Judges ‘wrong to take sides in barristers’ pay dispute’

Judges wrongly took sides in the barristers’ dispute when they blamed the Government over decisions to release suspects from jail, the High Court has been told.

Lawyers for the Crown Prosecution Service (CPS) said judges were wrong to express views over the merits of the pay dispute when refusing to keep defendants behind bars.

The CPS is challenging 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.

The judges concluded that the unavailability of defence barristers, due to ongoing industrial action by members of the Criminal Bar Association (CBA) was not a “good and sufficient cause” to keep the defendants locked up on remand while their trials were delayed.

Judges' rulings ‘unlawful’

In one, Judge Peter Blair KC, sitting at Bristol Crown Court earlier this month, ruled that the absence of a lawyer arose out of the “chronic and predictable consequences of long-term underfunding”, highlighting that the Government had “many, many months” to resolve the pay dispute.

Tom Little KC, representing the CPS, argued at a hearing in London on Monday that the judges’ rulings were “unlawful” and should be quashed.

Mr Little said in written submissions that it was “inappropriate for applications for extensions to custody time limits to be determined based on the individual views of judges as to the competing arguments in the dispute”.

He added: “While it is invidious for any view at all to be expressed on the merits of the industrial action, the prospect that judges will reach different conclusions on the issue is one which will lead to inconsistent and unfair results.”

He said judges who refused to extend custody time limits “did intrude on funding decisions and formed a view about them … An arena they should not have descended into.”

He added: “Properly analysed, these two decisions involved a view being expressed as to fault. In other words, this is the Government’s fault.”

There had been a “total failure to engage with a bespoke case-specific approach to the facts before the judge”, claimed Mr Little.

Judge made ‘no error of law’

Mr Little said the director of public prosecutions was not making arguments about the “merits” of the pay dispute but was seeking “clarity and some certainty” with the legal challenge.

When an accused person is sent for a crown court trial, the custody time limit until the start of trial is 182 days or around six months. It can be extended only if certain criteria are met, including that there is a “good and sufficient cause” to do so.

David Hughes, representing the Bristol defendant - who is an interested party to the High Court challenge, along with the two defendants in the Manchester case - said Judge Blair said “nothing ... that was wrong, improper or inaccurate” and made “no error of law”.

Mr Hughes added: “He was making that ruling from a position of considerable knowledge and experience, being the resident judge at a busy court centre ... and he was entitled to make that decision based on that knowledge and experience.”