Custody time limits – no, not the expiry date on a tin of Ambrosia, but how long a person suspected of a crime can be held in prison prior to trial. The High Court was asked to clarify what counts as a ‘good and sufficient’ reason to extend them.
In a society where you’re innocent until proven guilty being held on remand is a serious infringement of your rights. It is entirely justified in some cases, although some deprived of their liberty will ultimately turn out to be completely vindicated at trial.
Article 6 of the European Convention on Human Rights becomes engaged with CTL’s. I’ve plucked out a couple of key points:
…everyone is entitled to a fair and public hearing within a reasonable time…
Article 6 of the European Convention on Human Rights
Everyone charged with a criminal offence has the following minimum rights:
– if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
The state provides legal assistance through the legal aid scheme. However, for reasons much more eloquently explained by others, Barristers funded by the scheme are, for want on a better word, on strike. This means some trials are having to be adjourned as the defendants do not have representation.
It’s against this backdrop that some Crown Court Judge’s (although not all, as reported by the mouseinthecourt) have started to refuse to extend the Custody Time Limits citing the lack of a defence barrister as not meeting the test of a ‘good and sufficient reason’.
A report by The Guardian “Four murder accused to be released on bail amid legal aid strikes” explains this in further detail.
The Director of Public Prosecutions applied to the High Court to argue (among other things) that the decisions made by three Crown Courts not to extend the custody time limits were unlawful.
A hearing was held at the Royal Courts of Justice on September 24th 2022 (the one initially scheduled for Sept 15th had to be adjourned after failures by the Legal Aid Agency).
The mouseinthecourt attended court and live tweeted proceedings. Here follows a slightly curated (with typos fixed and clarifications made) version of the original twitter thread.
Custody Time Limit Judicial Review underway. DPP say “Both were unlawful decisions for the reasons set out in the Skeleton Arguments … and that the court should quash each of them”
Tom Little KC says both Judges who refused to extend CTL’s “did intrude on funding decisions and formed a view about them…An arena they should not have descended into”
Court told “Properly analysed these two decisions involved a view being expressed as to fault. In other words this is the governments fault.”
Tom Little KC: “Not a position where no trials have started at all. Barristers have made an individual decision not to attend… That is capable of, and here was, bearing in mind the circumstances, a good and sufficient cause”
Chamberlain J: “These decisions are being taken in very large numbers to the extent that it is predictable that a large number of cases will have to be adjourned…One can predict across the system a very large number will.”
Chamberlain J: If dispute carries on for another 6 months then in “a large number of cases the custody limit would have been doubled. Nobody has put an instrument before parliament to do that.“
TLKC replies “the government does have that option”
TLKC refers to Bristol Judgment – “… today’s predicament arises precisely because of the chronic and predictable consequences of long term underfunding”
Says this must relate to funding for advocates. Judge took into account “a matter that he should not have done so”
TLKC says lower court judge in Manchester adopted similar language. Skeleton Argument says “other extensive similarities between the two judgments may imply that she was adopting, or in any event was influenced by, the reasoning of HHJ Blair K.C. [Bristol Judge]”
TLKC refers to @TheCriminalBar ballot result announced on Aug 22nd. Says was “a significant and material change in circumstances” which lower court Judges failed to take into account. Says trial date had been fixed on 8 April 2022 and vote could have ended action
On subject of remedy – TLKC repeats request in written submissions: “declaratory relief, a quashing order and an order substituting a decision extending the custody time limits, to be treated as if it had been made on the date of the decisions under challenge.”
TLKC is making submissions on the law. Says decision can be quashed if “without the error, there would have been only one decision that the court or tribunal could have reached.“
President of Kings Bench Division queries the ‘only one decision’ aspect of the law. Is it “confined to cases where the court can only reach one decision?” she asks
TLKC says it applies where there is an “obvious error that only admits one answer. That is a high threshold to cross”
Chamberlain J asks that if CTL extension quashed “What happens to the decision to grant bail?“
Not quashed says TLKC – “Does not sweep away the consequential decisions of lawfully made orders”
Discussion over who would make the remedy – this High Court or sent back to the Crown Court? And could an interim remedy be made?
Chamberlain J – “I think an interim quashing order is a remedy that doesn’t exist”
Tom Little KC has ended his submissions on behalf of the Director of Public Prosc and the court has adjourned [at 11.58]
And back at 12.03
Chamberlain J requests from TLKC “In part a short summary of the CBA’s position and the MOJ’s position”
And “Second thing is a note of the current backlogs, again from publicly available sources.” He explains that he wants any reader of the judgment to “understand the context of the present dispute”
Submissions by David Hughes, for the first interested party
David Hughes for the 1st Interested Party begins his submissions
Says HHJ Blair K.C., the Hon Recorder of Bristol, runs a “busy court centre” and was “perfectly entitled to hold and express the views that he did based on that knowledge and experience”
(Some matters raised relate to active criminal proceedings are subject to reporting restrictions)
Mr Hughes:”Backlogs existed prior to March 2020” and were “increased by the restriction caused by the pandemic“
Submits “Those backlogs pre-March 2020 were contributed to by the number of sitting days that were allowed that restricted the number of trials the courts could get on”
Continues to say the Bristol “case wasn’t sudden and dramatic – it was predictable…this was a well known problem“
Chamberlain J raises Q of when court knew it would be a prob. Date of CBA ballot in Aug ’22 raised again
Mr Hughes says he isn’t aware of any communications prior to the 23rd August that counsel would be unavailable
Responding to submission that judge didn’t take into account facts of the case Mr Hughes says :
“He clearly did. He set out the chronology which is not disputed. It was fairly uncomplicated. There was an arrest, charge, remand in custody, PTPH and a trial date fixed.”
