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September 5, 2022

On Thursday 1 September 2022 I was due to start a two-day trial concerning three offences, which was going to be ineffective as the defence advocate is participating in the Bar Action. An application was made to extend the custody time limit (CTL), which expires this week.

HHJ Blair QC made a finding of fact that the prosecution has acted with all due diligence and expedition. The application then turned on whether the bar action was ‘some other good and sufficient cause’ (S22(3)(a)(iii) Prosecution of Offences Act 1985) to extend the CTL. The case law in Archbold paragraphs 442-451 along with the case R v Bennett & Feeney (20 March 2014) were reviewed. Paragraphs 34, 35 and 38 of R v Bennett & Feeney were particularly relevant and quoted by HHJ Blair QC in his Judgement.

Turner, J. discussed the case of McAuley [2012] 1 WLR 2766 at paragraph 34:

“34….Although other considerations may apply to cases which are not routine, lack of money provided by Parliament in circumstances where the custody time limits are unchanged will rarely, if ever, provide any justification for the extension of a CTL. If the Ministry of Justice concludes that it does not have sufficient funds for cases to be tried within CTL, then the Secretary of State must amend the Regulations and seek the approval of Parliament. If that is not done, the court has no option but to apply the present CTL and HMCTS must find the necessary money or face the prospect of a person who may represent a danger to the public being released pending trial…”

Paragraph 35 sets out:

“A proper distinction can be drawn between the chronic and predictable consequences of long term underfunding on the availability of courts and judges and the impact of an unheralded implementation of a “No returns policy…”

Turner, J. said at paragraph 38:

“I must, however, sound a note of caution. The state is under a continuing duty to comply with Article 6(3) of the Convention. If the unavailability of representation for defendants were to become a persistent and predictable background feature of publicly funded criminal litigation in this jurisdiction then those making applications for extensions to the custody time limits might increasingly struggle to establish a “good and sufficient cause”. The longer the present state of affairs persists the less sudden and unforeseen will be its consequences.”

The current situation was deemed not to be a ‘good and sufficient cause’ in this ‘routine type of case.’ HHJ Blair QC made these comments –

“This is a completely routine type of case.  The State has had many many months in which to resolve the current dispute over the requisite level of remuneration to pay in order to attract the services of barristers to act on behalf of people benefitting from Representation Orders.  On the one hand the State demands trials to commence within an applicable custody time limit, and on the other it holds the purse strings for remunerating those who are required under our rule of law to be provided with advocacy services.  In my view today’s predicament arises precisely because of the chronic and predictable consequences of long term underfunding.  The unavailability of representation for the defendant today has arisen because of a persistent and predictable background feature of publicly funded criminal litigation.”

This week is the first week of the escalated action. If the situation continues, there are likely to be many more applications for CTL extensions and potentially more refusals.

Lucy Taylor