The much-anticipated judgment of the King’s Bench Division of the High Court in the DPP’s challenge to refusals to extend Custody Time Limits (CTLs) has packed more than a few surprises. Benjamin Knight was counsel in the matter and sets-out the ruling’s key points and the implications for the future – whether the CBA action continues, or not.
In R (DPP) v Crown Court at Bristol & Crown Court at Manchester & Dursley, Smedley and Mayall [2022] EWHC 2415 (Admin), the High Court was asked to consider the legality of the first instance rulings in which judges refused to extend Custody Time Limits (CTLs) in routine Crown Court proceedings.
In summary:
The High Court chose not to quash the original rulings. It did not provide declaratory relief, as had been sought by the DPP. It did not find that it had any power to extend CTLs that had already expired. The ruling it handed down is very far from an endorsement of the DPP’s position or the Government’s conduct. Instead, it puts a date on the moment that the CJS will topple over the precipice into systemic failure. It also takes a power from the Crown Court and puts it into the hands of the High Court – because the High Court intends to set and maintain a very high bar to extensions pending judicial reviews.
The two decisions complained of by the Director of Public Prosecutions (DPP) both contained observations regarding the current state of the Criminal Justice System (CJS) and of the action by the Criminal Bar Association (CBA) members. The DPP’s argument was that the judges in those cases had considered the merits of the CBA action and the State’s response and that those considerations were not relevant to the test for extending the CTLs. The DPP also argued that the judges failed to consider adequately the defendants involved and the circumstances of the individual cases.
The further question (about which the DPP initially argued one way, then the opposite) was whether the High Court (or the Crown Court) had any power to extend CTLs when they had expired. In addition, would any order made by the High Court (substituting itself for the original decision) have effect as if it were made on the date and time of the original ruling.
I do not propose to rehearse the details of the indictments for each of the defendants (referred to as ‘Interested Parties’ in the judicial review proceedings). Suffice it to say, they are each charged with serious offences and await trial.
The rulings of HHJ Blair KC (Recorder of Bristol) and HHJ Landale (a circuit judge in Manchester Crown Court) are well known, at this stage. They have been reported upon on social media at the time.
In short, the Recorder of Bristol produced a written ruling in which he described the woeful state that the CJS is in. He (accurately) describes the fact that the criminal Bar is now refusing to work for derisory AGFS fees as wholly predictable. He underlines that the Government has not ‘fixed’ the problem of its own making.
HHJ Landale stopped rather short of the ruling in the Bristol case. She did outline the nature of the CBA action. She made clear that the situation that had arisen was, in her view, predictable. She dis not really stray into the territory of “the merits” of the action – other than to describe what she has observed in her professional life.
It is useful to set-out the key points of the ruling of the High Court but it is crucial to note that the ‘devil is in the detail’ in this judgment. Below the key points, I will explore what the real impact of the decision is and may be in the less immediate future.
This may feel like a long-read but there are important points arising. I have trial to make it more readable through added emphasis and taking the points one-by-one.
The Key Points of the Ruling (plus narrative)
(a) For the time being, adjournments made necessary by the absence of legal representation in the context of the CBA’s indefinite action announced on 22 August 2022 may in principle constitute both a good and a sufficient cause for the purposes of section 22(3)(a)(iii) of the 1985 Act. [emphasis added]
BK: No law lecture here, but the test involves the court deciding the CTL extension application to assess whether the cause of the need for the extension is both good and sufficient (hereafter ‘G&SC’). It was common ground that the absence of counsel (for this or most reasons of unavailability) could amount the G&SC. Note though: this was not a new rule being made or a change from the case law.
