Tag Archives: Manchester

HHJ Burke QC

This is a sad time for the Northern Circuit for we now learn of the death of HHJ Burke QC. And whilst I do not want this blog to become the informal obituary pages for the Circuit, the passing of HHJ Burke QC presents me with the opportunity to tell a tale of one of my more unusual days in court. But more of that in a moment.

Before being HHJ Burke QC, John Burke was plain old John Burke QC. And in his role as John Burke QC I had the privilege to be the junior in a case in which he also defended. And I learnt a very valuable lesson from him in that case. It is a hallmark of my conduct of the longer case, it is something of a trade secret. And here it is….

Small, strong mints.

Yes, that is correct. Small, strong mints. Nero do a fine line in them. As do Marks and Spencer in a tin. Their fiery, strong nature are enough to keep you awake during the dullest of prosecution submissions. Their small size mean they can be popped discreetly into the mouth, often without any accompanying rustle of wrappers. And they are also small enough that they do not inhibit speech if suddenly you are called upon to advocate.

So, with that lesson passed from John Burke QC to me to you (and there is an unexpected Chuckle Brothers reference), John Burke QC became HHJ Burke QC and he took up residence in Court 7 at Minshull Street.

HHJ Burke QC would not be a model for the modern judiciary. He was not a man for the Guideline. He was not really a man for long prison sentences. He definitely was not a man for a short prison sentence. Which is why it is a shame he is not the model for the modern judiciary. It is a shame there are not more like him prepared to extend a second, third or even sixth chance.

He was a friend to the Bar. He was always polite and charming to appear before. He did not like to preside over the unseemly squabble between counsel attempting to fix a case when they were available. So, when presented with competing dates and interests, he would declare, “I am not going to preside over some sort of Dutch auction” and then rise to let counsel agree a date between them.

And so to my anecdote. I was being prosecuted by my mate Gary, as he then was, now HHJ Woodhall. The case was one of assault where the defendant was a woman who had been caused all sorts of problems by an ex. She had ended up assaulting him in circumstances which were either self defence, justified or wholly wrong. At the close of the Prosecution case I rose to make a submission on one count and one count alone. It was some technical point.

So I got to my feet and said, in the time honoured fashion, “Your Honour, there is a matter of law…..”

To which HHJ Burke QC said “Quite right, well members of the jury you have probably heard enough already, so why don’t you leave us for five minutes and have a think about your verdict.” And with that he was gone from the bench and the jury were being ushered out by the appropriately named usher.

Both Prosecution and Defence Counsel were relatively young. This was new. Very new. We anxiously discussed what had happened. We looked in Archbold. I grew pale at the thought I may be the first barrister ever to have their client potted on a half time submission.

So we asked for the Judge to come back in. Respectfully I referred the Judge to the law. I pointed out that the jury needed a clear direction that they were entitled to acquit at this stage and nothing else. Thankfully the Judge agreed and asked for the jury to be brought back.

Once again the usher ushed.

HHJ Burke QC turned to the jury and said, “Well members of the jury, have you heard enough?”

This was not the direction we had agreed. I think I let out a gasp. Or maybe a squeal. Possibly both.

“Yes we have,” said a bloke on the front row, “we don’t want the case to go any further.”

I could have kissed him. We had been spared explaining this in the Court of Appeal. My reputation for not losing defence cases before the defence case remained intact.

“Well at this stage I must remind you that the only verdict you can return is one of not guilty, and it must be the verdict of you all,” directed the Judge. Which was the direction I had hoped for moments earlier, but at least we now had it.

The bloke on the front row turned to the rest of his fellow jurors. There was some whispered chat. A few head shakes. The occasional nod. He turned back round to the Judge.

“In that case, Your Honour, we would like to hear what the defendant has to say for herself…..”

This time I gasped, squealed, gulped and probably swooned. I had now managed to lose a half time submission that I hadn’t even made, the jury having determined that there was a case which cried out for an answer. If anyone was crying, it was me.

In the next half hour or so, with the Jury once more being the subject of more ushing, I managed to persuade the Judge that he should really seize the nettle and withdraw the case from the jury. I quoted some very old law, undoubtedly in quite a high pitched voice. And HHJ Burke QC did what he often did. He applied some common sense and a real sense of fairness. My client walked free and I popped a mint into my mouth, content that I now had a real, bona fide anecdote for the robing room table.

So that is my tale of HHJ Burke QC. I have more. There is the time he told me in his chambers about his chasing of a rabbit in his pyjamas. Or the time he misheard the crucial piece of evidence. Or the time when my pupil master referred to him by his first name, when he should have been calling him “Your Honour”. Or the countless old fashioned indications that he subsequently forgot giving.

Sometimes a footballer becomes so synonymous with a particular shirt number that it is always “their” number. Think Ronaldo and number 7 (although United have had a few handy number 7s). And for me Court 7 is still John Burke’s court. A courtroom in which you would appear before a cordial Judge with a sympathetic streak. So again we mourn and celebrate a life in equal measure.

Sir Andrew Gilbart QC

When Roger Farley QC passed away I was moved to write a short tribute to him. It was the first time I had done this. And now I find myself writing about the passing of another member of the Northern Circuit, this time Sir Andrew Gilbart QC. 

There is a certain symmetry to this. Roger and Andrew shared chambers together for many years. Both of them have sons who are at the Bar in Manchester. Both of them had a significant circumference. Both of them were significant characters. Both of them were formidable advocates. 

