Lawyers are braced for chaos in the magistrates’ courts after the lord chancellor today triggered an emergency measure that could see defendants kept in police custody for an extra night instead of being brought to court because the prisons are full.

Under 'Operation Early Dawn', the Ministry of Justice said HM Prison and Probation Service (HMPPS) will assess each morning which defendants can be transferred from police cells and taken to courts to ensure there is a safe and secure location if they are remanded in custody.

The emergency measure will be used regionally where demand necessitates. Bail decisions will be made by judges and the police, not the government. The ministry stressed that no instructions had been given to bail defendants and triaging will be done by HMPPS, not Serco, which provides the Prison Escort Custody Service (PECS).

A Ministry of Justice spokesperson said: 'This government 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 murderers.

'We continue to see pressure on our prisons following the impact of the pandemic and 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.'

However, the move could cause chaos in the magistrates' courts. Law Society president Nick Emmerson said victims, witnesses, defendants and lawyers will turn up only to find their cases have been delayed.

‘What is crystal clear is the prison spaces crisis is a consequence of the government’s approach to justice including over a decade of underfunding of our criminal justice system, which also sees chronic shortages of judges and lawyers, huge backlogs of cases and crumbling courts,’ Emmerson said.

The Criminal Law Solicitors Association said members may want to await confirmation their client will be in court before attending to avoid a wasted trip.

A spokesperson for the Criminal Bar Association said barristers will continue to do what is required of them to ensure justice is delivered in a timely manner for defendants, complainants. victims and their families. While the sentenced prisoner population has risen significantly, the remand population has risen due to underfunding and a 'chronic shortage' of criminal barristers.

The Bar Council said it was wrong for the MoJ to blame the bar for the current situation. 'Covid and the criminal bar action happened in the past. It is how you respond to it that is the test for government,' Bar Council chair Sam Townend KC said.

'Operation Early Dawn is just one symptom of the chronic lack of investment in the criminal justice system for so long, along with up to 70-day early release of prisoners, the average time to trial now at a year, and the backlogs worsening. We cannot continue like this,' he added.

The Magistrates' Association said members were not informed about the operation. Chief executive Tom Franklin said: 'We are very concerned about these further delays being imposed on cases reaching magistrates’ courts. Every case that is delayed has real-life consequences for victims, witnesses and defendants - and leads to magistrates and court staff sitting around waiting, rather than administering justice. That is a waste of resources, at a time when there are already large backlogs.'

The operation could see defendants spending longer than anticipated in police custody.

In a statement to the Gazette this afternoon, National Police Chiefs' Council lead for custody, deputy chief constable Nev Kemp said: 'We are working closely with criminal justice system partners to minimise the impact on police resources and allow forces to continue conducting operational business to keep the public safe.'


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