Government Makes Barristers New Pay Offer as High Court Says Judges Erred in Releasing Defendants

Judges 'fell into legal error' in bailing defendants over barristers' strike

Criminal defence barristers rally in support of the ongoing Criminal Bar Association action, outside the Houses of Parliament, in London, on July 11, 2022. Stefan Rousseau/PA Media

The Ministry of Justice says it has made an offer to the Criminal Bar Association (CBA) in an attempt to end the barristers’ strike.

It comes as the High Court in London ruled that judges who refused to extend custody time limits and released defendants on bail because of the barristers’ strike “fell into legal error.”

Brandon Lewis replaced Dominic Raab as justice secretary earlier this month and on Thursday he announced he had made the CBA a new pay offer which included £54 million ($58 million) of new funding and claimed they would be putting it to their members in a ballot.

The CBA wrote on Twitter, moments after Lewis made the announcement: “The members of the CBA will be balloted on suspending action on the basis of an interim package. The details are being discussed with our members. It is not a good start that the Lord Chancellor, Brandon Lewis, has insisted on going ahead with a premature press release.”

Lewis himself wrote on Twitter: “These proposals mean criminal barristers will receive an uplift in fees for the vast majority of Crown Court cases. I urge members of the criminal bar to end their strike and work with me to reduce the backlog and deliver for victims.”

Criminal barristers had originally been promised a 15 percent rise in their fees from the end of September, but the rise would only apply to new cases and not ongoing legal work, much of which has been delayed by pandemic-related lockdowns.

The details of the new offer are not clear but the CBA said “constructive talks have accelerated.”

‘Legal Error’

On Wednesday the High Court in London ruled that judges who refused to extend custody time limits and released defendants on bail because of the barristers’ strike “fell into legal error.”

In their ruling Dame Victoria Sharp and Mr. Justice Chamberlain said the lack of a defence barrister because of the strike was not in itself a good enough reason to release on bail those who were in custody awaiting trial.

Max Hill KC, the director of public prosecutions (DPP), brought a challenge against decisions made by judges in two cases in Bristol and Manchester. In both cases the judges refused to extend the custody time limits of defendants whose trials had been delayed by the strike.

Judge Peter Blair KC, sitting at Bristol Crown Court, blamed the absence of a defence lawyer on the “chronic and predictable consequences of long-term underfunding,” and said the government had had “many, many months” to resolve the pay dispute.

Judge Tina Landale, sitting in Manchester Crown Court, made a similar ruling later, which the counsel for the DPP claimed placed “tacit reliance” on Judge Blair’s ruling.

The High Court ruled the judges were mistaken, but they refused to overturn the decision to grant bail in those cases.

Sharp and Chamberlain said adjournments to trials owing to the unavailability of striking defence counsel may be a “good and sufficient cause” to extend custody time limits, at least until the end of November.

But they warned the government that if the dispute with the CBA is not resolved by the start of December the absence of defence counsel is “unlikely” to remain a valid reason for extending custody time limits.

Criminal barristers from the Criminal Bar Association protest in an undated file photo. Kirsty O’Connor/PA

They said, “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.”

That date was chosen because it would be three months since the start of the CBA’s indefinite strike.

The High Court judges said it was not their job “to inquire into the root causes of the present dispute” or to decide who was to blame for the strike.

At a hearing earlier this week, Tom Little KC, representing the DPP, argued in written submissions 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.”

“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,” added Little.

A Ministry of Justice spokesman told PA: “We welcome the judgment which recognises that the ongoing strike action does give sufficient cause to extend custody time limits.

“Judges make bail decisions independently of government but protecting the public will remain our top priority,” he added.