Yet where they were similar they were also so different. They were the two sides of the same coin. They were perfect examples of how individuals with very different personalities, very different styles and very different skills can achieve significant success in the field of advocacy. 

Like Roger, I met Andrew when I was a pupil. My very first day on the Northern Circuit was spent with my pupil master in Liverpool Crown Court before Mr Recorder Gilbart QC. By this stage Andrew was an incredibly successful planning Silk who so clearly missed his days of doing criminal trials as a junior. I would see Andrew socially as he was in my then girlfriend’s chambers. He would always seek me out to hear about life at the junior criminal Bar, before he would then tell me tales about his career doing jury trials back in the day. He either did a lot of criminal cases or had a lot of stories about the few he did. 

As a young barrister I played cricket alongside Andrew. It has to be said Andrew was a cricketer of very limited ability. Years later I played for the Circuit alongside his son and my friend, Tom. It transpired that Andrew was the most talented cricketer in his family. By some distance. 

By the time Tom was playing cricket (after a fashion) for the Circuit, his father was already on the Bench, firstly as a Circuit Judge in Preston and thereafter as Recorder of Manchester. It is difficult to entirely encapsulate his judicial style in a few words. Can you have a precision broadside? He was certainly a Judge who let you know his view of things, always wrapped up in his own sense of humour. There were many ways in which things became much clearer when you discovered his American heritage….

It was when he was the Recorder of Manchester that I approached him at Mess to berate him for going too easy on advocates who were not doing the job properly (I may have taken drink). He listened to my complaint. He explained why a Judge had to remain outside of the arena in that way. He then told me “you shouldn’t hold it against people, just because you think you are better at this job than you think they are”. Which was a gentle but heavy admonishment to my intoxicated arrogance. 

He became ill at the point of him becoming a High Court Judge. As far as I can see taking such office should come with a health warning. That was, to my recollection, in 2014. Over the coming weeks, months and then years there were many times when news of his health seemed bleak. Each time he seemed to defy pessimism. He took up his appointment. He then returned to work when others would have retired. For those of you who knew him or had even just appeared before him on one occasion, it is entirely fitting that he was so determined not to let illness think it could have the last word without a fight. 

In 2013 the Northern Circuit organised a meeting for criminal practitioners to discuss the Government’s intention to attack Legal Aid. The meeting was during court sitting hours and was the first concerted action in that fight. Many of us did not attend our part heard trials and hearings that day. In advance of the day I wrote to all the local Judges. The letter was signed by scores of counsel. The letter explained what action we were taking and why we thought it necessary. HHJ Gilbart QC got wind of the fact I had written the letter and asked me to see him in his chambers. 

He made me a cup of tea. For about 45 minutes we debated the rights and wrongs of the Bar’s intention to protest in this way. He reminded me of my duties as an advocate and prevailed upon me to remind those I sought to encourage of their duties. He argued as to why the judiciary could make no allowances for our non-attendance, stating the constitutional importance of maintaining judicial independence. He warned me of the potential for consequences for those involved. We disagreed about much that afternoon. 

When it came time to leave he said “Of course I have been talking to you as the Recorder of Manchester, but as the father of a criminal barrister can I just say….I hope you stick it to them.” In my discussions with my fellow plotters and protesters I did not break Andrew’s confidence when he spoke to me as the father of a friend and colleague. I hope he would forgive me for doing so now. In a way that conversation encapsulated Andrew. His intellect and rigour in the debate, his sense of duty to his judicial role and his concern for the junior criminal Bar. And it also captured how I knew him – respected member of the profession, long standing professional acquaintance who would make me a cup of tea in his chambers once every so often to hear the gossip, slightly fearsome Judge and father of a mate. 

Once again we mourn a figure who lived for their vocation who has passed away before being able to enjoy their reflections on their working life in retirement. My condolences to Tom, Ruth and Paula, to all his family and friends. 

Albert, Paul and Jacqui 

Last Thursday I was in a very excitable state. It had been a good day at work. I was off to see Paul Heaton and Jacqui Abbott for the second time this year. And I was about to set foot in the Albert Hall. 

No. Not that Albert Hall. The Albert Hall, a former Wesleyian Chapel in the centre of Manchester and one of Manchester’s shiny tiled Victorian buildings of beauty. It is now a music venue operated by those Northern Quarter types from Trof. They may never have known it, but this was always my plan. I have long looked at the grimy exterior of the building in days gone by and it featured in my dreams should I ever win the lottery. I was going to take this building and give it the Marvellous Mechanical Mouse Organ mice treatment. I would mend it, fix it, stickle it and fix it like new, new, new. And turn it into a music venue.  But I have yet to win the lottery and Trof got there before I did. So I will just have to content myself with bringing the Space Shuttle to Manchester when I win big. 

So I was tremendously excited to go there to see Heaton and Abbott once again. Neither Albert nor Paul nor Jacqui let me down. The building inside has not been knocked around. It is still so obviously a chapel. With a slightly complicated one way system for getting up and down to the toilets. Which may have confused a lady who stopped to ask me directions. 

Shaven headed and basically square in body shape, this is not the first time I have been mistaken for Security. So this lady had good reason to think I might know where she should go as she pointed to a wristband and explained she was the mother of the guitarist. 

