Judges wrong to bail defendants due to barristers’ strike, high court rules

Judges were wrong to refuse to extend the period defendants could be kept in jail awaiting trial in cases delayed by the criminal barristers’ strike, the high court has ruled.

It accepted a challenge by the director of public prosecutions (DPP) to decisions made by judges at Bristol and Manchester crown courts not to extend the period that three men in two cases could be held on remand beyond the six-month limit.

In both cases, the judges had determined the lack of any defence counsel because of the strike over legal aid fees was not sufficient cause to hold the defendants in prison any longer.

Amid an increasing number of cases in which defendants have been bailed because of a lack of counsel since industrial action escalated into an indefinite walkout from 5 September, the head of the Crown Prosecution Service was hoping to lay down a marker for crown court judges by challenging the two decisions.

Accepting the arguments by Tom Little KC, on behalf of the DPP, Dame Victoria Sharp and Mr Justice Chamberlain said the lack of counsel was unforeseeable rather than “chronic or routine” and so was a good and sufficient reason for extending custody time limits (CTLs).

In their written judgment published on Wednesday, they made clear, however, that such a position was only for the time being.

They said by the last week in November, when three months would have passed since the Criminal Bar Association announced its indefinite walkout, “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”.

Sharp and Chamberlain accepted the difficulties of resolving applications to extend CTLs in the current situation but said Judge Peter Blair KC, sitting at Bristol crown court, “fell into error in attributing the current unavailability of representation to ‘long-term underfunding’ [of the criminal justice system]”.

They decided Judge Tina Landale, at Manchester crown court, also erred in law, while noting she made no reference to long-term underfunding.

In a general warning to crown court judges, they said: “It is neither necessary nor appropriate for judges to attribute blame for the current dispute between the CBA and MoJ [Ministry of Justice] to one side or the other, or to comment on its underlying causes.”

Despite accepting that the judges in Bristol and Manchester erred in law, they said once the CTLs had expired there was no power to extend them and so refused the DPP’s application to quash the decisions.

The two men accused of violent offences at Manchester crown court were freed on bail, but the Bristol defendant remains in jail as he was remanded on two counts to which he pleaded guilty, of the five with which he is charged.

While Sharp and Chamberlain stressed that whether an adjournment constituted a sufficient cause for extending time on remand would be case-specific, their decision provided some guidance to judges increasingly faced with decisions about whether to release defendants, who are innocent until proven guilty but potentially dangerous, while the industrial action continued.

Since the indefinite strike began, defendants released on bail on expiry of CTLs have included four accused of murder in a case at Oxford crown court, a man facing trial at the same court for sexual assault, and people accused of arson and robbery.