Court reform: Why the Government should not go further than Leveson

The Independent Review of the Criminal Courts (the “Review”) was commissioned to address the severe backlog in the criminal courts. As of June 2026, there were over 80,000 outstanding cases in the Crown Court – the highest figure ever recorded. Lord Leveson of Liverpool, Chair of the Review, emphasised the need for “innovative solutions” to address the “very real difficulties facing the criminal justice system”.

The Review was published in two parts. Part One, published in July 2025, contained 45 recommendations including the structural reform of the criminal courts. Part Two, published in February 2026, featured 135 operational and delivery-based recommendations.

The response from the Government, accepting or rejecting the Review’s recommendations, was published in October 2026. It comes many months after changes to the court system had begun and after further changes had already been proposed in the Courts and Tribunals Bill.

The Government’s response to the Review is split into three key areas— investment; structural reform; and modernisation and efficiency. It recognises that criminal cases have changed in the last 55 years: cases have become longer, crimes more sophisticated, and evidence digitalised.

We agree with the Government that the current impact of long and complex trials on victims, witnesses, and defendants is untenable and that “accountability and respect should be at the heart of the criminal justice system”. However, we disagree with the Government's answer. The answer is not to curtail the right to trial by jury, create more legal complexity, or push more cases upon magistrates.

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Investment: sitting days, legal aid and the court estate

The Government rightly acknowledges that the criminal courts have been subject to years of chronic underinvestment. The uncapping of Crown Court sitting days is a welcome advancement.

The magistrates’ courts have also been funded to sit 125,800 sitting days this financial year, up from 114,000 last year, with a commitment to funding increases in future years. Yet, this increase is unlikely to offset the structural changes introduced by the Courts and Tribunals Bill. The new measures will reroute thousands of complex and serious cases to magistrates.  The additional sitting days are unlikely to absorb the significant work heading towards an already backlogged magistracy.

The response reflects Lord Leveson’s recognition of the significant need for increased investment to improve access to legal representation. The announced additional funding for criminal legal aid advocates, accompanied by a new scheme to deliver up to 100 criminal law pupillages per year, and invest in criminal legal aid solicitors are all important improvements.

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Structural Reform

The Government's response states that the measures introduced by the Courts and Tribunals Bill are not simply mechanisms for reducing demand in the Crown Court, but they are designed to be structural improvements to our criminal courts.

The response highlights four measures in the Bill:  

1. The removal of defendants’ right to elect for trial in the Crown Court for all triable either-way offences (Clauses 1 and 2);
2. Increasing the maximum custodial sentence in the magistrates’ court from 12 months to 18 or 24 months’ maximum imprisonment for single and multiple triable either-way offences (Clause 5);
3. Replacing the automatic right to appeal to the Crown Court from the magistrates’ courts in criminal proceedings with a permission stage (Clause 6 and Schedule 2); and
4. Introducing trial by judge alone in the Crown Court for technical and lengthy fraud and financial cases (Clauses 3 and 4 and Schedule 1).

On 13 October 2026, the day after the Response was published, the Government abandoned its plans to restrict judge-only trials for cases where the likely custodial sentence was less than three years. This decision is welcome.

However, the Government response and measures that remain within the Bill go beyond several of Lord Leveson’s recommendations.

First, the right to elect. Lord Leveson recommended removing the right to elect a Crown Court trial only for either-way offences with a maximum sentence of two years or less. Additionally, he proposed that a defendant pleading not guilty should be invited to elect for Crown Court trial, before the magistrates decide where the case is heard. The Government states it “accepts this recommendation in principle", but it is “removing the right to elect in its entirety”.

Second, magistrates’ sentencing powers. Lord Leveson recommended fixing magistrates' powers at 12 months and repealing the power to change them by statutory instrument. The Government’s response was instead “to introduce the power to extend magistrates’ court sentencing powers up to 18 and 24 months maximum imprisonment for single and multiple triable either-way offences”. The compound effect is a widening of magistrates' powers which increases the seriousness of the cases which can be tried without a jury. Contrary to Lord Leveson's recommendation, the expansive power could be exercised with the lowest level parliamentary scrutiny of legislation. As such, the Delegated Powers and Regulatory Reform Committee has recommended removing the power from the Bill.

Third, appeals. Today, anyone convicted in the magistrates' court has an automatic right to a full rehearing in the Crown Court before a judge and magistrates. The Crown Court can impose a more severe or lengthy sentence than the magistrates' court: this safeguards against frivolous appeals. This is reflected in the statistics. Currently, only 0.4% cases are appealed, and most contested appeals are successful. Nevertheless, through the Bill, the Government are removing this automatic safeguard and introducing red tape: an individual, must first be granted permission to appeal, and will not ordinarily be able to make oral representations.

Fourth, legal aid in the magistrates. With the inhibitive legal aid income threshold in the magistrates' court blocking most people earning the national minimum wage from access legal representation, many defendants seeking permission will be unrepresented. Many may struggle to draft their own grounds of appeal and to access justice. Lord Leveson recommended adjusting the legal aid income thresholds to ensure more defendants in the magistrates are eligible. Instead of ensuring access to legal aid representation, the Government says it will decide whether to raise the income threshold, once the reforms are implemented.

Fifth, complex fraud cases to be denied jury trial. Lord Leveson proposed an "interests of justice" test at a hearing and an interlocutory appeal against the decision that a judge hear the case alone. The Bill uses a “public interest” test instead. It also allows the Secretary of State add further offences (including either-way sex offences) which can be tried without a jury, this time without full parliamentary scrutiny.  

This draconian power sharply contrasts with Lord Leveson’s proposed tight definitions of eligible cases. Lord Leveson noted a definition could be based on the definition from the Fraud Trials Committee, to apply where the dishonesty is not immediately obvious, the area of business lies outside the understanding of the general public and the defendant is an expert in their field. Alternatively, it could be a test based on economic crimes which the judge determines to be serious or complex in line with Schedule 11 to the Economic Crime and Corporate Transparency Act 2023. Contrary to Lord Leveson’s recommendation, the Bill fails to contain or propose any clear definition or limitation on the offences that may be denied jury trial (other than homicide and indictable-only sex offences and ancillary offences).

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Modernisation and Efficiency

The Government response correctly emphasises that the criminal justice system is one ecosystem. All its elements require strengthening to deliver system-wide improvements. The response outlines the opportunities presented by AI and technology. We acknowledge the potential benefits of utilising technology and AI to promote efficiency. However, we reiterate our recommendations which emphasise that new AI tools must be accurate, accountable and uphold legal duties. We support the use of rigorously tested technology to accelerate case management only when there is absolute certainty that it is fit for purpose, used competently, ethically and lawfully, and properly safeguarded.

Finally, as is recognised by the response, Out of Court Resolutions are essential to ensuring that cases can be diverted from our court system where appropriate.

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Conclusion

The Government response is clear about two things: first, the court system is outdated; and second, it is investment, structural reform, and modernisation in tandem which will pragmatically and sustainably modernise it. We agree with this sentiment, which echoes that of Lord Leveson. The Government’s decision to take measures such as increasing sitting days, investment in a sustainable and skilled criminal workforce and encouraging Out of Court Resolutions are all measures which will improve the court backlog. We encourage and support these measures, per our June 2026 briefing.

However, on structural court reform, the Government’s response and the Bill depart in significant respects from Lord Leveson’s Review. With limited evidence that these measures will reduce the backlog, and with real risks of overburdening an already stretched system while eroding confidence in our justice system and legal rights of minoritised communities, they warrant far greater scrutiny and amendment.