“How tremendously fun,” I replied, instantly revealing that I was an unlikely bouncer as I spoke like one of the Famous Five. 

“Well,” she said, evidently wearied by the one way system, “it used to be exciting.”

I hope she found where she needed to be. And I hope that she felt the excitement of the audience as her son took the stage. I am sure she was proud. 

Many moons ago a friend of mine decried my love for The Beautiful South by complaining there was just too much irony. Can you have too much irony? Certainly not when they began their set, up on the altar of a stage and the pipes of a church organ behind them, with The Lord is a White Con from their latest album Crooked Calypso

In between Moulding of a Fool, Five Get Over-Excited and The Fat Man, Paul explained to us that Crooked Calypso missed out on number one spot because of lack of streaming on Spotify. He observed that his audience probably thought that the CD was a new fangled development. And looking around it was hard to disagree. I seemed to be standing amongst a sea of shaven headed/bald men of a certain age. These were very much my people. 

One of my fellow baldies observed to his bald mate (sorry, there were no other distinguishing features) that Paul was “good at lyrics” as Jacqui Abbott applied her pitch perfect voice to the words of Rotterdam;

And women tug their hair

Like they’re trying to prove it won’t fall out

And all the men are gargoyles

Dipped long in Irish stout

As an observation, this is like saying Van Gogh did good at Art and Design. Paul Heaton is the poet laureate of the broken hearted. He gives soul to the heart of the North. He even manages to give beauty to the South. 

Like all true greats at their trade he does the simple things well. Their next song was The Austerity of Love with the part chorus; 

The obesity of love

The propensity of love

The depravity of love

The austerity of love

One word change, each building a tempo on the previous, and each speaking something different of the complexity of love. In a catchy pop song. 

The chap next to me, he was bald by the way, was getting quite emotional around the time of I’ll Sail This Ship Alone and She Got the Garden. I detected a hint of recent divorce. When we got to the line “She’ll grab your sweaty bollocks, then slowly raise her knee” in Don’t Marry Her I think he was convinced the whole show was dedicated to him. 

The last couple of times that I have seen them, both Jacqui and Paul have been behind large music stands. This time they were released, Jacqui to stroll around and Paul to dance. And for fans of the Housemartins you will be glad to know it is still very much a loose knee style of dancing. But we all danced and we all sang and the room pulsated with the joy. So much so that two air cannon’s worth of gold glitter tape were greeted by a middle aged audience like puppies seeing their first snowflake. 

And so they departed the stage having finished with the Beautiful South trio of Don’t Marry Her, Good as Gold and You Keep it All In. They carried on with the nostalgia in their first encore. A Little Time is a song by The Beautiful South which featured neither Paul nor Jacqui but was Dave Hemmingway and Brianna Corrigan. You would never have known it as they sang this tale of marital strife to a hushed room. 

And as Jacqui told us with crystal clarity “promises, promises turn to dust, wedding bells just turn to rust” a very Boltonian voice just couldn’t keep it all in. 

“Don’t they just,” said the bald divorced chap, with perfect timing and a little rhyme. Pop concerts can be therapy too. 

Of course we had Happy Hour. Of course we had a second encore with a Song for Whoever and Caravan of Love. And then it was all over. All over that is until July when they return to the Castlefield Bowl. So I am off to get my tickets for that. I do not claim that this is a review, for there is no hint of criticism. I am a fan.  But I will be a disappointed fan if the fabulous song Market Street does not get an airing at Castlefield. Come on, you know it makes sense.

One Love One Heart One Soul

Some people bemoan their hometown, most people consider their hometown the finest place on earth. I fall very much into the latter category. I am a Manc, and proud of it. 

This is the reason why I found myself in bed on Tuesday morning with the radio on and tears on my cheeks. I have never before cried due to some news event, only ever shedding a tear over personal matters. But the accounts of the atrocity at the Manchester Arena filled me with sadness that spilled from my eyes. 

I understand that there are countless tragedies that happen across the world. Terrorism spreads in every continent. We should grieve for the murdered from Istanbul to Mosul and on to Paris and Nice. Yet this terrorist attack hit home like no other. Because it happened in my home. 

Every minute of the day, somewhere in the world, a child loses a parent, a wife loses a husband, a lover loses the loved. One can sympathise with their loss but you feel the grief when it is someone close to you who suffers the loss and the grief is incalculable when you are the one to suffer the loss. And so it is, even in our global age, that the bomb in a market place in the Middle East seems more remote than a massacre on the boulevards of Nice. So when you hear of the targeting of children in a spot which you have stood countless times the loss becomes your loss. The murdered could so easily be one of your family. This was a blow struck in the heart of my city. 

If you do not know Manchester then you will not know what makes it special. Mancunians are simultaneously brash and charming. Older fans of Coronation Street can think Bet Lynch, all leopard print and warmth. There is the swagger of a Gallagher and the laid back attitude of Iain Brown. The City shares the beauty of Tim Booth’s voice and the bleak landscape of a Joy Divisison song. The locals party like Bez with the melancholic wit of Morrissey. We are the music and the bands that manage to span the BeeGees to the Roses. We are the football of George Best and Rodney Marsh, of Eric Cantona and Georgi Kinkladze and of Ronaldo and Aguero. We are the Northern Quarter and the Gay Village. We are friendly and funny. We are mad and mad for it. 

