Judges were wrong to release criminals because of barristers' strike, High Court rules

Barristers' strike - Richard Baker/Getty Images
Barristers' strike - Richard Baker/Getty Images

Judges were wrong to release suspected criminals from jail because of the barristers’ strike, the High Court has ruled, but has set the Government a two-month deadline to resolve the pay dispute.

The High Court found the judges “made errors of law” when they refused to extend the custody time limits to keep the defendants in jail after their barristers failed to turn up because of the strike.

The two High Court judges - Dame Victoria Sharp and Sir Martin Chamberlain - determined that the strike by the Criminal Bar Association (CBA) may be “good and sufficient” cause in principle for the release of defendants who reached the six-month limit spent in jail on remand.

However, they refused to overturn the release of suspects by the judges in Bristol and Manchester and warned that there would come a point in two months’ time at the end of November when “the CBA action is unlikely to be capable of supplying a sufficient reason for extending custody time limits”.

With 13,000 alleged offenders being held on remand, it could lead to significant numbers being released once their six-month custody time limits lapse.

Brandon Lewis, the new Justice Secretary, has initiated talks with the CBA in a bid to resolve the dispute in which the barristers have rejected a 15 per cent fee rise as too little, too late. They want it backdated to cover cases in the 60,000 strong backlog, which the Government estimates could cost an extra £60 million.

'Equivalent to judges holding gun to government’s head'

The Ministry of Justice (MoJ) welcomed the verdict that strike action was sufficient cause to keep suspects in jail, adding: “Judges make bail decisions independently of government but protecting the public will remain our top priority.”

A CBA source also welcomed it: “It’s equivalent to the judges holding a gun to the Government’s head, saying: ‘Come up with a lasting settlement or else we will allow precisely those reasons we rejected today and people can make up their own minds to release people in two months’ time’.”

The judgement came after the Crown Prosecution Service (CPS) brought legal action against decisions made in two separate criminal cases in Bristol and Manchester crown courts, where judges refused to extend the custody time limits of three defendants due to face trial.

Max Hill, KC, the director of public prosecutions and head of the CPs, argued that judges were "wrong" to express views over the merits of the pay dispute between the Government and lawyers.

The two High Court judges described the current strike action as "unprecedented" and warned Crown Court judges they must "refrain from endorsing the position of either side" in the ongoing dispute - but that did not mean they had to "ignore reality".

They said: "Indeed, they must scrupulously avoid doing so, whatever their own personal views about the merits. In short, they must not enter the fray. This does not mean, however, that judges are required to ignore reality.

"If, as a matter of fact, the effect of the CBA action is to make representation unavailable in a large proportion of cases, that fact must be confronted."

Their ruling said it was not necessary for judges "to inquire into the root causes of the present dispute" and that "attribution of fault is irrelevant".

Dame Victoria, president of the King’s bench division of the High Court, and Mr Justice Chamberlain declined to quash the challenged decisions in Bristol and Manchester as the custody time limits in the cases had now "expired".

"It follows that neither the crown court nor this court has any power to extend those limits," they said.

'The judge fell into error'

The two judges said that in the Bristol Crown Court decision, the cause of the delay to the trial "could not yet be said to fall into the 'chronic' or 'routine' category". Judge Peter Blair KC "fell into legal error" and "should have gone on to consider on the facts of the case whether the extension should be granted", they said.

"We consider that the judge fell into error in attributing the current unavailability of representation to 'long-term underfunding', Dame Victoria and Mr Justice Chamberlain concluded.

The High Court judges said in relation to Judge Tina Landale in the Manchester case that "the stage had not yet been reached when it could be said that the general unavailability of legal representation as a result of the dispute could not constitute a sufficient cause to justify extension of the custody time limits".

"To the extent that the judge concluded that it could, she erred in law," they added.

The High Court judges warned that "the relevant point at which the unavailability of legal representation can properly be described as chronic or routine is likely to be reached by the last week in November 2022".

They said this will be when three months had elapsed from August 22, when the Criminal Bar Association's indefinite strike action was announced.