What should judges do with potentially dangerous prisoners waiting for their trial when the barristers’ strike means their cases cannot be heard within a reasonable time?
Since April criminal barristers have been involved in a dispute with the government over fees. In a nutshell their case – perhaps I should say ‘our’ case since I am one of them – is that the Ministry of Justice has failed to implement pay recommendations put forward last November.
From the beginning of this month, defence barristers have stopped attending court in the vast majority of legally aided cases. Hardly any trials have been possible. Victims, witnesses and defendants who have prepared for trials in September have found their cases adjourned for months or even years into the future.
For defendants on bail this has been bad enough but the problems have been greatest when they are in custody.
A remand in custody is essentially punishment without a trial. In a significant number of cases it also punishes the innocent – many of whom will lose their jobs, their homes and their marriages along with their liberty. Around a quarter of those remanded do not receive an immediate custodial sentence, and of these around 35 per cent are eventually found not guilty of all charges.
The law provides two safeguards to prevent defendants languishing in jail while they wait for their trial.
The first is that they are entitled to bail before their trial unless there are very good reasons to remand them in custody. In general there are only three acceptable reasons: a serious risk that a defendant will not turn up for trial, that they will commit more offences, or that they will interfere with witnesses.
The second safeguard is that the time which they can be held in prison ahead of their trial is meant to be strictly limited.
The rules on ‘Custody Time Limits’ (or CTLs) are rather complicated, but in general those sent for trial in the Crown Court must be tried within six months if they have been remanded in custody. If the trial cannot start within six months they must be released on bail, albeit usually with tough conditions.
Court listing officers always prioritise cases where the defendant is in custody, but in practice such trials do not always start within six months: witnesses are taken ill, evidence is uncovered at the last minute, experts take longer than expected to produce reports, and more and more often either no judge, no courtroom, no prosecutor or, as is the case now, no defence counsel is available.
Judges then have the power to extend CTLs, ensuring that the unconvicted defendant remains locked up, but only if the prosecution has acted ‘with all due diligence and expedition’ and that there is a ‘good and sufficient cause’ for the extension.
There is a good deal of case law dealing with this, the effect of which is that decisions to extend time limits should only be made after very careful consideration, and never simply nodded through. Even so, the time limits are regularly extended. In December last year, long before the barristers’ action, over 1,500 people had been held in prison before their trial for over a year, and nearly 500 for more than two years. The numbers are certainly greater now.
In recent weeks the barristers’ strike has resulted in almost all trials having to be adjourned because no defence counsel have been available. In very many cases this now leads to the six month custody time limit being exceeded.
The judges’ problem is then to decide whether the inability to conduct a trial because of the barristers’ strike amounts to a ‘good and sufficient cause,’ entitling them to extend the time limits.
If they extend them then potentially innocent people will remain in custody indefinitely. If they do not some people will be released who will probably skip bail and commit more offences. The dilemma is well expressed by a Turkish proverb: ‘if I spit down I hit my beard, if I spit up I hit my moustache.’ The option of not spitting at all is not available.
It is becoming an acute problem. Presiding Crown Court judges first in Bristol, then at Manchester, Isleworth, Oxford and other Crown Courts have decided that the absence of a barrister because of the strike is not a good and sufficient cause to extend the time limits. They have therefore directed that prisoners waiting for their trial be released. Some of the cases concerned were routine, but a judge in Oxford ordered the release of four men charged with murder.
The judges’ reasoning was best explained by the Recorder of Bristol:
‘On the one hand the State demands trials to commence within an applicable custody time limit, and on the other it holds the purse strings for remunerating those who are required under our rule of law to be provided with advocacy services… The unavailability of representation for the defendant today has arisen because of a persistent and predictable background feature of publicly funded criminal litigation. I am not at all persuaded, therefore, that there is a “good and sufficient cause” to extend the CTL in the particular circumstances of this case.’
He went on to point out that delay in the current case had already been caused by the ‘vast number of trials’ in the backlog of cases ‘which could have been driven down lower, if we had been permitted to do so, by sitting more court days.’
In effect, said the judge, if the state passes a law requiring trials to take place within a certain timescale it has a duty to ensure that the resources are made available to ensure this can actually happen.
The Crown Prosecution Service has appealed, and on Monday the Bristol and Manchester cases are due to be heard together by the Administrative Court. Such is its importance that one of the two judges hearing it will be the President of the Kings Bench Division. Whatever the decision, it is likely that it will be appealed, perhaps even to the Supreme Court. Once again senior judges will find themselves dragged uncomfortably close to a political dispute.
Comments