Stop barristers’ strike or defendants must be released from prison, High Court rules

Judges rule that custody time limits can currently be extended but ‘this will not remain the position for long’

Lizzie Dearden
Home Affairs Editor
Wednesday 28 September 2022 15:27 BST
Barristers strikes: Criminal barrister says she sometimes earns minimum wage

People awaiting delayed trials for violent and serious crimes must be released from custody unless the government resolves the barristers’ strike by the end of November, the High Court has ruled.

Several judges have refused applications to extend custody time limits - which govern how long defendants can be held in prison before trial - on the basis that lengthy delays caused by court backlogs and the Criminal Bar Association’s industrial action are not a lawful reason to keep people in jail.

The High Court ruled that judges in two cases, in Manchester and Bristol, had made “errors of law” in releasing alleged violent offenders on bail.

Dame Victoria Sharp KC, president of the King’s Bench Division, and Mr Justice Chamberlain found that trial days currently caused by the barristers’ strike can constitute a “good and sufficient cause” for extending custody time limits for short periods not above three months.

But they warned that following a months-long dispute over legal aid payments to defence barristers that escalated into an all-out strike in August, “this will not remain the position for long”.

“If the CBA action continues, there will shortly come a time when the absence of representation in the context of the current dispute can be considered chronic and routine,” the judges said.

“Defendants who have the benefit of existing custody time limits, including those whose time limits have already been extended, will have to be released.”

The High Court ruled that the threshold will be crossed in the last week of November, which will be three months since the CBA announced its indefinite all-out strike.

“In every case, judges should consider whether the public interests served initially by remanding the defendant in custody can now be served by stringent bail conditions. If so, this should be the preferred course,” the ruling added.

It said that judges should not keep people in custody before trial for periods longer than the likely sentence they would receive if convicted and consider any “particular vulnerability”.

The Fair Trials campaign group said it had obtained Ministry of Justice figures showing that almost 1,800 people have been held on remand for longer than a year, and 500 for over two years.

Legial director Bruno Min said: “It is unjust to hold people awaiting trial in prison for extended periods of time because of failings within the criminal justice system. But thousands of legally innocent people have been held in prison for over six months because of the long-standing backlog of criminal cases.”

The High Court warned of a “large number of cases” where defendants will soon hit their custody time limits and said the situation could not be resolved by the courts.

Judges said the government could choose to change the law on custody time limits and extend the current crown court period of 182 days.

Barristers strikes: Criminal barrister says she sometimes earns minimum wage

The move has been considered previously, with former courts minister James Cartlidge, who quit Boris Johnson’s government in July, writing in his resignation letter that officials had “worked intensively through the winter to successfully avoid having to extend custody time limits”.

The High Court said that if judges were to routinely grant extensions, it would “remove the element of parliamentary control” behind the law.

“A government which wishes to extend custody time limits will have to explain to parliament why it considers it is necessary to do so,” the ruling added.

“The primary purpose of the legislation is to ensure that the periods for which unconvicted defendants are held in custody awaiting trial are as short as reasonably and practically possible.”

Court backlogs that were worsened because of government cuts to court sitting days and exacerbated by the Covid pandemic have rocketed since the CBA started industrial action in June, with numerous trials being scheduled into 2024.

The dispute hit a stalemate after the former justice secretary Dominic Raab refused to meet barristers and they rejected a 15 per cent rise to criminal legal aid rates.

The increase will only apply to new cases from the end of this month, meaning that fees for thousands of cases stuck in the backlog are paid at old rates.

Justice Secretary Brandon Lewis met members of the CBA on 20 September (Kirsty O’Connor/PA) (PA Wire)

Mr Raab’s successor, Brandon Lewis, met the head of the CBA last week and the association said “constructive talks” were ongoing.

But no formal negotiations on barristers’ have been announced by the Ministry of Justice and protests continued outside courts on Wednesday.

The High Court said it would not “enter into the merits of the dispute” but said the CBA considers current Ministry of Justice proposals to be “inadequate to address what it regards as an existential threat to the criminal Bar and the wider criminal justice system”.

The ruling said the dispute represents a “clash between two important sets of public interests” - the protection of the public from dangerous offenders and the fair treatment of defendants under the presumption of innocence.

It said judges cannot ignore reality but “must not enter the fray”, adding: “It is neither necessary nor appropriate for judges to attribute blame for the current dispute between the CBA and MoJ to one side or the other, or to comment on its underlying causes.”

In one of the cases under challenge, the Recorder of Bristol Judge Peter Blair KC ruled that the absence of a defence lawyer arose out of the “chronic and predictable consequences of long term underfunding”.

A Ministry of Justice 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.”

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