Hundreds of defendants in custody could be released before their trial if the ongoing dispute over criminal legal aid is not resolved by the end of November, senior judges warned today.

In a keenly-awaiting ruling, the High Court said that trial delays during the criminal bar strike may currently provide a ‘good and sufficient’ reason to extend the custody time limit (CTL). But the court added that it is ‘unlikely to be capable of supplying a sufficient reason’ if the dispute between the Criminal Bar Association and the government continues until the last week of November.

Industrial action by the CBA began in April and the action has since escalated to indefinite strikes. Several trials have been adjourned in recent weeks as defendants have not been represented, prompting applications by the prosecution to extend the CTL – which is just over six months from the case being sent to the Crown court and the start of the trial.

Judge Peter Blair KC refused an extension in the case of one man whose counsel did not attend his trial at Bristol Crown Court earlier this month, saying the government ‘has had many, many months in which to resolve the current dispute over the requisite level of remuneration to pay’.

‘Today’s predicament arises precisely because of the chronic and predictable consequences of long-term underfunding,’ he added. ‘The unavailability of representation for the defendant today has arisen because of a persistent and predictable background feature of publicly-funded criminal litigation.’

Judge Tina Landale refused to extend the CTL in relation to two defendants in a separate case at Manchester Crown Court for similar reasons.

The Crown Prosecution Service brought a judicial review against the refusal to extend the CTL in those cases, arguing that both judges wrongly blamed the government for failing to resolve the industrial action.

Tom Little KC, for the CPS, told the court earlier this week that both judges were wrong to ‘consider the substance of the dispute’ between the CBA and the government and that their decisions ‘involved a view being expressed as to fault – in other words, this is the government’s fault’.

The High Court this morning ruled that both judges ‘erred in law in concluding that the unavailability of counsel could not constitute a sufficient cause for extending the custody time limit’.

However, the court held that it has no power to extend the CTL as they have expired and that ‘there is therefore no point in quashing either of the two challenged decisions’.

Dame Victoria Sharp and Mr Justice Chamberlain said that ‘adjournments made necessary by the absence of legal representation in the context of the CBA’s indefinite action … may in principle constitute both a good and a sufficient cause’.

They added that deciding whether an adjournment is a sufficient cause is ‘case-specific’ and will depend on, for example, the length of any delay, whether the CTL has previously been extended and ‘the likely sentence in the event of a conviction’.

But the judges said that the situation may change if the dispute between the CBA and the Ministry of Justice is not resolved in the next two months.

‘If the situation remains as it is now, the relevant point at which the unavailability of legal representation can properly be described as chronic or routine is likely to be reached by the last week in November 2022,’ Sharp and Chamberlain said.

They added: ‘Once this point is reached, the absence of legal representation in the context of the CBA action is unlikely to be capable of supplying a sufficient reason for extending custody time limits.’

An MoJ spokesperson said: ‘We welcome the judgment which recognises that the ongoing strike action does give sufficient cause to extend custody time limits. Judges make bail decisions independently of government but protecting the public will remain our top priority.’

Judges were also warned to ‘refrain from endorsing the position of either side’ in the dispute, though Sharp and Chamberlain said: ‘This does not mean, however, that judges are required to ignore reality. If, as a matter of fact, the effect of the CBA action is to make representation unavailable in a large proportion of cases, that fact must be confronted.’

The ruling was handed down on the same day that demonstrations resumed across the country, with CBA chair Kirsty Brimelow KC welcoming the beginning of talks with the MoJ after a meeting with lord chancellor Brandon Lewis last week.

 

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