Humpty Dumpty: Can the King’s men put criminal justice back together again?

ULaw grad Priya Pandya looks at the impact of Operation Early Dawn while drawing comparisons to the popular nursery rhyme

The majority of us know the infamous nursery rhyme ‘Humpty Dumpty’ that goes like this:

‘Humpty Dumpty sat on a wall. Humpty Dumpty had a great fall. All the king’s horses and all the king’s men couldn’t put Humpty together again.’

This nursery rhyme can be said to be an accurate representation of the state of the criminal justice system (CJS). Here’s how: the public is no alien to the crumbling state of the CJS. Its lack of funding has created a tumbling effect evident in the derelict state of some courtrooms, the never-ending backlog of cases; highly talented criminal lawyers, barristers and other professionals leaving the profession and, finally, to add to that cocktail of chaos, the prison overcrowding. This combination is leading to the drastic fall from grace of the CJS — just like Humpty Dumpty falling off the wall.

Criminal law practitioners have desperately tried and pleaded for change and for the CJS to be salvaged, thereby, representing the King’s horses and the King’s men who despite their relentless efforts are struggling to put the CJS back together. In all of this Operation Early Dawn was arguably the last straw.

The current problems faced by the Criminal Justice System

Courtrooms

Of the hopeless state of courtrooms across the country, Snaresbrook Crown Court makes a perfect example. Snaresbrook is idyllic from the outside, however, as soon as one steps inside, the realities of the criminal courts really take effect. With leaking toilets, improper heating conditions, and stains on the canteen tables, sadly, it’s clear to see that not all courts are like the Central Criminal Court. These are the exact courtrooms that are home to barristers, families and clients for weeks and months.

Members leaving the profession

The size of criminal law practice is shrinking, with fewer considering careers in criminal law. It has reached the point where current criminal law practitioners leave the profession in swathes for a more profitable path, and students are told to avoid the career due to financial hardship.

The backlog of cases

In 2023, 28.3% of cases were waiting in the Crown Court system for more than a year compared to 7.2% in 2020.  This means those right in the middle of this have to suffer daily without knowing:

Operation Early Dawn

Currently, two thirds of the prisons across England and Wales are overcrowded, and Operation Early Dawn was announced to help assist the management of the prison population.

On the 14th of May 2024, the Ministry of Justice (MOJ) announced that from Wednesday the 15^th of May 2024, the MOJ and HM Prison and Probation Service (HMPSS) every morning will assess which defendants could be transferred from police cells and taken to court to ensure a safe and secure location is available if they are remanded in custody.

Although the exact mechanism of how Operation Early Dawn in meant to function is still ambiguous, what this means is that many Magistrates Court cases will be delayed, the reason being the triage process from defendants being transferred from police custody suites to Magistrates’ Court and then to be transferred to Prison.

HMPPS is said to control this triage, and priority will be given to the defendants in the most serious cases. The MOJ confirmed that defendants who are not prioritised will be released on police bail, which will also impact those currently on police bail, but to what degree no one yet knows.

This is not the government’s first card in an attempt to tackle prison overcrowding, other tactics have included:

• Operation Safeguard, introduced in October 2022 which aims to use 400 police cells to help prisons with overcrowding.
• In October 2023, the End of Custody Supervised Licence (ECSL) scheme was introduced, this measure permits the early release of some prisoners on curfew for 18 days. This is now to set to increase to 70 days.
• The final measure included delaying sentencing hearings and favouring suspended sentences. This has been affirmed by the Sentencing Council and by the case of R v Arie Ali [2023] EWCA Crim 232.

However, none of these controversial measures help. In May 2024, the prison population was 87,505, with a total usable capacity of 88,895.

What does this mean for lawyers?

This hierarchy has only invited uncertainty, but to make matters worse, practitioners will not know if their client is affected until they arrive at court. This means wasted trips and extended waiting at ourts. This is an additional hurdle added to the criminal legal aid sector which cannot already deal with the mountains of cases piling up.

As an area of law that survives on every penny of legal aid, many criminal law firms have deemed this management style of criminal cases an additional financial burden. Criminal law practitioners are often the only support system for individuals during a stressful process, which is a privileged position to be in (to be able to be the person providing that support), however, measures like Operation Early Dawn make it more of an obstacle.

On 15^th May 2024, the Magistrates’ Association were urgently seeking further information from the MOJ and HMCTS. A media statement from Tom Franklin, the chief executive of the Magistrates’ Association alarmingly exposed that both the Magistrates’ Association and magistrates were not informed of this measure beforehand. Franklin went on to express further concerns, namely the havoc caused by Operation Early Dawn, which openly invites magistrates and court staff to sit and wait around as opposed to administering justice. This exacerbates a system already ailed with a lack of resources, especially given the current backlog of cases, which stands at 67,573.

To all this, the MOJ responded by saying:

“This government [at the time the Conservative Party] is categorical that the most dangerous offenders should stay behind bars for longer, which is why new laws will keep rapists locked up for every day of their prison sentence and ensure life means life for the most horrific murders. We continue to see pressure on our prisons following the impact of the pandemic and the barristers’ strike, which is why we have initiated a previously used measure to securely transfer prisoners between courts and custody and ensure there is always a custody cell available should they be remanded.”

This response could be seen as an attempt by the MOJ to evade accountability. The new unpredictable system moves away from the longstanding principle of ‘innocent until proven guilty’.

Prison overcrowding and Operation Early Dawn were intensely discussed during PMQs on the 15^th of May 2024. Both Rishi Sunak and our now Prime Minister, Sir Keir Starmer acknowledged the current mayhem and argued on who had a better plan. It was like watching two siblings argue over who gets to sit at the front of the car.

This pandemonium is at the expense of real cases with real victims, real defendants and real witnesses. The question remains: can the King’s Men somehow put Humpty back together again, or are we destined to leave him flat on the floor?

Priya Pandya, first class law graduate from The University of Law. Aspiring barrister with a passion for criminal law, currently studying the BPC LLM.