Manchester has all the hallmarks of a big city. There are two premiership football stadia. And not just any old premiership football stadia but the biggest football ground in the league and the homes of the winners of fifteen out of the last twenty five league titles. There is a Test Cricket ground, not just any Test Cricket ground but the ground where Laker took 19 Ashes wickets and Botham performed miracles. There is big business and small enterprise. There is a university with Nobel prize winners. 

We have history. Roman history. Industrial history. Political history. Cultural history. And a history of how we came to be. We boast about Karl Marx, Emmeline Pankhurst, Alan Turing, L.S. Lowry and Tony Wilson. The Lincoln Letter may feature large in Tarantino’s Hateful Eight but he wrote to us first. And we built him a statute because of it. We have a ship canal. A ship canal that Mancunians built to cut Liverpool out of our cotton trade. A rivalry with our neighbours who we love to hate and hate that we love them. 

Every cliche about Manchester is true. We have hard vowels and soft water. It rains. It rains a lot. You can see, if you look hard enough, matchstick men and matchstick cats and dogs. Trams criss cross the city centre. We call siblings “our kid” and we love gravy on our chips.

So Manchester has every right to have big ideas about itself. It is big, it is bold and it is brilliant. But it is also like a village. Two main roads running parallel to each other and you can walk from Cathedral to Castlefield, from Spinningfields to Strangeways and from the Village to the Irwell in about fifteen minutes for each traverse across the city. The City Centre is a compact heart that spirals out to become Greater Manchester. 

And so I return to the bomb, the death and the despair. Proud Mancunians are heartbroken that a son of Manchester, a terrorist born amongst us, could do this to his fellow Mancunians. Targeting children, teens and parents with a callousness that defies comprehension. The City currently seems so sad. Every street corner speaks of sorrow. Every citizen wears a sombre cloak. It is a village in mourning. 

Life always goes on for those left to live it. Condolences are uttered ad infintum to the bereaved. Pledges of strength and recovery are uttered. Help is given. Comfort is received. Manchester will go back to being everything it was and always has been. But it will always bear a scar that will always hurt. Because we care about Manchester and we care about our fellow Mancunians. 

I hope to never cry tears again for the children of my city who have been murdered before they have ever thought a cynical thought. Children who were having a giddy and thrilling night out enjoying life. Never forgotten. 

Everybody Down

Kate Tempest, poet, rapper and archetypal modern day Londoner came to Manchester last night at Gorilla on Whitworth Street West. I have previously seen Tempest perform her Brand New Ancients poem at the Contact Theatre and this was a performance of her new Everybody Down album.

I confess I am a fan. Tempest is a genius of articulate naïveté. And she is a cracking storyteller. Musically this album has nothing of real note yet it is in the lyrics that the audience finds the real joy. My favourite part of the evening was undoubtedly when the performance was stripped right back to her performance poetry.

The curious aspect of the event was the assembled audience. Here we were, the beats of dual percussion musicians on stage and the rapped lyrics about Becky and a drug deal gone wrong, all being witnessed by a room full of people where I suspect the most common occupation was General Practitioner (I say that as a middle-aged, middle class lawyer).

As Tempest moved into a high tempo piece she invited us to party. And so the crowd, where heavy rimmed, Dom Joly style glasses where de rigueur, began to dance in a slightly awkward display that was vaguely reminiscent of Byker Grove. As the performer came to the front of the stage and told of grimy, lovelorn angst, the audience looked back….through the screens of their Samsung Galaxy Notes as they used the digital zoom to sharpen the image for their Facebook account. Or just had their GoPro on a selfie-stick. Street.

Tempest lamented a modern society where we live in a bubble of television to an audience desperate to upload the words to YouTube. She promised to be our voice against Islamaphobia, anti-semitism and hatred although she had no idea what she wanted to say about it, beyond the fact it is wrong. And the audience cheered. I suspect they would have cheered if she had offered to be our voice against littering the streets, inconsiderate parking in Chorlton and wearing socks with sandals.

She really is a marvel when telling a story. An ex tempore inspirational speaker she is not. If she has a message it can be told in the lyrics and the words, like the fantastic 13 Commandments that she treated us to as an encore.

If you are unfamiliar with her work go find it online. She is a rapper, poet, playwright and novelist. I suspect you can find plenty of it on YouTube…..

No Returns and CTLS

Here is the judgment regarding the CTL issue in a case that was adjourned in Manchester due to the non-availability of counsel due to the no returns policy of the CBA.

Manchester Crown Court

Date: 20/03/2014
Before :


Between :

– – – – – – – – – – – – – – – – – – – – –
– – – – – – – – – – – – – – – – – – – – –

Mr Barrie Darby for the Prosecution
Mr Michael Lavery for B
Mr Michael Johnson for F

Hearing dates : 20th March 2014
– – – – – – – – – – – – – – – – – – – – –
Approved Judgment

Mr Justice Turner:


This judgment relates to an application made by the prosecution to extend the custody time limits in circumstances where a trial which would otherwise have been effective has not proceeded as a result of the unavailability of an advocate to represent the interests of one of the defendants.


The defendants in this case are jointly charged with arson with intent to endanger life. F is additionally charged with two offences of putting a person in fear of violence by harassment.

