Two Crown court judges wrongly blamed the government for failing to resolve the criminal bar strike when refusing extend custody time limits, lawyers for the Crown Prosecution Service told the High Court today.

The CPS is challenging decisions in two separate criminal cases, arguing that the non-attendance of counsel at trial due to the Criminal Bar Association’s ongoing industrial action amounts to a ‘good and sufficient cause’ to extend the custody time limit (CTL).

Earlier this month, Judge Peter Blair KC refused an extension in the case of one man whose counsel did not attend his trial as part of the CBA action, 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.

Tom Little KC, for the CPS, today argued 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’.

He said that expressing a view on the dispute ‘places the judiciary in an invidious position’, which could lead to inconsistent decisions if applications to extend the CTL are ‘determined based on the individual views of judges as to the competing arguments in the dispute’.

Little also emphasised that the absence of defence counsel at court was the result of ‘a personal decision of an individual advocate aware that their client was in custody, having accepted the brief months before’.

He added in written submissions: ‘Nothing in this claim should be interpreted as expressing any view on the ongoing dispute between the Criminal Bar Association and the government.’

Benjamin Knight, representing one of the three men, argued that neither Blair nor Landale ‘descended into the arena on the CBA action’, saying the judges were simply ‘assessing the situation before them in context, not in a vacuum – to do otherwise would be absurd’.

He said in his skeleton argument: ‘The long-awaited review into legal aid provision was delayed repeatedly but did conclude that immediate steps were needed, simply to prevent further depletion. The state did not act.

‘The CBA proposed what its members felt to be the essentials to prevent the collapse and to begin to attract lawyers into this specialised and peculiar area of work once more. The state refused to discuss those proposals.

‘The result … is that there is a lack of resources (i.e. barristers) that cannot be ignored by any court considering the consequences.’

Knight also argued that, on the CPS’ case, the test to be applied when considering an application to extend the CTL ‘would be reduced to something akin to “does the state wish to keep the defendant in custody and, if so, does the state say its reasons are adequate?”’

‘That contention amounts to a usurping of power from the independent judiciary into the hands of the Director of Public Prosecutions and it is, of itself, an overtly political act,’ Knight added.

Barry Grennan, representing another of the three men, told the court that any delays as a result of the CBA action were ‘predictable and foreseeable’.

‘There has been a lack of public funding for a long time,’ he said. ‘There may be exceptions to that view among circuit judges, but I respectfully submit the vast majority of them would find it difficult to disagree.’

Grennan added: ‘The mood throughout the legal system on the ground is very poor and requires the government … to be doing something to correct this position.’

The hearing continues.

 

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