(b) The question whether such an adjournment does constitute a sufficient cause for extending the time limit will be case-specific. Judges considering applications to extend custody time limits should consider (i) the likely duration of the delay before the trial; (ii) whether there has been any previous extension of the custody time limit; (iii) the age and antecedents of the defendant; (iv) the likely sentence in the event of a conviction; a defendant should rarely be kept in custody if he has served, or come close to serving the likely sentence were he convicted; (v) any particular vulnerabilities of the defendant which make remand in custody difficult; (vi) in a multi-handed trial where representation difficulties apply to one defendant but not others, whether delay could be reduced by separate trials. Judges should bear in mind that the burden is on the prosecution to satisfy the statutory criteria for the granting of an extension. [emphasis added]
BK: This is a reassertion of the existing case law. I have made my skeleton argument available on this page so that the relevant case law may be identified. The point is that the battleground here is the ‘sufficient’ part of the test and that there is a non-exhaustive list of factors that a judge should go on to consider. It is important that the High Court has restated that it rests on the prosecution to prove the statutory criteria for the granting of the extension.
Please note: this has been shown to include the prosecution having to seek data from HMCTS as to available courtrooms etc. I argued that they ought to bear the burden of making checks with the Public Defender Service (all 21 of them!) and with the LAA’s ‘secret provider list’ of those willing to cross the [picket line]. This was argued against by the DPP but there is no ruling on that within the judgment. It is arguable in all cases, I maintain.
(c) In every case, judges should consider whether the public interests served initially by remanding the defendant in custody can now be served by stringent bail conditions. If so, this should be the preferred course. [Emphasis added]
BK: This is often overlooked by judges and lawyers. In reality, CTL extensions where there are listings issues (even pre-covid) were treated as inevitable by many. The authorities and the instant case strongly assert that, by the time the CTLs expire, the balance needs looking at again. Liberty vs. public interest in remanding in custody/parliamentary intent.
Accordingly, the reassertion of the need to look again at the question of bail is welcome. The conditions that may attach to bail ought to be advanced in any opposition to CTL applications. Whilst it is a separate application, it is clear that the intention of Parliament and of the courts is that bail ought to be seriously considered at the time of CTL expiry. The High Court goes on to say (in the instant matter) that CTL extensions must be considered the exception not the norm.
(d) Any extension of a custody time limit should be for a relatively short period, generally not exceeding about three months, so that the court retains the power to review the position in the light of changing circumstances.
BK: This existing guidance was amplified in the instant case. The ‘three month’ proposal was crucial to the 22nd November 2022 ‘deadline’ that was provided in this case.
In practice though, what this ought to remind us is that CTLs expiring and a trial not being heard must not be simply accepted as normal. Extending CTLs to some date in the distant future just because of a trial date being available then is also not acceptable. That is to confuse CTLs with bail. Bailing a defendant to a trial date is convenient and causes no prejudice (in most cases). Depriving a defendant of their liberty because of any reason outside of the prompt timetable set out in legislation and practice directions is wholly different.
A defendant who is remanded in custody pending trial may expect a trial within the existing CTLs. In the Crown Court, that means 182 days from first remand. I will state now that I do not remember the last time I was aware of a defendant being remanded and receiving a trial within 182 days. Maybe close a few times.
If the CTL is to be extended at all, the guidance is clear – the Court must treat that as an exceptional circumstance and one that requires regular review. That review, I suggest, would include things such as the prosecution being required to provide evidence as to courtroom availability, judicial availability, [PDS and LAA list counsel availability, if I am correct above.] That is a drastic departure from where we are now: a new date is identified in the middle of the following year. The CTL being extended to that date, whenever it may be.
The amplification of the three-month guidance is crucial in the instant case.
(e) However, if the situation remains as it is now, 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 (by which time three months will have elapsed from 22 August 2022). Once this point is reached, the absence of legal representation in the context of the CBA action is unlikely to be capable of supplying a sufficient reason for extending custody time limits.
BK: This is arguably the most important part of the ruling. It is relevant to the CBA action (ongoing at time of writing) but it is also important long after the end of the CBA action.
