Making trials run on time

You are sitting on counsel’s row at the Plea and Trial Preparation Hearing whilst the Court Clerk is on the phone to the Crown Court List Office. The Clerk asks for a trial date. It is a bail case. There are no special features that require the case to have a priority listing. Those in the courtroom hold their breath as the clerk says the year that the trial will take place, “20…”.

Could it be 2029? Could the trial really be in the next decade? The subsequent collective double take, “did they really just say 2030?”.

This is an unfortunately common experience for all criminal practitioners at present, as the criminal justice system fights tooth and nail to combat the persistent backlog of cases within the Crown Court, and Magistrates’ Courts, up and down the country.

On a Government level, the Ministry of Justice has sought to increase judicial sitting days to combat the backlog. A welcome reprieve, perhaps. The Government has also tabled the controversial Courts and Tribunals Bill, which seeks to limit the number of jury trials, amongst other things. The Government hopes that this Bill will ease the dreaded backlog, although many practitioners remain unconvinced.

Overview of the Practice Direction

A Practice Direction has been issued in respect of listing practices within the Crown Court and Magistrates’ Courts across the country. This Practice Direction will take effect from 1 October 2026.
This Practice Direction demonstrates a marked shift in the management of listings across the country, and places significant emphasis on the responsibility of the judiciary for ensuring that cases are listed in accordance with the overriding objective – the interests of justice.

A key aspect of this Practice Direction is the prioritisation of cases for listing purposes, and a core principle is identified, described as “the human impact of delay”. In determining the “human impact of delay”, the Court must have regard to the following primary factors:

• The seriousness of the offence;
• Whether a defendant has been remanded in custody;
• Whether any victim, witness or defendant is a child or otherwise vulnerable or requires accommodations;
• The extent to which delay is likely adversely to affect the safety, wellbeing or recovery of any victim, witness or defendant;
• The extent to which delay will adversely affect the quality of evidence; and
• Any other circumstance likely to increase the human impact of delay.

Further, in any case involving a child defendant, the court must have regard to the welfare of that defendant as a primary consideration in listing decisions.

There are several other relevant considerations, described as secondary factors, which include references to efficient use of courtrooms and judicial resources, the importance of continuity of both counsel and judge, and the need to ensure that there is adequate time allowed for preparation.

Priority must be given to the primary factors where relevant considerations conflict.

While HMCTS staff will continue to play an essential role in the administration of listing cases, the onus will now be on the judiciary to take ultimate responsibility. That responsibility may be exercised by a judge directly or, where appropriate, through delegated authority exercised by HMCTS staff or legal advisers.

In summary, everything outlined above will apply to both the Magistrates’ Court and the Crown Court in terms of judicial responsibility for listing, greater emphasis on trial readiness, the prioritisation of cases, as well as the efficient use of court resources and case management.

The Tier System

In the Crown Court, the Practice Direction introduces a tiered priority system for all cases. Moving forward, the presiding judge at a PTPH will be required to allocate a “priority tier” to each case. All practitioners should note that the court will expect the parties to provide such information as is reasonably necessary in advance of the PTPH to assist the court in determining the appropriate tier.

The tiers are sevenfold:
(i) Tier 1 – any case involving a death, or where any victim, witness or defendant is highly vulnerable.

(ii) Tier 2 – any case
o Where the evidence depends on the recollection of lay witnesses, including complainants or other witnesses who may be traumatised, and/or
o Where there is a serious risk that delay will adversely affect the quality of the evidence, and/or
o Where delay is likely materially to affect a defendant’s or witness’s ability to participate effectively in the proceedings, including where an intermediary may be required, and/or
o Where it is likely that a witness will be required to travel from abroad, and/or
o Where there is likely to be significant contested expert evidence, and/or o Where the time estimate exceeds 5 days.

(iii) Tier 3 – any case requiring lay witness evidence which does not fall within another tier.

(iv) Tier 4 – any case in which the evidence relies only, or predominantly, on police officer (or other investigator) evidence or documentary evidence, or which is otherwise suitable for shorter trial management.

(v) Tier 5 – any case allocated to a High Court Judge.

(vi) Tier 6 – any case allocated to the Terrorism Cases List.

(vii) Tier 7 – any case allocated to the Economic Crime List.

Of course, there are several caveats to the tier system.

A case will only be classified as Tier 1 on the basis of vulnerability if delay is “likely to have an exceptional impact on a participant or on the fairness of the proceedings”. That quoted passage is the definition of “highly vulnerable” for the purposes of this Practice Direction.

Sexual offences will ordinarily fall into Tier 2, and it will only be classified as Tier 1 if the alleged victim, witness, or defendant is deemed highly vulnerable.

It is important to note that while sexual offences will ordinarily fall into Tier 2, they won’t automatically. The tier system requires a holistic approach; consideration of all the factors involved in the case, and application of the tier criteria. The nature of the offending alone will not govern the allocation of tier.

Interestingly, neither cases involving defendants that await trial in custody, or cases subject to a custody time limit, are prescribed any particular priority tier, nor do those factors automatically determine whether the case is a Fixed Date or Flexible Date listing (more on that below). The fact that a defendant is in custody will merely serve as a factor for the court to consider when determining the “human impact of delay” and the appropriate listing arrangement.

