The Government was today accused of “systemic failure” in the justice system in a growing row about an outspoken judge’s criticism of its response to the coronavirus crisis.
Judge Keith Raynor has twice attacked the Ministry of Justice’s handling of the pandemic while refusing to rule that defendants could be held in custody for months longer while they await their trials.
In his excoriating rulings, the Woolwich crown court judge said the Government’s response to the current crisis was “too little, too late”, he claimed measures to keep the system running had not been properly explored, and attacked ministers for failing to inject emergency funds into the courts.
In the wake of the second ruling, Judge Raynor was stripped of powers in an attempted murder case on the orders of one of Britain’s most senior judges, to be replaced by High Court judge Mrs Justice Whipple.
Today Sarah Forshaw QC, representing the attempted murder suspect, echoed Judge Raynor’s attack on the Government and warned that top judges may be accused of “bias” for their handling of the case.
“The senior judiciary ought not not to be shipped in, in the circumstances in which your ladyship has been, to replace this particular trial judge at the 11th hour because it will look and inevitably will look as if the senior judiciary are trying to sow this one up,” she said, applying for Mrs Justice Whipple to step down from the case.
Ms Forshaw said the public will suspect an “unwritten agenda” of trying to shutdown Judge Raynor, as top judges have been working “hand-in-hand” with the Government since March on the justice system’s response to the pandemic.
“A reasonable inference as to why the transfer has been ordered – and the only sensible inference in the absence of further information – is that the senior judiciary are unhappy with the rulings of Judge Raynor and wished to avoid a possible further judgment in similar vein”, she argued.
“The reasonable inference is that there is an agenda from the senior judiciary to prevent similar decisions being taken. That inevitably gives rise to an inference of apparent bias.”
A 39-000-strong backlog of crown court cases existed before the pandemic struck in late March, forcing the shutdown of all jury trials and large swathes of the justice system.
Latest figures show the backlog has now grown by more than 7,000, with courts struggling to host more than a handful of trials each due to social distancing measures.
In his rulings, Judge Raynor claimed that added court capacity at town halls, military facilities, cinemas, and conference centres had not been properly secured, he said an £80m rescue package announced last week was not sufficient, and blamed the government for the current crisis.
Ms Forshaw said suggested “underfunding of the criminal justice system for years and years” was the root cause of the crisis, “exacerbated” by the pandemic, and she argued: “The consequences of years of underfunding have come home to roost.”
“Our case is there has been a failure to do everything possible to keep the courts running”, she said, insisting the government was to blame for “systemic failure” and arguing a defendant who has already been in custody for more than 500 days should not be held any longer.
“It is too little, too late from the State over the backlog, which was the government’s fault in the first place and is unmanageable now because of it.”
She said the current rolllout of plexiglass in courts, to enable more trials to be held within social distancing guidelines, had come months after other countries took the step, and added that the courts do not currently have a track and trace system or temperature tests at the entrances.
Ms Forshaw was arguing for her client to be freed on bail while awaiting his trial, now set for January next year, and issued a warning that droves of defendants may have to be set free in the coming months.
“Even if 250 jury rooms are available come November, it’s not going to be nearly enough to prevent defendants remaining in custody for years”, she said.
“This is going to be mirrored around the country. There comes a point where courts will have to release unconvicted defendants.”
Prosecutor Sarah Przybylska argued that custody time limits in this attempted murder case should be extended, and insisted that Judge Raynor may be the one accused of bias rather than Mrs Justice Whipple because of “deep-seated” views that “go beyond an analysis of the facts in a particular case and extend to a general criticism”.
She argued Judge Raynor’s rulings “contained detailed criticism of the government’s response to the Covid-19 pandemic” and led to a fear he “would be not be able to consider impartially any application to extend custody time limits for the duration of the Covid-19 emergency.”
She added: “It is submitted that the court is entitled to find that the measures taken by HMCTS first to cope with the initial emergency and then to restart jury trials within 2m guidelines and to plan towards 1m+ to extend capacity were proportionate.”
Mrs Justice Whipple refused to step down from the case and she agreed to extend custody time limits for the defendant until January, saying the reasons for her decisions would be made public later this week.
Ms Forshaw has indicated she plans to appeal today’s rulings.