Barrister Strikes and Custody Time Limits

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Custody time limits seek to regulate the maximum period that a person can be held in custody before their trial commencing. Broadly speaking, that period is one of six months.

To extend the period beyond six months, the prosecution must have acted with all due diligence and expedition, and there must be good and sufficient cause for the extension.

In most routine cases, there will not be a good and sufficient cause to extend that six-month limit; therefore, if a trial is not held within six months, the defendant will be released on bail.

Courts now have to consider whether the unavailability of defence advocates due to strike action constitutes a good and sufficient cause.

In a ruling on 1 September 2022 the most senior Judge at Bristol Crown Court held that the responsibility for strike action lay with the government, and it was not a good and sufficient cause to extend custody time limits.

This ruling, in the following terms, has since been adopted by other Judges:

“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.

I am not at all persuaded, therefore, that there is a ‘good and sufficient cause’ to extend the CTL in the particular circumstances of this case. The duration of the delay is a concern. The reason for there being a delay is the impact of the vast number of extra trials we are having to deal with from the backlog caused by the limitations placed upon our operations by the pandemic. That problem fell on top of a pre-existing trial caseload before 23 March 2020 (when I stopped all new trials for a period because of Covid) which could have been driven down lower, if we had been permitted to do so, by sitting more court days.”

This ruling presents a significant problem for the Crown Prosecution Service and government. For that reason, several cases are being appealed to the High Court, with a ruling expected late next week.

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Mr John Stokes (John.Stokes@danielwoodman.co.uk),
Mr Anthony Pearce (Anthony.Pearce@danielwoodman.co.uk) or
Mr Daniel Woodman (Daniel.Woodman@danielwoodman.co.uk).