Criminal Barrister Barry Grennan was instructed by Diane Hackett of Howard Bernstein Solicitors to represent Benjamin Smedley.

Benjamin was charged with an indictment of wounding with intent, affray, criminal damage, and making a threat to kill. He was jointly charged alongside Adam Mayall for the same offences, apart from making a threat to kill, allegedly taking place on the 8th of March 2022.

Benjamin Smedley and Adam Mayall were both remanded in custody and were refused bail, on the 5th and the 7th of July respectively, because there were substantial grounds to believe they would commit further offences and fail to surrender. Both Smedley and Mayall have previous convictions for violence and for failing to surrender to custody.

On the 14th of April 2022, the defendants appeared in the Crown Court at Manchester (Minshull St), where both pleaded not guilty to all charges, apart from Mayall who pleaded guilty to criminal damage. Their trial was to commence on the 5th of September 2022 with the hearing estimated to last four days.

The maximum period someone can be remanded in custody pending trial should be 182 days. Upon the expiry of this ‘custody time limit’ (CTL) the court must grant bail if the prosecution has not acted with all due diligence and expedition and or there is no ‘good and sufficient’ cause to extend the CTL.

The former Lord Chief Justice of England and Wales Lord Bingham described these provisions as: “Expressly designed to protect the liberty of the citizen, assumed at the present stage not to be guilty.”

Barry Grennan said: “Keeping someone in custody for longer than it would take for the case to be prepared for trial is not right. We all know everyone has the right to be considered ‘innocent until proven guilty’ but if an accused person is acquitted at their trial, there is no way to remunerate them for the time they have spent in custody. For this reason, the time that someone who has been accused of a crime spends remanded in custody should be kept to a minimum.”

In practice, CTLs may be extended, or further extended, provided there is a ‘good and sufficient’ cause. However, both the seriousness of the offences and the shortness of the extension are not considered ‘good and sufficient’ causes.

The CTL for Benjamin Smedley was due to expire on the 9th of September 2022, meanwhile, Adam Mayall’s CTL was on the 21st of September 2022.

The Covid-19 pandemic contributed to a massive backlog in UK courts and so it was decided that the pandemic constituted a ‘good’ cause for a CTL to be extended.

The current situation where the Criminal Bar Association is taking part in ‘Days of Action’ and all-out strikes and not accepting new instructions is unprecedented. Around 80% of UK Criminal Barristers have supported the action. Courts across England and Wales have had no option but to adjourn trials, including many like this one where the ‘custody time limit’ is about to expire. Most circuit Judges acknowledge that this position was predictable once the Government was given notice of the all-out strike on the 22nd of August 2022. Given the systemic nature of the cause of these delays, Judges cannot simply extend CTLs as a matter of routine.

The co-accused Adam Mayall’s counsel was unavailable to represent him on the 5th of September 2022, the day the trial was set to commence, due to another professional commitment.

Like several other cases from around this time, due to the Criminal Bar Association’s policy, Adam Mayall was unable to find alternative representation. As a result, the trial had to be adjourned to the earliest available date, which was the 31st of January 2023.

The prosecution applied to extend the CTL for both defendants on the 1st of September 2022, with little over a week before Benjamin Smedley was due to be released. They argued that the lack of availability of defence counsel for Mayall was good and sufficient cause to extend the CTLs for both defendants.

Barry Grennan pointed out that his client, through no fault of his own, had to spend several extra months in custody and it was not Benjamin’s fault the trial had to be adjourned because of the unavailability of representation for his co-accused.

He also noted that the Judge, whilst careful not to enter the dispute between the Criminal Bar Association and the Government, was entitled to conclude that the cause of the delay was a “persistent and predictable background feature of publicly funded criminal litigation.”

He was the first to argue that Section 22 of the 1985 Prosecution of Offences Act did not empower the High Court to extend the CTL after they were expedited under statute.

The application to extend the CTL was heard on the 5th of September.

The Judge refused the application to extend the time limit, saying: “The overwhelming majority of Barristers undertaking legally aided criminal defence work in England and Wales have refused to take returns of cases from other instructed Barristers and have also refused to take on new legally aided cases.

“This has progressed to the extent that as of today, the 5th of September 2022, they are to decline to attend Crown Courts at all. It is the State that requires trials to begin within an applicable custody time limit and it is the State that provides the level of remuneration to fulfil its obligations to provide defendants with advocacy services. The defendants are entitled to be represented at trial for these serious offences.

“The State has had many months in which to resolve the current dispute over the level of remuneration in order to attract the services of Barristers to act on behalf of people benefitting from representation orders. The unavailability of representation for Mr Mayall today has arisen because of a persistent and predictable background feature of publicly funded criminal litigation.

“I am not persuaded there is a ‘good and sufficient’ cause to extend the custody time limit in the particular circumstances of this case.”

So, the application to extend the CTL was refused by the Crown Court judge. The Director of Public Prosecutions judicially reviewed the decision and argued that the High Court could use its discretionary powers (mandamus) to void the Judge’s decision and extend the CTLs.

However, the High Court accepted Barry Grennan’s argument that once the CTL expired under statute the High Court has no power to extend them, where the expiration had occurred before the application could be heard. Meaning that when his CTL expired on the 9th of September, Benjamin Smedley was released. Adam Mayall was later released on the 21st of September.

The judgement, in this case, determined that the UK Government has three months from the 22nd of August 2022 (the date on which the strikes were announced) by which time an absence of representation will no longer be capable of constituting a ‘good and sufficient’ reason for extending CTLs. Crucially this means that all the defendants with existing CTLs (including those whose time limits have already been extended) may have to be released.

Head of Kenworthy’s Chambers, Barry Grennan specialises as a Criminal Defence Advocate and is often instructed in serious criminal cases where rulings impact the law. If you have a complex criminal case and you need advice or advocacy, call our Criminal Clerks Paul Mander and Greg Highton on 0161 832 4036, email Paul@kenworthys.co.uk, Greg@kenworthys.co.uk or fill out our contact form.