One may draw from this that, on or about the three-month anniversary of the start of the ‘strike’ action (22nd November 2022), the absence of counsel in the Crown Court will ‘likely’ be deemed insufficient a reason to extend CTLs. That is because it would be a part of a predictable, systemic failure in the CJS. It would be “chronic and routine”. That has twisted the Government’s arm up its back when it comes to negotiations with the CBA, in my opinion. I do not believe that it is causative but it is fortuitous timing that the MoJ made a proposal to the CBA on the evening after the judgment was handed down (i.e. 28th September 2022).
I would like to explain why I think that this point has a longer-living relevance than this dispute. I believe (and submitted in open court) that the predictability of this action (‘no returns’, then ‘week on/week off’, then ‘all out’) was clear from 2016, when an absence of counsel was predicted by the High Court itself. I argued (though it was ‘side-stepped’) that the No Returns part of the action was inevitable from the date it began (i.e. 11th April 2022) or some weeks before. For the record, my absence at trial was due to there being nobody to whom to return the brief and there being no PDS counsel available.
To avoid the question of predictability in future, I “used my crystal ball” in the High Court and asserted that, after the CBA action, we will likely see at least a couple of years of a shortfall of defence counsel. That is because so many have left in the past two years. 40% of new criminal counsel have left or moved to other practice areas in the past two years. Many senior counsel have retired. Solicitors are in the same position. Without a deal/settlement that is not only stabilising but attractive, this decline may be slowed but it will not be reversed.
Given that it is a matter of record, a lowly criminal barrister before the Court has put a marker in the ground that, lack of available counsel in the future is already predicted by many and it is likely to be long-lived. So, when the CPS/DPP seeks to argue that lack of defence counsel in the coming years was impossible to predict, it is a matter of record that it was squarely predicted in September 2022. Their argument will not be sustainable.
(f) It is neither necessary nor appropriate for judges to attribute blame for the current dispute between the CBA and MOJ to one side or the other, or to comment on its underlying causes.
BK: This is the legal basis upon which the ruling that the first instances acted unlawfully is founded. It is a statement of the obvious, I suppose. But I submitted that the Court must not blind itself to matters within its knowledge regarding the fact of the state of the CJS. Indeed, Mr Grennan (for Smedley) argued that the Recorder of Bristol had a special responsibility to know and understand the state of the CJS in his area. He is right and is supported by the authorities on that point.
The High Court has agreed with these propositions but has not gone so far as to explain what first instance judges are to do with that fact. They must not enter the fray. But they must not ignore reality. That is relevant not only to the CBA action but also to any other CJS systemic and wide-spread failings. That is still a territory – so long as the issue is wide-spread and embedded enough, upon which there may be a fight over CTLs. That is why I say that the unlawfulness of the first instance judges’ rulings has been decided, one might simply say that they were merely ‘too soon’ – and said a little too much about the merits (in the case of the Recorder of Bristol).
(g) Those given the responsibility of considering applications to extend custody time limits are, in general, highly experienced judges, and we readily acknowledge the difficulties of resolving applications to extend custody time limits in the current situation. Nonetheless, we have concluded that in each of the decisions under challenge, the judge erred in law in concluding that the unavailability of counsel could not constitute a sufficient cause for extending the custody time limit.
BK: It is probably worth noting here that the correct approach for the first instances judges to have adopted was to compare the situation as it was at the time of the Plea and Trial Preparation Hearing (PTPH) – when the trial was listed – to the situation at the time of the CTL extension application. If the cause of the need to extend was existing at the PTPH date and still existing at the time of the application, it must have been a predictable situation. It may indicate a chronic failure. It may be a routine failure. Therefore, there may be no sufficient cause to extend the CTLs. The judge should then go on to consider the non-exhaustive list of factors mentioned above. That includes considering whether bail would be more appropriate at this stage.
A reminder is due that, with the exception of the statutory bail exceptions, the offence itself or the presence of previous convictions, are not justifications for extending the CTLs, of themselves.
(h) As the custody time limits in each case have now expired, there is no power in the Crown Court under section 22(3) of the 1985 Act or in this court under section 31(5)(b) of the 1981 Act to extend those limits. There is therefore no point in quashing either of the two challenged decisions. Accordingly, although we grant the DPP permission to apply for judicial review, we refuse relief in the exercise of our discretion.