The prosecution case is that F conducted a campaign of harassment against the complainant over a period of about a month during August and September 2013. A brief dalliance in the middle of August had encouraged F to believe that they would continue thereafter in a steady relationship. The complainant refused to entertain this idea whereupon F responded with repeated acts of harassment and intimidation. These are alleged to have included not merely threats of violence delivered by text but no fewer than five acts of criminal damage on her home and her car.

Matters came to a head on 18 September 2013 when, it is alleged, F recruited B to set fire to the complainant’s house in Walkden. At about 5am B allegedly arrived at the complainant’s address with firelighters. The Prosecution is that he used them to set fire to the house. At the time, it was occupied by the complainant’s sister and a friend. The resultant blaze caused about £10,000 worth of damage. Neither of the women in the house was physically injured.

Both defendants have pleaded not guilty to the count of arson with intent to endanger life and nothing I say in this judgment should be taken as any indication whatsoever as to the respective strengths of the cases for the prosecution and defence. This matter is published openly with my leave and with the encouragement of the legal representatives with the aim of achieving some consistency of approach in the event that similar issues arise in other cases.


The defendants were arrested, charged and prosecuted. On 10 October 2013 the preliminary hearing took place and the matter was listed for trial on 17 March 2014. The court correctly noted and recorded at the time that the custody time limit was due to expire in respect of B on 21 March 2014. Doubtless the trial date was fixed with this consideration firmly in mind.

The plea and directions hearing took place before the Honorary Recorder of Manchester on 13 December 2013. The defendants both pleaded not guilty to count one on the indictment under which they were charged with the offence of committing arson with intent to endanger life. F pleaded guilty to the second and third counts which related to the acts of harassment which he had perpetrated over the period prior to the fire.

On 12 February 2014, in the context of a long running dispute between the publically funded bar and the Lord Chancellor relating primarily to legal aid rates, it was announced that, as from 7th March 2014, a “No returns policy” would begin. It was expected to extend, at all events in the first instance, over a period of four weeks. After this time the matter was to be reviewed. Such review has not yet been undertaken. The members of the executive of the Criminal Bar Association signed up to the policy and individual barristers were invited to consider whether or not to follow suit.

On 6 March 2014, the prosecution served a notice of application to extend the custody time limits in this case on the court and the defence. The notice was served on the precautionary basis that the trial was listed to commence only a matter of a few days prior to the expiry of the time limits. It did not make any reference to the enhanced risk that the trial date could be in jeopardy if either of the advocates for the defence should become unavailable and replacements could not be found as a result of the “No returns policy”.

On 10 March 2014, those acting for B made an application to vacate the trial on the grounds that counsel originally instructed to appear on his behalf would not be available and, in consequence of the “No returns policy”, no advocate could be found who was willing to replace him. This application was refused. It was noted on the court file that the next available date for trial would not be until July 2014.

By letter dated 14 March 2014, counsel for B wrote to the court pointing out that the author was committed to another trial in Leeds which would prevent him from representing him at the trial on the following Monday. He requested that the trial be adjourned on the basis that it was unlikely that any advocate would be found to accept the brief if an attempt were made to return it.

On 17 March 2014, the defendants were produced from custody for their trial. Counsel for the prosecution and a solicitor advocate representing F were in attendance. However, there was no advocate to represent the interests of B. The case was then transferred to this court. I was informed by B’s solicitor that he had been completely unable to find any advocate willing to represent his client at trial. I adjourned the matter to today for a full hearing of the outstanding prosecution application to extend the custody time limits.

I ordered that counsel originally instructed on behalf of B should provide written details of the circumstances in which he came to be unavailable to attend and this order was promptly complied with.

I further ordered that B’s solicitor should send me a list of all chambers which he had approached in an effort to obtain representation for his client before me today. Again, this order was complied with. The list comprised no fewer than forty-eight chambers in Manchester, Preston, Liverpool, Leeds and London. No barristers from any of these chambers were both willing and able to accept the return of the brief to represent Bennett.

However, at the eleventh hour, counsel who had originally been instructed to act for B came unexpectedly free and so he was able to attend to make representations on behalf of his client.

The matter now comes before me for the determination of the prosecution’s application to extend the custody time limits in respect of the charge of arson with intent to endanger life.


Section 22 of the Prosecution of Offences Act 1985, in summary, empowered the Secretary of State to make provision by regulations as to, amongst other things, the maximum period during which an accused could be held in custody while awaiting trial in the Crown Court.

The Prosecution of Offences (Custody Time Limits) Regulations 1987 (as amended) were made pursuant to section 22 and laid down the limits beyond which the accused was not to be detained in custody in respect of any given pending offence.
Section 22(3) of the 1985 Act, however, provides for the extension of custody time limits in the following terms:

“The appropriate court may, at any time before the expiry of a time limit imposed by the regulations, extend, or further extend, that limit; but the court shall not do so unless it is satisfied—
(a) that the need for the extension is due to—
(i) the illness or absence of the accused, a necessary witness, a judge or a magistrate;
(ii) a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more accused or two or more offences; or
(iii) some other good and sufficient cause; and
(b) that the prosecution has acted with all due diligence and expedition.”

There is no suggestion in this case that the prosecution has not acted with due diligence and expedition. Accordingly, the issue to be determined is whether or not there is “some other good and sufficient cause” to extend the time limit.