Mr Hughes: “There is no doubt there has been a considerable number of similar rulings in the Crown Court system. Rulings again coming from judges who are extremely experienced of the reality of operating Crown Courts. That, in my submission, is a powerful feature”
Concludes “In short, in my submission, there is no error of law in this case” and moves onto discussion of remedy
Mr Hughes says “So far as any order as you may or may not make in this particular case, in my submission, it takes effect from the date of this courts order. It does not go back.”
Adds “When a CTL expires it remains expired. It cannot be reclaimed, or reintroduced, or brought back. It has gone“
Says that was deliberate intention of Parliament
Mr Hughes submits that an application for interim relief has to be put in to this court before the expiry of the CTL
Says that where a CTL has expired “there is nothing really that can be done about it”
Submissions by Barry Grennan, for the second interested party
Barry Grennan for the 2nd Interested Party begins his submissions.
Says “one of the key questions this court has to consider, is at what stage does an issue become predictable and more serial?”
Mr Grennan says “The fact is that the dispute had been carried on from April and was escalating to the point when the courts and Circuit Judges were having to reconcile the prospect of one week on and one week off”
“and then the prospect of an action by the overwhelming majority of the Criminal Bar that they were to withdraw their services completely, which they did”
Says “The government knew on the face of it, unless something was done, the courts were essentially looking at potential standstill and the rapid increase of the backlog”
“when the recorder of Bristol had to make a decision – had it at that point become become a predictable and persistent problem? In our respectful submission it clearly had” says Mr Grennan
Court’s were “having to deal with cases which absolutely had no chance whatsoever of being heard within the CTL. It didn’t start on that day, it may get worse but it didn’t start on that day”
Mr Grennan tells court that in his 40 years “I have never known this type of action happen before”
Says “A judge is entitled to look at the lack of representation as a good and sufficient cause.”
President of the Kings Bench Division asks: “What is the position for a defendant if two different judges in different courts take a different view on the merits.”
Grennan replies saying the remedy would be a judicial review
President clarifies question – It is said Recorder of Bristol “gave his own personal view on the rights and wrongs of the dispute and allow that to influence the decision”
President asks if it “would be open for a different judge to take a different view and make a different decision.“
Grennan says yes – Judges are “Entitled to use their personal knowledge of their particular area”
Mr Grennan says 6 months (length of CTL) is a long time to keep a potentially innocent person in prison. “6 months is a fairly long time indeed”
The court has Adjourned for lunch.
Submissions on remedy are expected to be made when we return
And we’ve resumed.
Mr Grennan submits on Q of remedy “The Croydon case is still good law and that after the expiration of the CTL, as indicated in s22 of the act, neither the Crown Court or the High Court has the power conferred upon it by statute or anywhere else to act”
Submissions by Ben Knight for the third interested party
We’re now hearing submissions from Ben Knight for the 3rd Interested Party
Mr Knight explains there is something of an “elephant in the room in terms of procedural history” with his client.
Says he was booked elsewhere for trial so couldn’t attend for that reason. Says his client “asked solicitors to contact public defender services“
He says this is “One part of the state’s answer to its statutory obligation in so far as article 6 is concerned.”
“The response when it eventually came was they had no one available“. He submits that he understands only 21 [the court was told 28 but this was corrected post hearing] barristers were availably through the service nationally
Ben Knight: “The non-availability of counsel is not going to get better, it’s going to get worse.”
In contrast to the other cases we’ve heard today this was not one where the barrister became unavailable as a result of the CBA action
“The defence community will only exist for as long as the community is properly remunerated… It did not take a crystal ball in 2016 to find where we are now“
[Referring to case in 2016]
“Other parts of the system are not functioning in the way they should ought” says Mr Knight as he explains a potential representative could not arrange access to the prison to meet with his client
[A number of case specific facts are being submitted, which as they relate to live criminal proceedings are subject to reporting restrictions]
In essence, the lack of a barrister was not the only issue preventing the trial from going ahead. There were issues with witnesses & disclosure. The CPS had certified the trial as not ready on Aug 9th
Mr Knight – “there is a difficulty submitting that a court must not ever observe or comment upon problems within the CJS because they are inherently political…”
Continues “The difficulty with that is there are several authorities where judges of this court, categorically comment on parts of the justice system”
As for Judges making different decisions Mr Knight compares to bail applications – “Every court centre will have different judges who apply the bail act in a robust manner… they are still applying the same set of rules… they have to give reasons and are accountable for that”
Mr Knight – “If [Judges] examine, in any way, why counsel are not before them and it’s found to be of a political nature then the test might as well not be there.”
