not increased in 25 years – has been described by the Law Society as putting the very notion of British justice in jeopardy. In February 2020, the Ministry of Justice announced a potential increase of up to £50 million for criminal legal aid; however, the date for completion of the long-awaited criminal legal aid review is now unclear.

The country was shocked by the tragic case of 'Love Island' host Caroline Flack, who sadly took her own life in February 2020 while awaiting trial for allegedly assaulting her boyfriend. The case sparked intense debate about how the criminal justice system treats individuals in the public eye, mental health and the complexity of allegations said to have been committed in a domestic setting.

Other recent high-profile cases include that of former MP and Conservative chief whip Charlie Elphicke, convicted of sexual offences involving two complainants; and an as yet unnamed Conservative MP and former minister, under investigation for allegations of rape and controlling or coercive behaviour against a former parliamentary employee. The cases have led to calls for swifter handling of claims of sexual misconduct within Westminster, and by the police and CPS, with investigations routinely taking years to resolve. The shocking case of the killing of PC Andrew Harper concluded despite the trial being adjourned over the pandemic’s peak. The killers’ convictions for manslaughter as opposed to murder led to much analysis of the fine line between homicide offences and the concept of tainted acquittals.

Throughout May and June 2020, the Black Lives Matter movement took on a renewed momentum following the death of George Floyd, a black American man, killed in Minneapolis while being arrested by a white police officer. The movement saw mass demonstrations across the world, with protesters demanding an end to police brutality and racially motivated violence against minorities. Despite its roots in America, the movement has highlighted inequalities in policing in the UK, including the disproportionate number of deaths of black people in police custody and the discriminatory use of stop and search powers.

In June 2020, MPs launched an inquiry into the fairness of private prosecutions, following a request from the Criminal Cases Review Commission, which referred 47 convictions of employees of the Post Office to the Court of Appeal in the wake of the now well-publicised Post Office Horizon computer system scandal. The Justice Committee inquiry will consider the potential consequences of an organisation investigating a case, and prosecuting it, while that organisation is also the alleged victim of the offence.

In July 2020, DPP Max Hill QC announced a five-year blueprint, 'RASSO 2025,' aimed at assisting the CPS in understanding and reducing the gap between reported cases of sexual violence and those cases making it to court. The initiative will include a new toolkit for prosecutors considering cases of same-sex sexual violence and sexual violence involving a transgender complainant or defendant.

Also, in July 2020, Justice Minister Alex Chalk announced, "No death or other serious injury – whatever the circumstances – should be defended as 'rough sex gone wrong.'" The so-called 'rough sex defence,' also referred to as 'consent for sexual gratification,' has been in the press consistently due to several highly publicised cases. In response, the Government has published a new clause to the long-awaited Domestic Abuse Bill, enshrining in legislation the principle that a person may not consent to the infliction of serious harm for the purposes of obtaining sexual gratification. Despite the amendment, the law will remain that, in order to properly be convicted of murder, an individual must have intended to kill or cause serious harm. It will remain within the law for a defendant to assert a defence to a charge of murder based on a lack of intention.

Paul Morris
Ellen Peart
David Hardstaff

BCL Solicitors LLP