The general approach to be applied to any application to extend the custody time limits was set out in the judgment of the court in McAuley, R(on the application of) v Crown Court at Coventry [2012] 1 W.L.R. 2766 at paragraphs 25 to 29 inclusive:

“The general approach to custody time limits

25 The time limit placed on trying those in custody is a vital feature of our system of justice which distinguishes it from many other countries. It puts a premium on careful management of all resources and the efficient conduct of business by the court administration under the direction of the judiciary. Not only does it provide sure means of compliance with a principle of the common law as old as Magna Carta that justice delayed is justice denied, but it has the collateral benefit that money is not squandered by the unnecessary detention of persons in prison awaiting trial at significant cost to the taxpayer.

26 The general approach of the court to an extension of a CTL is set out in R (Gibson) v Crown Court at Winchester (Crown Prosecution Service intervening) [2004] 1 WLR 1623 where a Divisional Court presided over by Lord Woolf CJ, with Rose LJ (the Vice-President of the Court of Appeal (Criminal Division)), was specially constituted to consider the proper approach of a Crown Court where an issue arose as to the availability of judges able to try homicide cases. The court reviewed the authorities, including the decision of R v Manchester Crown Court, Ex p McDonald [1999] 1 WLR 841 where Lord Bingham of Cornhill CJ observed at p 848:

“The courts have held, although reluctantly, that the unavailability of a suitable judge or a suitable courtroom within the maximum period specified in the regulations may, in special cases and on appropriate facts, amount to good and sufficient cause for granting an extension of the custody time limit.”

27 Lord Woolf CJ then commented [2004] 1 WLR 1623, para 29:

“Clearly before a court is prepared to grant an extension because of the lack of availability of a courtroom, or a particular judge required to try the case, it should go to considerable endeavours to avoid having to postpone the trial to a date beyond the custody time limits. However, it has to be remembered that the availability of a particular category of judge can be important for the achievement of justice in particular cases. The present case is an example. This is clearly a case which required to be tried by a High Court judge. While expedition is important, so is the quality of the justice which will be provided at the trial. In these circumstances it is necessary for a court considering an application for an extension of custody time limits to evaluate the importance of the judge of the required calibre being available.”

28 Lord Woolf CJ then referred to the availability of resources and the observations in R (Bannister) v Crown Court at Guildford [2004] EWHC 221 (Admin), where May LJ had said, at paras 11 and 21:

“11. As has been said on a number of occasions, indiscriminate use of the power to extend the custody time limits would emasculate the parliamentary purpose. As has also been said, and can be well understood, if Parliament willed that these should be the custody time limits, it was for Parliament also to will and provide the resources to enable courts and judges to achieve those time limits.”

“21. I have been unable to detect any particular fact referable to this case which was capable of being a particularly good and sufficient cause for extending the custody time limit. That leads to this stark conclusion: Parliament has set custody time limits for various obvious reasons. Parliament ultimately is also responsible for the provision of resources by way of judges, recorders, courtrooms and staff, to enable cases to be heard within those custody time limits. Is it then, in a routine case, to be regarded as a good and sufficient cause for extending the custody time limit that it is impossible to hear the case earlier because the resources available to listing officers make it impossible?”

29 Lord Woolf CJ then continued [2004] 1 WLR 1623, para 31:

“31. I fully understand most of the reasoning of May LJ in the passage to which I have referred. In respect of a routine case the approach which he indicates may generally be appropriate. In routine cases difficulties that arise can normally be overcome. However, I do not accept that it is right to regard May LJ’s approach as indicating that the availability of resources, whether courtrooms, judges or other resources, are an irrelevant consideration. The courts cannot ignore the fact that available resources are limited. They cannot ignore the fact that occasions will occur when pressures on the court will be more intense than they usually are. In such a situation it is important that the courts and the parties strive to overcome any difficulties that occur. If they do not do so, that may debar the court from extending custody time limits. It may well be that in Bannister further action could have been taken (or action could have been taken earlier) than was taken by the court to ensure that in that case the custody time limit was complied with. However, it is not correct, as has been submitted before us, that judges are entitled to ignore questions of the non-availability of resources.”

This case could not, on any analysis be categorised as anything other than routine. There are no likely complexities of either fact or law.

In McAuley, the court went on to deal with the proper approach to the extension of time limits in routine cases where the delay is due to a lack of resources:

“The approach the Crown Court should take in a routine case where the extension is sought because of a lack of resources
33 In Gibson’s case [2004] 1 WLR 1623 , the guidance given primarily related to the availability of judges to try homicide cases; in Ex p McDonald [1999] 1 WLR 841, the guidance was more general. It may be helpful therefore to reiterate guidance in relation to purely routine cases. If in a routine case, where there should ordinarily be no difficulty in the availability of a judge or a physical courtroom, an issue as to the availability of money by way of sitting day allocation arises, then the case must be referred to the resident judge well in advance of any issue arising as to CTL. As Annex F to the consolidated criminal practice direction makes clear, listing is a judicial responsibility and it is the resident judge who is responsible under the guidance of the presiding judges for determining listing practice, for prioritising one case over another and deciding upon which date a case is listed and before which judge. The listing officer carries out the day-to-day operation of that listing practice under the direction of the resident judge. That did not happen in this case.

