Defendants accused of violent crimes released from prison due to barristers’ strike delays

New justice secretary Brandon Lewis to meet with striking barristers for first time after predecessor Dominic Raab refused

Criminal barristers gather outside the Supreme Court for a rally following the start of an indefinite strike action on 6 September (Anadolu Agency via Getty Images)

New justice secretary Brandon Lewis is to meet with striking barristers for the first time, amid mounting pressure over judges’ decisions to free prisoners including alleged violent offenders waiting too long for trials.

His predecessor, Dominic Raab, refused to negotiate with members of the Criminal Bar Association (CBA) through months of escalating action over government fees for defending people who cannot afford legal representation.

The stalemate has culminated in an indefinite strike, disrupting thousands of court cases amid record backlogs that were already seeing trials scheduled into 2024.

Kirsty Brimelow QC, chair of the Criminal Bar Association, said: “I look forward to meeting the Lord Chancellor and hope that this introductory meeting urgently will be followed by opening of negotiations to resolve the criminal barristers’ action of stopping work on cases as a result of the crisis in the criminal justice system.”

Mr Lewis said hundreds of victims were seeing “justice delayed” as a result of the strike. A statement on Twitter did not signal a change in approach, saying he would be using the meeting to “emphasise the need to get back to work and get justice moving again”.

A number of offenders who were being held on remand have been released in recent days after judges refused applications to extend custody time limits.

The Crown Prosecution Service (CPS) will be challenging some of the decisions in the High Court, after one judge ruled that they could not keep untried suspects in prison “because of the chronic and predictable consequences of long term underfunding”.

Judge Peter Blair QC freed a defendant, who cannot be named for legal reasons, on bail after finding that delays caused by the barristers’ strike did not pass the threshold to keep him in jail.

“The unavailability of representation for the defendant today has arisen because of a persistent and predictable background feature of publicly funded criminal litigation,” he told Bristol Crown Court on 1 September.

“The state has had many many months in which to resolve the current dispute ... today’s predicament arises precisely because of the chronic and predictable consequences of long term underfunding.”

Barristers have been on strike for several weeks (PA)

Judges are reported to have made similar rulings at Leicester Crown Court, Isleworth Crown Court and elsewhere, sparking a challenge by prosecutors that will be heard at the High Court next Thursday.

The Evening Standard reported that three defendants freed at Isleworth Crown Court on Wednesday were accused of arson, blackmail and robbery, and supplying cocaine and heroin.

Custody time limits, which are set in law to govern the amount of time defendants can be held in prison before trial, can only be extended by judges if there is a “good and sufficient cause”.

If the High Court rules that delays caused by the CBA strike and court backlog are not such a cause, it will open the door for large numbers of suspects - mostly charged with violence and drug offences - to be released when their custody time limits expire across England and Wales.

Official figures show that 11 per cent of the prison population in England and Wales, 8,763 people, were defendants awaiting trial by 30 June and the figure is believed to have risen signficantly.

“Most of those in custody on remand were being held for either: violence against the person (27 per cent of the untried population and 18 per cent of the convicted unsentenced population); or drug offences (25 per cent of the untried population and 34 per cent of the convicted unsentenced population),” a Ministry of Justice bulletin said.

The government extended custody time limits from 182 days to 238 days during the Covid pandemic, and could decide to legislate for another extension.

The former courts minister James Cartlidge, who quit during the breakdown of Boris Johnson’s government in July, wrote in his resignation letter that officials had “worked intensively through the winter to successfully avoid having to extend custody time limits”.

Figures released by the Ministry of Justice on Thursday show that the crown court backlog rose to almost 60,000 in July, while open cases in magistrates’ courts rose to 354,000.

The Victims’ Commissioner for England and Wales warned yesterday that Mr Lewis was inheriting a “criminal justice system devastated by years of cuts and chronic underfunding, with victims ultimately paying the price”.

Dame Vera Baird QC added: “At times the system barely functions. Where it does, it seems to rely on goodwill alone. This goodwill is rapidly being exhausted, as is victim patience. We urgently need genuine and sustainable investment.

“It is essential that the dispute with the Criminal Bar is swiftly and urgently resolved, or we will see profound and long-lasting damage to the criminal justice system.”

The government has announced that criminal legal aid rates will rise by 15 per cent for new cases from the end of this month, but the increase will not be retrospective, meaning that fees for those stuck in the backlog are paid at old rates.

An increase of “at least 15 per cent above present levels” with “no further delay” was the core recommendation of an independent review of legal aid that was published in December.

Its author, Sir Christopher Bellamy, said the review had been announced by the government three years previously and that underlying problems had been flagged “for many years before that”.