BK: Well, that settles that question. To be honest, it did not really seem in doubt.
(i) Where the DPP seeks to challenge by judicial review a decision to refuse to extend a custody time limit, a High Court judge sitting in the Administrative Court may in principle exercise the powers of the Crown Court under section 22(3) of the 1985 Act to grant a short extension of the custody time limit pending any substantive or rolled-up hearing. However, this power should only be exercised if the claim is strongly arguable and the prosecution has shown that all the conditions in section 22(3) are met. In general, an oral hearing will be required.
BK: This is the procedural change brought about by this ruling. In short, it is a little like a bail appeal. The stages would be:
- The Crown Court refuses to extend a CTLs
- The CPS objects to that refusal and there is still a period of at least a few days in which to make an application to the High Court. The Crown Court will not be granting these temporary extensions in future – though some had been doing to date.
- The CPS must apply to the High Court for an oral hearing (generally) to extend the existing CTL so that a rolled-up judicial review application may be heard. This application may only be made if the application for JR is strongly arguable. The same test as for s.22(3) must be met for this application (just as for a full application) and the prosecution bears the burden of proof as to due diligence, and good & sufficient cause.
- If the High Court grants that temporary extension, it will only be up until the rolled-up hearing date. The High Court says already that such applications for temporary extensions are ‘unlikely’ to be appropriate in many cases.
- If the existing CTL expires before the rolled-up hearing or before the application for a temporary CTL extension, then there is no way to extend it thereafter.
- The rolled-up hearing takes place. If it is post-expiry, no relief can be granted by the High Court.
Conclusions
This ruling was intended, one must assume, to clarify a few things. At the moment it was handed down, it was highly pertinent to the dispute between the Bar and the Government. The timing meant that the Executive could hear a very loud, ticking clock. The pressure was on top of being under siege by the CBA’s negotiators and a Bar that had had more than enough of being treated like fools. This was against a backdrop of a collapse in the number and capacity of criminal solicitors’ firms, and a damp squib of a Public Defenders Service that has never amounted to anything significant (except being a very costly experiment).
Looked at without the contemporaneous context, it (re)asserts some basic and fundamental legal principles.
- CTLs are a creature of parliamentary invention. They are not for the Executive (or Judiciary) to treat as anything other than supreme.
- The right to liberty, a speedy trial, family life, and security are all in play and, when the State fails in its obligations to provide all of the above, detention even of serious offenders will be unlawful.
- The Crown Court has settled into a complacency when it comes to accepting listings and resources problems and so has been setting CTLs for the convenience of listings – and not reviewing them vigorously, as it must.
- The High Court has no power to create legal fictions by pretending that its own orders were made on the same day as the orders it is reviewing.
- The High Court will be the jurisdictional gatekeeper not only to the judicial review procedure but also to extending CTLs before a full hearing can take place.
- When a CTL needs to be extended, a primary consideration must be whether bail, subject to conditions, is appropriate at the stage reached.
- Systemic or ‘chronic and routine’ failures in the provision of an effective CJS may well be taken as occurring three months after the failure begins.
Documents
Benjamin Knight’s Detailed Grounds as submitted to the High Court, prior to oral argument.
The final ruling of the High Court in the instant matter.
The Author
Benjamin Knight is the Head of Crime at Central Chambers. He was counsel for Mr Mayall in the CTL judicial review matter. As well as a comprehensive set of written submissions in the case, he also engaged in extensive legal arguments with the High Court on 26th September 2022.
Benjamin is a very experienced criminal lawyer with experience in public law matters relating to crime and prisons. He has been lead and led counsel in matters ranging from murder, courts-martial charges, manslaughter, historic rape, and international drug conspiracies. He is regarded by many as an expert cross-examination of experts in multiple disciplines. He is also experienced in coronial court practice, especially where the death relates to criminal activity, police and prisons.
He is available for instruction via his clerks who may be contacted via email or telephone.