Chamberlain J asks “Why is necessary for a Judge to go into the prior causes of the dispute?”
Mr Knight replies – “My Lord, because the Authorities do. In the event that something is predictable … where they are required to act … it’s almost impossible to make sense of the situation in this case without looking at the nature of it.”
“One of the issues in this case is that here there is a duty on the CPS to discharge to the civil standard burden of proof, that the steps that ought to have been taken, that could have been taken, were.”
On Q of remedy Mr Knight says he has had the benefit of hearing & reading submissions of his learned friends so far and “I adopt what they say”
Submissions made by Louis Mably KC as Advocate to the court
We’re now hearing from a barrister whose name I didn’t catch🙄[… but now do!]
LMKC says the CPS must prove “a good cause and a sufficient cause” and that “a good cause is not necessary a sufficient cause”
He says “the prosecution cannot rely on systemic failure” to extend the CTL and that “a system that has delays baked into it will not meet” that test
LMKC says one of the issues is “the extent to which the present issues truly represent a systemic failure” in the CJS
Says “it is simple not possible to reach a conclusion, in a judicial context, on the merits of industrial action” as “there can be no right or wrong answer”
“Absence of counsel is, in principle, a good cause and is capable of being a sufficient cause depending on the facts of the case. I don’t mean the merits of the [CBA Action]”
Chamberlain J says there comes a point when the unavailability of counsel becomes so routine and predictable that CTL shouldn’t be extended.
“The question we have been grappling with is ‘when is that point is reached?’”
“It is inevitable” that that point would be reached comes reply but it’s “not possible for this court to pinpoint a time.“
The President of KBD comments “we don’t have a crystal ball”
“It’s not uncommon for a court to extend for 3 months when the trial date is in 6 months. Courts are seeing if they can bring cases forward”
“There does come a point when the matter has to be considered systemic. The government will have to address the problem practically or another way, which happened during covid, through regulatory amendment to extend the time limit. There are options open to the government”
Chamberlain J replies “It’s not for us to say what parliament will make of it, it is for us to look at the mechanism under the 1985 act”
Chamberlain J adds “The issue might be said to be that if the decision is made to extend CTL on a routine basis, that could be said to have the same effect as an instrument varying the time limit but without the opportunity for parliament to object”
On the Manchester case we’re told “The only inference to draw is that a view was being expressed that the government was at fault for the industrial action. The Judge was expressing a view on the merits”
Chamberlain J replies “Looked at through the prism of Article 6(3) the state is under an obligation to have available publicly funded representation where the interest of justice requires it.”
LMKC, replies “The only way the state could have failed, is that the state was at fault for counsels’ refusal to attend.” although concedes that it “could be said that cannot be distinguished from the industrial action”
On Q of relief … any interim relief could be requested from the Crown Court rather then here. Chamberlain J says he is aware that such apps have gone in pending this courts Judgment
Response from Tom Little KC
TLKC says re: elephant in the room in the Manchester case that “this is really a no returns case rather than ‘a not going to court anymore’ case“. Says submission “fails to grapple what the evidence reveals which is that there was late notification”
TLKC says “We are still, if I may use this terminology, at an exceptional time in the chronology. We have not reached a state“… where non-attendance is routine
Parting comments from the Bench
The hearing ends. President of KBD says they are “very grateful to all counsel in this case. We will endeavour to give judgment in this case as soon as possible, hopefully in a few days”
Judgment
Judgment was handed down on September 28th 2022 and can be read on BAILII.
In short – The DPP won: “the judge[‘s] erred in law in concluding that the unavailability of counsel could not constitute a sufficient cause for extending the custody time limit“
As they have now expired they can’t be retrospectively reactivated.
Hearing Details
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
DIVISIONAL COURT
Case Number : CO/3263/2022
Court Room 4
Royal Courts of Justice
Strand, London, WC2A 2LL
26th September 2022 10.30am
Before:
PRESIDENT OF THE KING’S BENCH DIVISION
MR JUSTICE CHAMBERLAIN
Between:
THE KING
On the application of
DIRECTOR OF PUBLIC PROSECUTIONS
Claimant
– and –
(1) CROWN COURT AT BRISTOL
(2) CROWN COURT AT MANCHESTER (MINSHULL STREET)
Defendants
– and –
(1) WILLIAM DURSLEY
(2) BENJAMIN SMEDLEY
(3) ADAM MAYALL
Interested Parties
Tom Little KC & Victoria Ailes (instructed by Crown Prosecution Service) for the Claimant
David Hughes (instructed by Kelcey and Hall Solicitors) for the 1st Interested Party
Barry Grennan (instructed by Howard Beanstein Solicitors) for the 2nd Interested Party
Ben Knight (instructed by Cuttles Solicitors) for the 3rd Interested Party
Louis Mably KC (instructed by the Attorney General’s Office) as Advocate to the Court
The Defendants were not represented
Mouse in the Court 