Thousands of trials and sentencing hearings have had to be abandoned during a six-month standoff between barristers and the government over criminal justice funding.
Last week, the Recorder of Bristol refused to extend a defendant’s time in custody while awaiting trial, saying the government “holds the purse strings” and has had months to address the problems that have led lawyers to go on strike.
Now the Recorder of Kensington and Chelsea, Judge Martin Edmunds QC, has come to a similar conclusion, paving the way for three defendants awaiting trial to be set free on bail.
One is accused of arson, a second faces claims of blackmail and robbery, while the third is suspected of supplying large quantities of cocaine and heroin.
“We are now faced with a systemic failure”, ruled the judge, saying the MoJ has an “obligation” to provide Legal Aid funding for defendants who need it and ensure enough barristers are attracted to the system.
Each of the three defendants were due to stand trial at Isleworth crown court this week, but their cases had to be adjourned due to their defence barristers taking part in the ongoing Criminal Bar Association (CBA) strike.
Judge Edmunds said the barristers made individual decisions not to attend court but that was based on “the rates of remuneration being inadequate”, and those decisions “cannot be separated from the fact that a large proportion of the possible advocates are not willing to do that work for the rates on offer.”
The judge insisted he is not intervening in the dispute between barristers and the government, but pointed out an independent review of Legal Aid rates was ordered in 2018 but not published until November last year, and a further eight-and-a-half months then elapsed without proposed fee increases being introduced.
“The factors giving rise to this situation, and the remedies, have been well-known and are not sudden and unforeseen”, he added.
The defendants will soon be released from prison to await their delayed trials, with conditions attached to their bail.
CBA members voted overwhelmingly to escalate the strike to an indefinite walkout from this week, bringing large parts of the justice system to a halt.
The organisation is seeking a 25 per cent rise in Legal Aid fees, while the government is currently offering 15 per cent and has so far refused to apply the pay raise to cases already into the courts.
Barristers can only submit invoices for Legal Aid work once cases have concluded, meaning that under the government’s offer many will have to wait months and even years to start receiving the increased fees.
CBA chair Kirsty Brimelow QC told MPs on Wednesday they are ready and willing to negotiate with new Justice Secretary Brandon Lewis, after months of refusal by his predecessor Dominic Raab to enter into talks.
“What we are going to see happening increasingly is that when defendants’ custody time limits finish, they will be let out on bail and we may have on the streets people that we would rather not have on the streets”, she warned.
The criminal courts have around 60,000 cases in the backlog, with trials now being listed into 2025 and chronic delays becoming endemic in the system.
For an extension of Custody Time Limits, judges must be persuaded by prosecutors that there is “good and sufficient cause” to hold the defendant in prison for longer, and that the trial is being prepared with “due diligence and expedition”.