R (DPP) v Crown Court at Bristol & Anor [2022] EWHC 2347 (Admin)
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R (Director of Public Prosecutions) v Crown Court at Bristol & Anor [2022] EWHC 2347 (Admin) concerned judicial review claims brought by the Director of Public Prosecutions challenging the refusal to extend the custody time limits of three defendants in separate criminal proceedings, one in Bristol and two at Manchester Crown Court (Minshull Street). This was a directions hearing only; the Divisional Court was unable to proceed with the substantive rolled-up hearing due to failures by the Legal Aid Agency.
The claims raised two issues described by the Director as matters of the greatest importance to the running of the criminal justice system. The first concerned the implications for custody time limit extensions of recent industrial action by members of the Criminal Bar Association in a dispute with the Ministry of Justice over publicly funded legally aided work. The second concerned the jurisdiction of either the Divisional Court or the Crown Court to extend custody time limits after their expiry in a case where a refusal to extend before expiry had been quashed.
The claims were filed on 8 September 2022. The Director did not seek interim relief but requested an urgent rolled-up hearing on 9 September because the custody time limit of one defendant was due to expire by midnight that day. Mr Justice Chamberlain, sitting as the immediates judge, recognised that the claims raised important points of principle suitable for determination by a Divisional Court and that there was a strong public interest in resolving them quickly. He rejected the requested timetable as unfair because none of the defendant interested parties had been given any opportunity to respond to claims potentially affecting their liberty or to obtain public funding for representation. A severely truncated timetable was set with the rolled-up hearing fixed for 15 September 2022.
On 12 September, after a second order was made directing that the Court should be addressed on principles of law and authorities, the Court was informed that although emergency applications for legal aid had been made, they had still not been processed. The Senior Legal Manager for the Administrative Court sent an urgent email that evening to the Legal Aid Agency expressing considerable concern and hoping and expecting the matter would be given the highest priority. By the afternoon of 13 September the applications remained unprocessed. With only one working day before the hearing, the Court had no option but to adjourn the rolled-up hearing and convert it to a directions hearing. In a third order the Court directed the Director of Legal Aid Casework to explain in writing by 2pm on 14 September why the applications had still not been processed.
At 1.48pm on 14 September, ten minutes before the deadline, the Administrative Court Office was notified by Mr Anthony Lawrence that public funding had been agreed for the defendant interested parties and that an explanation would be provided as soon as reasonably practicable under separate cover. The explanation did not arrive by 2pm. In a fourth order the Court directed that the Director of Legal Aid Casework should appear by counsel at the directions hearing and that the Court would wish to be addressed on the processes the Legal Aid Agency has in place to avoid delays in urgent judicial review claims involving custody time limits.
At the directions hearing on 15 September the Director of Legal Aid Casework, through Mr Malcolm Birdling, apologised to the Court, the parties and their representatives for the unsatisfactory way the applications for civil legal aid had been handled, for the delay this occasioned to the determination of the substantive applications and for the failure to provide a written explanation by the directed time. Mr Birdling provided an explanation of how the errors came to be made and what steps would be taken to avoid such a situation arising again. These matters were confirmed in a note provided after the hearing.
The Court was told that applications for civil legal aid are generally made using an electronic system called the Client and Cost Management System, which is not familiar to all criminal providers but can be used for any associated civil application in criminal cases, including custody time limit judicial review claims. CCMS allows providers to flag an application as urgent and ensures it is automatically sent to the relevant team, the Exceptional and Complex Cases Team. If there is particular urgency providers may telephone the Legal Aid Agency and request particular expedition. Alternatively, criminal providers seeking legal aid for associated civil proceedings may make an application on paper, which are sent to a generic email address and then triaged to the appropriate team.
The applications in this case were submitted on paper. In the case of two of the defendant interested parties a series of human errors by Legal Aid Agency caseworkers meant they were not recognised as urgent or directed to the relevant casework team. When it became clear the cases were urgent the providers were told wrongly that the paper applications needed to be resubmitted electronically. In the case of Mr Dursley the paper application simply could not be located.
The Legal Aid Agency undertook to produce step-by-step user guidance for the CCMS system for use by criminal providers in related civil claims, expected to be ready by the end of October 2022, to facilitate the use of CCMS in urgent cases. A number of steps would be taken to address the specific failures that occurred: these included revised internal case management guidance for urgent non-CCMS cases, a dedicated email address which would automatically forward applications by criminal providers for related civil proceedings to appropriate decision makers, and a specific email address for such applications ([email protected]) until that dedicated email address was operational. The note indicated that in all such cases the subject line should read “Custody Time Limits URGENT” and be marked as high importance, and that if there was particular urgency the application could be followed up with a call to the Legal Aid Agency on 0300 2002020 with the specific request for the application urgently to be brought to the attention of the Exceptional and Complex Cases Team.
The President of the King’s Bench Division, Dame Victoria Sharp, giving the judgment of the Divisional Court, emphasised that the serious consequences of the errors made in relation to the provision of legal aid should not be underestimated. The Court’s directions on expedition had been undermined, the time of the Court and the parties had been wasted and the resolution of an issue of immediate importance to these and other custody time limit cases had been delayed. She expressed the hope that the new arrangements would ensure that such difficulties would not happen again. The earliest the rolled-up hearing could now take place was 26 September. The Court was told that the Attorney General would appoint an Advocate to the Court and with the consent of all parties the Court directed that the Secretary of State for Justice be removed as an interested party to the claim. In short, the substantive hearing was adjourned due to systemic failures in the Legal Aid Agency’s processing of urgent applications, with new safeguards directed to prevent recurrence.