Lawyers’ delays in strike ‘may not be sufficient reason to extend custody’

Delays in criminal proceedings, marred by the ongoing lawyers’ strike, may not be sufficient grounds to place the accused in pre-trial detention if the dispute continues beyond the end of November, High Court judges have said.

The Chief Public Prosecutor (DPP) Max Hill KC challenged decisions made in two separate cases in Bristol and Manchester in which judges refused to extend the terms of detention of three defendants whose trials were delayed due to the unavailability of lawyers .

In a judgment on Wednesday, Dame Victoria Sharp and Mr Justice Chamberlain ruled that judges in those cases had “entered into an error of law” when they refused to keep defendants behind bars earlier this month.

However, they refused to overturn the decisions not to extend the detention periods, saying it was pointless as there was no power to extend the now expired periods.

In the ruling, Dame Victoria and Mr Justice Chamberlain said that for the time being adjourned due to the unavailability of defense counsel could be “a good and sufficient reason” to extend detention periods.

However, the judges warned that it is “unlikely” that the dispute between the Criminal Bar Association (CBA) and the government will remain a valid cause if it continues beyond the end of November.

They said that the “relevant point at which the unavailability of legal representation can reasonably be characterized as chronic or routine is expected to be reached in the last week of November 2022”.

The judges added, “Once that point is reached, the lack of legal representation in the CBA lawsuit is unlikely to provide sufficient grounds for extending the detention periods.”

They also called the current strike action “unprecedented” and warned Crown Court judges they must “refrain from supporting either side’s position” in the ongoing dispute – but that didn’t mean they had to “ignore reality”. .

They said: “Indeed, they must scrupulously avoid it, regardless of their own personal views on the merits. In short, they must not intervene in combat.

“But that doesn’t mean judges have to ignore reality.

“If the CBA action does result in representation being unavailable in a large proportion of cases, that fact needs to be addressed.”

While it is annoying to even express an opinion on the merits of industrial action, the prospect of judges reaching different conclusions on the issue leads to inconsistent and unfair results

At a hearing earlier this week, lawyers representing Mr Hill argued that Crown Court judges were “wrong” to offer their views on the merits of the wage dispute between the government and lawyers.

The judges had concluded that the unavailability of defense attorneys due to ongoing industrial action by members of the CBA was not a “good and sufficient reason” to hold the defendants in custody while their trials were delayed.

Tom Little KC, representative of the DPP, argued in written submissions at a hearing in London on Monday that it was “inappropriate for requests for extensions of detention to be decided on the basis of judges’ individual views on the competing arguments in the dispute”.

He added: “While it is galling to even express an opinion on the merits of industrial action, the prospect of judges reaching different conclusions on this issue is one that will lead to inconsistent and unfair results.”

Court hearings across England and Wales have been postponed in recent weeks due to the unavailability of some lawyers taking part in the ongoing strike.

Mr Hill has previously called the issues raised by the cases at the heart of his challenge “a matter of paramount importance to the operation of the criminal justice system over the next few weeks”.

Judge Peter Blair KC, sitting at Bristol Crown Court earlier this month, ruled the lack of a solicitor was due to the “chronic and foreseeable consequences of long-term underfunding” and stressed the Government had “many, many months”. to find a solution to the wage dispute.

Mr Little argued that Judge Tina Landale, who reached the same view in another case in Manchester, “tacitly” relied on Judge Blair’s decision, saying the wording of her judgment was “either identical or similar”.

He told the court that “on a proper analysis, these two respective decisions expressed a view that expressed fault.”

He added: “In other words, the government is to blame.”

Mr Little added: “The judges have formed an opinion which they have expressed in the course of their decision which, in our view, should not have been formed.”

David Hughes, representing a Bristol defendant – who along with the two defendants in the Manchester case is an interested party in the High Court challenge – said Judge Blair said “nothing… that was wrong, inappropriate or inaccurate” and “no error made” made law”.

The attorney said Judge Blair offered no opinion but “only expressed the reality of the situation,” including the fact that the dispute has been ongoing for many months.

Benjamin Knight, representing one of the Manchester defendants, said Judge Landale “did not deviate from assessing the merits of the CBA’s action,” instead stating that it was “anticipated and foreseeable … that such a problem would arise.” “.

Barry Grennan, representing the other Manchester defendant, argued that the solicitor’s pay dispute had become a “predictable and ongoing issue” dating back to April.

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