Further, at PTPH, the judge must consider whether the case would benefit from early reservation to a trial judge, and if so, either refer the matter to the Resident Judge, or give appropriate directions.

The allocated tier is capable of revision should further information come to light.

Is this the end of the Warned List?

In short, no. Or at least not quite.
From commencement, all trial listings will be designated as either:

• A Fixed Date (1F); or
• A Flexible Date (2F).
  All practitioners will be familiar with a 1F listing.
  A 2F listing is, in substance, a ‘warned’, ‘floater’ or ‘fixed floater’ trial under a different name, ubiquitous terms which are now to be removed from the legal lexicon. A case may be listed as a 2F either: (i) by listing the case for a specified date alongside a 1F case, and if it does not go ahead on that date, it will be heard within one or two days thereafter, or in any event within that week, or (ii) by listing the case to be called on at any time during a defined Flexible Date period not exceeding one week. Consequently, the practical difference to current listing strategy will be the intended uniformity of this listing practice across the jurisdiction, and the restriction of a previously recognised ‘warned’ period to that of one week.
  Tier 1, 2, 5, 6 and 7 cases should be listed as Fixed Date (1F).
  Tier 3 and 4 cases should be listed as Flexible Date (2F).
  The Practice Direction allows for departure from these allocations where required in the interests of justice.

Section 28 cases

The Practice Direction stipulates that the fact that the cross-examination of a witness has been pre-recorded must not, of itself, result in a reduction in the priority given to the case.

How will this Practice Direction affect currently listed cases?

This Practice Direction applies to all cases in the Crown Court and the magistrates’ courts with effect from 1 October 2026. In relation to cases already pending at that date:

a) Existing trial listings using terminology replaced by this Practice Direction (such as warned/fixed floater/fixed/floater) shall be treated as Fixed Date or Flexible Date listings as appropriate from the commencement date; and

b) Tier allocation must be considered at the next hearing at which the case comes before a judge after the commencement date, where it has not already been allocated.

The Published List(s)?

In a fundamental change to listing administration, upon commencement every Crown Court will be required to publish an Advance List and a Firm List before a trial week.

Four weeks before the trial week, the court must publish an Advance List showing the trials, and as far as practicable, other hearings to be listed in that week.

During the third week before the trial week, the court listing or case progression staff must hold a Case Progression Meeting to review trials listed for that week and consider readiness and likely effectiveness. The court may require the attendance of defence representatives or other interested parties at the Case Progression Meeting.

Two weeks before the trial week, the court must publish a Firm List, showing the trials and, as far as practicable, other hearings to be listed in the trial week.

The Daily List will still be required to be published in draft and in final form on the day before the hearing.

Trials not reached

Practitioners may welcome that, from commencement, any Flexible Date (2F) trial that is not reached due to a lack of court time must, as far as practicable, be given a Fixed Date listing when re-listed. This will hopefully provide some certainty for defendants and complainants, rather than the interminable jump from one warned list to another.

Short Trial and Review Courts

Practitioners will be aware of the concept of a ‘Blitz’ court. From commencement, a Resident Judge may dedicate a proportion of court capacity to the listing of short cases where there is a realistic prospect of resolution. This will enable the court to list those cases earlier than their priority tier would otherwise indicate. A Resident Judge may also allocate judicial and courtroom capacity to Review Courts to review outstanding trials to consider readiness, priority and listing.

The Future of CVPs

The Practice Direction stipulates that the Lady Chief Justice’s ‘Live Links in Criminal Courts Guidance’ (the Guidance) must be followed by the court.

Broadly speaking, the Guidance outlines a ‘presumptive framework’ for live link directions. That framework is outlined below.

The Magistrates’ Court:

The Crown Court:

NB:

• “May attend by live link”: no prior application is ordinarily required.
• “Attend in person”: application / direction required to depart from the framework.
• “N/A”: does not ordinarily arise for that hearing type (if relevant and a live link direction is sought, an application is required).

Comment

It is in everyone’s interests to reduce the backlog within the criminal justice system. This Practice Direction is clear: the judiciary, but also practitioners, will be required to place an even greater emphasis on rigorous case management.

Many judges and practitioners may consider that this simply reflects the work they already undertake on a daily basis. Few would dispute that judges, practitioners and HMCTS staff already devote significant effort to progressing cases within an overstretched criminal justice system. Therefore, this added red tape might feel like an unnecessary burden on our already extremely busy professional lives.

Courts across the country already implement the strategic approach to listing cases that is outlined within this Practice Direction. However, until now, there has been no consistency of approach across all courts within the jurisdiction.

Nevertheless, the question remains whether this Practice Direction will do anything to meaningfully tackle the backlog. The administrative work required to comply with this Practice Direction will be significant for a workforce that is already well over capacity. Most importantly, none of this will do anything to create additional court capacity, increase judicial availability, or increase the availability of advocates.

Placing greater emphasis on rigorous case management is a welcome idea on paper, but if the system is not properly supported through further funding, it is a concern that this Practice Direction will create more work for the judiciary and practitioners alike, without having a meaningful impact on the backlog.