“In case you haven’t been informed I’ve had a notice from both the solicitors and in fact from your counsel, they won’t be attending today, no disrespect to you, they are supporting an action by the CBA in their dispute with the government.
“The dispute has nothing to do with the court but to do with their legal fees. They are now several weeks into the action. I hope that has been explained to you Mr [Defendant].”
This sets the backdrop for todays application at Snaresbrook Crown Court to extend the so-called ‘Custody Time Limit’ – the period of time that a defendant suspected of a crime can be held on remand prior to trial.
A similar application, held at Bristol Crown Court, can be read in Catherine Baksi’s piece for the Law Gazette – “Judge blames chronic underfunding as he refuses custody extension“.
In Bristol, HHJ Blair KC, refused the application. At Snaresbrook, HHJ O Del Fabbro, allowed it. This raises questions about the consistency of justice across the land. Questions which hopefully will be clarified in an upcoming Judicial Review, reported to be taking place at the High Court on September 26th.
During todays 47-minute-hearing Ms Laura Kenyon, the barrister representing the Crown, explained the background for this extension request:
“Defence barristers are not currently undertaking cases that are returned from other barristers, are not taking new instructions, and are not attending Crown Courts, including for trial.“
The defendant, whose name the mouseinthecourt is redacting, was due to start a 5-7 day trial at the beginning of next week. It is understood the indictment relates to the alleged supply of drugs.
Even though his barrister might not be available His Honour Judge O Del Fabbro considered whether this was an insurmountable problem:
“It’s always the choice of the defendant to abandon his representation, I’m sure it’s been explained, he can abandon his representation and represent himself. If Mr [defendant] wanted to have his trial on Monday the court could accommodate it. However, as Mr [defendant] knows this is not a straight forward case.”
The defendant agreed.
Written submissions made by defence counsel prior to todays hearing were “simply wrong” said the Judge, as they referred to a lack of a court room and a lack of a Judge. “We have a new judge – the new resident is starting on Tuesday who might be interested in trying this case.”
In support of the application, Ms Kenyon told the court, that “the crown says the unavailability of defence counsel is a good and sufficient cause” to extend the time limit. Explaining that “such action by the bar is a rarity…it remains an exceptional circumstance… each party to the dispute is entitled to advance their view. There is a meeting next week to try and reach a settlement.” This is a “proper process and should be allowed to run its course” she concluded.
HHJ O Del Fabbro replied commenting that “a simple analysis proves… there is funding. Funding is available for representation of these defendants. It’s available for representation by solicitors and counsel.” It was only the “adequacy of funding for barristers that is in dispute“.
“There are indeed advocates who will work for [the amount of money offered]. We have had trials throughout this period where the advocates are solicitor advocates, or through the public defender services. A whole array of advocates have appeared in trials before us...The proposition made on behalf of both of the defendants is unsound. It’s not a proper analysis.“
This dispute has “got nothing to do with the courts. The courts have done their bit. The courts have court room available on Monday. We have a Judge.“
This application “boils down to the fact you would be unrepresented on Tuesday because of a dispute between the bar and the government with regard to their funding.“
“A number of defendants have had to endure prolonged periods in custody awaiting trial. No one wants to see the rights of a defendant, by not having a prompt trial, undermined … it’s not a decision taken lightly.“
“I’ve analysed the situation as it currently stands. There is no doubt the Criminal Bar have a dispute with government with regards to their particular funding. It does not extend to others who might represent you.“
“It is wrong to say there is inadequate funding… there is adequate funding. You have had the benefit of competent and reliable solicitors”.
“There is funding in place, there is adequate funding for those solicitors. The only issue is whether in the eyes of the independent Criminal Bar their funding is inadequate. They say it’s inadequate, the government says it is.“
“There are decisions of other courts dealing with their situation, dealing with the facts of those cases, dealing with cases which they described as routine. Those are not binding on these courts, neither is the divisional court decision binding on this court.“
“I am concerned about the delay on getting this back on trial. I am not going to extend the custody time limits forever.“
“In my judgement extending the CTL for such a prolonged period would be inappropriate where someone like you has been in custody since February [2022]. The court wishes to retain oversight of your welfare, to ensure matters are kept on course… I am going to extend the CTL to the 21st December…The prosecution will have an opportunity if they wish to seek a further extension“.
The next available date for this 5-7 day trial is 27th February 2023.
Application to Extend Custody Time Limit
Courtroom 5 10.00am 16/09/2022
Before HHJ O Del Fabbro
Snaresbrook Crown Court
Mouse in the Court 
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