Swathes of defendants awaiting trial could be freed from prison unless the government fixes the Legal Aid disupute with barristers, the High Court has said.
A handful of judges have already concluded that they cannot extend the custody time limits in cases that have been delayed by the ongoing criminal barrister strike.
Director of Public Prosecutions Max Hill KC challenged two of those decisions, made at crown courts in Bristol and Manchester, and senior judges at the High Court today concluded that “errors in law” had been made.
But in its ruling, the court made clear that defendants could still be set free in the coming months, and if the strike is not over by the last week in November judges around the country may be forced en masse to release prisoners who are affected by “chronic” delays.
The strike called by the Criminal Bar Association (CBA) has led to large numbers of trials being adjourned due to walkouts by defence barristers paid by Legal Aid.
The government has proposed a 15 per cent fee increase, but is yet to yield to demands for a larger increase and new fees being applied to existing cases in the justice system.
Dame Victoria Sharp, the President of the King’s Bench Division, and Mr Justice Chamberlain, in their ruling this morning, said judges will continue to weigh up Custody Time Limits - currently set at six months - to see if it is fair to keep defendants behind bars while awaiting their trials.
“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”, they said.
“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.
“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.”
The High Court also said crown court judges should not wade into the political debate over legal aid.
In bringing the judicial review, Tom Little KC, representing the DPP, argued it was “inappropriate for applications for extensions to custody time limits to be determined based on the individual views of judges as to the competing arguments in the dispute”.
He added: “While it is invidious for any view at all to be expressed on the merits of the industrial action, the prospect that judges will reach different conclusions on the issue is one which will lead to inconsistent and unfair results.”
Judge Peter Blair KC, sitting at Bristol crown court earlier this month, ruled that the absence of a lawyer arose out of the “chronic and predictable consequences of long-term underfunding”, highlighting that the Government had “many, many months” to resolve the pay dispute.
Judge Tina Landale reached a similar conclusion in Manchester, while other decisions not to extend custody time limts, which were not part of the judicial review, have been made in Isleworth, Leicester, and Bolton.
The High Court found Judge Blair and Judge Landale “erred in law in concluding that the unavailability of counsel could not constitute a sufficient cause for extending the custody time limit”.
Noting the “unprecedented situation” of barristers on all-out strike, which was voted for on August 22, the court found that the unavailability of barristers could not have been predicted at the time the trial dates were originally set or the custody time limit was set.
“The solution to the current dispute is not a matter for the courts”, they said.
“There are different ways in which the Government could ensure that legal representation is available to defendants at the time of their trial on criminal charges, including laying regulations before Parliament seeking the variation of custody time limits.
“If the situation remains as it is now however, the statutory scheme ordained by Parliament makes it likely that, once the absence of representation has become chronic or routine, defendants who have the benefit of existing custody time limits (including those whose time limits have already been extended) will have to be released.”
In the cases at the centre of the judicial review, the judges did not quash the decisions as it concluded it has no power to order an extension to custody time limits which have already expired.
The defendants have already been set free on bail and will not be returned to prison to await their trials.
Justice Secretary Brandon Lewis has opened negotiations with the CBA in a bid to find a solution to end the strike.
The original proposal of a 15 per cent increase in legal aid fees for defence barristers is due to come into force at the end of this week.
Barristers gathered outside the Royal Courts of Justice on Wednesday morning to protest, in the 25th week of their industrial dispute with the government.