34 As the extension of custody time limits involves the liberty of a defendant, the resident judge (or his designated deputy if the resident judge is away from the court centre) must be provided with information on a regular basis, so that there can be proper monitoring of cases nearing their CTL. In a small court centre, such as Coventry, budgets and other resources have to be looked on in a wider context. Such information must therefore include available alternative locations, the availability of judges, the budgetary allocation to the court and other such matters. Provided the experienced listing officer at each court gives the resident judge such regular information and there is close co-operation between courts, routine cases should be managed in such a way that money is always available to enable a case being heard within its CTL. It is, of course, essential that bail cases are not delayed and a sufficient budgetary allocation made so that justice is not denied in cases where the defendant is bailed. If more funds or judges are needed at a court centre, then that information must be passed to those responsible for the provision of money who can then review the position with the judges responsible for the listing of cases. It is wrong in principle and contrary to the terms of the practice direction for decisions to be made which are not made under the direction of the judges responsible for listing.

35 If, despite such careful management, an application has to be made to extend a CTL in a routine case because the funds by way of allocated sitting days are insufficient to enable the case to be heard within the CTL, then the application must be heard in open court on the basis of detailed evidence. It is clear from Ex p McDonald [1999] 1 WLR 841 , 846 that it is for the prosecution to satisfy the court of the need to extend CTL. It must follow that evidence from the senior management of HMCTS must be provided well in advance of the hearing to the defendant and adduced by the CPS to the court. The judge must then subject the application and the evidence to that rigorous level of scrutiny which is required where a trial is to be delayed and a person confined to prison because of the lack of money to try the case. Although other considerations may apply to cases which are not routine, lack of money provided by Parliament in circumstances where the custody time limits are unchanged will rarely, if ever, provide any justification for the extension of a CTL. If the Ministry of Justice concludes that it does not have sufficient funds for cases to be tried within CTL, then the Secretary of State must amend the Regulations and seek the approval of Parliament. If that is not done, the court has no option but to apply the present CTL and HMCTS must find the necessary money or face the prospect of a person who may represent a danger to the public being released pending trial.

36 The judge hearing the CTL application must give a full and detailed judgment. As we explain at para 43, this court recognises the decision is for the judge, but will scrutinize the matter rigorously. Without a full and detailed judgment, finding the facts and setting out all the considerations, this court cannot do this speedily and economically.

37 We make these observations because experience has shown that there has been a tendency to deal with these applications on a less than satisfactory basis.

38 In the present case, it is clear from the transcript of the hearing before Judge Carr that the CPS did not provide any evidence; the practice seems to have been followed of information being provided by the court staff to the judges. That was wholly inadequate. The case was not given that intense level of scrutiny required. We hope that the guidance we have given will ensure that if such a case occurs in the future, the application will be heard in the manner we have set out.”

In this case, there is no issue relating to the unavailability of a judge or courtroom. The delay has been occasioned entirely by the absence of representation for B.

The question arises as to whether any material distinction can be drawn between the correct approach in routine cases subject to delay through lack of availability of a judge or a court caused by a lack of resources and the unavailability of an advocate in circumstances such as those pertaining in the present case.

Article 6 of the European Convention on Human Rights provides insofar as is material:

“3.Everyone charged with a criminal offence has the following minimum rights:

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require…”

The question therefore arises as to whether the interests of justice require B to have representation at his trial for arson with intent to endanger life. The proper approach to this issue is to be found in the case of Benham v The United Kingdom (1996) 22 EHRR. The applicant in that case complained that under the legal aid scheme then in force he was not entitled to free representation before the magistrates for proceedings for his committal to prison for non payment of the community charge. The “Green Form” scheme provided for two hours’ worth of advice and assistance from a solicitor but not for representation at court. The applicant contended that this was in breach of Article 6.

The court agreed holding:

“57. The applicant submitted that the interests of justice required that he ought to have been represented before the magistrates. He referred to the facts that lay magistrates have no legal training and in this case were required to interpret quite complex regulations. If he had been legally represented the magistrates might have been brought to appreciate the error that they were about to make. He asserted, further, that the Green Form and ABWOR schemes which were available to him were wholly inadequate.

58. The Government contended that the legal-aid provision available to Mr Benham was adequate, and that the United Kingdom acted within its margin of appreciation in deciding that public funds should be directed elsewhere.

59. For the Commission, where immediate deprivation of liberty was at stake the interests of justice in principle called for legal representation.

60. It was not disputed that Mr Benham lacked sufficient means to pay for legal assistance himself. The only issue before the Court is, therefore, whether the interests of justice required that Mr Benham be provided with free legal representation at the hearing before the magistrates. In answering this question, regard must be had to the severity of the penalty at stake and the complexity of the case…

61. The Court agrees with the Commission that where deprivation of liberty is at stake, the interests of justice in principle call for legal representation…In this case, Mr Benham faced a maximum term of three months’ imprisonment.

62. Furthermore, the law which the magistrates had to apply was not straightforward. The test for culpable negligence in particular was difficult to understand and to operate, as was evidenced by the fact that, in the judgment of the Divisional Court, the magistrates’ finding could not be sustained on the evidence before them.

63. The Court has regard to the fact that there were two types of legal-aid provision available to Mr Benham. Under the Green Form scheme he was entitled to up to two hours’ advice and assistance from a solicitor prior to the hearing, but the scheme did not cover legal representation in court… Under the ABWOR scheme, the magistrates could at their discretion have appointed a solicitor to represent him, if one had happened to be in court… However, Mr Benham was not entitled as of right to be represented.

