The Lord Chief Justice has issued guidance to Resident Judges as to how they may wish to approach the Bar’s ‘No Returns’ policy. We reproduce it below as it may well be of assistance to counsel.
The importance of complying with the protocol is reiterated in paragraph 3 and all counsel should be vigilant in ensuring they have complied with it. We would also direct everyones attention to paragraph 6 and in particular, that “it would be unusual to proceed to trial without representation or the defence”.
It will be interesting to see whether Mr Grayling spins the line that this policy is having no effect, just as he did with the days of action, in light of the published guidance and the impact the policy is having on the management of the courts.
Returns: Guidance to Resident Judges on approach
1. With effect from Monday 10th March, members of the criminal Bar are declining to accept returns of defence work. This guidance is intended to assist judges in managing the consequences.
2. You may wish to make local arrangements appropriate to your court centre to encourage early notification from Chambers in the event that the instructed advocate becomes unavailable.
3. If you are informed that an instructed advocate will no longer be available, then you should require that they explain in writing why they are unable to attend and cannot meet their commitment.
4. If the case could be moved to accommodate the advocate, consider whether, in the interests of justice, including not only the defendant but also the prosecution, victim, alleged victim and witnesses, the case can be moved.
5. If it cannot, the solicitor should then be required to explore the possibility of alternative representation and, if none is available, must confirm the position to the court in advance and in writing.
6. If no alternative advocate is available, then the judge must reach a decision in the interests of justice, bearing in mind that it would be unusual to proceed to trial without representation for the defence and that if a representation order has been granted and not discharged then the defendant is entitled to representation.
7. If as a direct result of the absence of counsel it appears that a custody time limit will be reached:
a) Resident Judges are encouraged to direct such applications to be heard by a Presiding Judge who is on Circuit at the time;
b) the prosecution must make an application;
c) that application must be supported by evidence covering all of the relevant statutory criteria;
d) the application and the evidence should be heard in open court, in the presence of the defendant (either in court or via video link);
e) the judge must apply the statutory test in the light of the authorities, some of which are summarised in McAuley, R (on the application of) v Crown Prosecution Service  EWHC 680 (Admin) at paragraphs 25 to 29;
f) the judge must give a full reasoned judgment.
8. A copy of this guidance is being sent to the CBA, Bar Council, Law Society and Circuit Leaders for information.