64. In view of the severity of the penalty risked by Mr Benham and the complexity of the applicable law, the Court considers that the interests of justice demanded that, in order to receive a fair hearing, Mr Benham ought to have benefited from free legal representation during the proceedings before the magistrates. In conclusion, there has been a violation of Article 6 paras. 1 and 3 (c) of the Convention taken together…”

There can be no doubt that applying this approach to the circumstances of the present case it would be a breach of B’s Convention rights if he were denied representation at trial. Doubtless, the application of the common law would also have precluded the suggestion that the trial could properly have proceeded with him representing himself against his own wishes.

It is not, in my view, open to the state to distinguish Benham by contending that convention rights are protected where legal aid is provided for in a representation order even where, as a matter of practice, no such representation is available. As the court held in Artico v Italy (1981) 3 EHRR 1:

“The Court recalls that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective; this is particularly so of the rights of the defence in view of the prominent place held in a democratic society by the right to a fair trial, from which they derive… As the Commission’s Delegates correctly emphasised, Article 6 par. 3 (c) …speaks of “assistance” and not of “nomination”. Again, mere nomination does not ensure effective assistance since the lawyer appointed for legal aid purposes may die, fall seriously ill, be prevented for a protracted period from acting or shirk his duties. If they are notified of the situation, the authorities must either replace him or cause him to fulfil his obligations. Adoption of the Government’s restrictive interpretation would lead to results that are unreasonable and incompatible with both the wording of sub-paragraph (c) and the structure of Article 6 taken as a whole; in many instances free legal assistance might prove to be worthless.”

I am therefore satisfied that in approaching an application for the extension of a custody time limit, the court should be no less vigilant in scrutinising the background circumstances when a defendant who, as here, is entitled to free representation and does not have it than when he arrives at court to find that there is no judge or no courtroom. All reasonably practicable efforts must be made to find proper alternative representation and evidence of such efforts should, as in this case, be before the court.

However, the fact that a defendant entitled to representation in any given case finds that his advocate is absent from court and that there is no substitute does not automatically mean that there can never in such circumstances be a good and sufficient cause to extend the custody time limit over the period of such adjournment as may be necessary to afford him such representation.
Those representing the defendants in this case invite me to draw a parallel between the facts of this case and those cases in which the courts have expressed reluctance to grant extensions of time owing to what amounts no more than chronic budgetary compromises leading to the unavailability of judges or courtrooms.

The feature in this case, however, which to my mind distinguishes it from those cases in which it is alleged that the timetabling of a routine case has been undermined by systemic failures of resourcing is the element of the timing of the “No returns policy”. At the time this matter was listed for trial, no-one could have predicted that the date fixed would be likely to be imperilled by a dramatic and relatively sudden change in the approach taken by the publicly funded bar to the issue of doing returns.

A proper distinction can be drawn between the chronic and predictable consequences of long term underfunding on the availability of courts and judges and the impact of an unheralded implementation of a “No returns policy” As the Privy Counsel held in Dyer v Watson and Another [2004] 1 A.C. 379 at paragraph 55:

“It is, generally speaking, incumbent on contracting states so to organise their legal systems as to ensure that the reasonable time requirement is honoured. But nothing in the Convention jurisprudence requires courts to shut their eyes to the practical realities of litigious life even in a reasonably well-organised legal system… Courts are entitled to draw up their lists of cases for trial some time in advance. It may be necessary to await the availability of a judge possessing a special expertise, or the availability of a courthouse with special facilities or security. Plans may be disrupted by unexpected illness. The pressure on a court may be increased by a sudden and unforeseen surge of business.”

It is the case that Dyer, a Scottish case, was not concerned directly with the provisions of the 1985 Act but the approach to convention principles provides useful and pertinent guidance to the correct approach to the circumstances arising in this case.

Taking into account the sequence of events leading up to this application, I am satisfied that the absence of counsel on the first day of trial provides “good and sufficient cause” to extend the custody time limit in this case. I take the view, notwithstanding the defence representations to the contrary, that it would be unrealistic to expect that effective steps could have been taken to avoid the procedural derailment of this trial which I take to be broadly comparable to the “sudden and unforeseen surge of business” referred to in Dyer.

I must, however, sound a note of caution. The state is under a continuing duty to comply with Article 6(3) of the Convention. If the unavailability of representation for defendants were to become a persistent and predictable background feature of publicly funded criminal litigation in this jurisdiction then those making applications for extensions to the custody time limits might increasingly struggle to establish a “good and sufficient cause”. The longer the present state of affairs persists the less sudden and unforeseen will be its consequences.

Furthermore, challenges are likely to arise even now when applications are made for the extension of custody time limits and the defendant is not represented to oppose them. I foresee that there will be particular problems in such cases. The liberty of the subject is at stake and the right to free legal representation may, depending upon the circumstances of the individual case, have been compromised. The court would have to exercise particular care in determining the proper way forward in the event that such a situation were to come about.


For the reasons given above, I find that in this case that there is good and sufficient cause to extend the custody time limit in respect of count one in relation to both defendants. Appropriately strenuous efforts have been made to find the earliest possible date upon which the trial can be listed as a result of which there is no longer the imminent threat that this matter will be have to be put off until July. The trial can now commence on 7 April 2014 and so I will extend the time limit to 10 April 2014. If there is any further threat to this trial date then any application to extend the time limits, if so advised, must be made promptly and will be considered on its merits upon which it would be unnecessary and inappropriate for me to speculate.