Increase of Custody Time Limits

What is a Custody Time Limit (CTL)?

A custody time limit is the length of time that a defendant can be remanded in custody awaiting trial. It is a safeguard against those awaiting trial being held in custody for excessive periods of time pre-trial. We’ve all heard the American news stories and seen the Netflix shows of defendants facing years awaiting trial but in England our legislation states a person can be held for 56 days awaiting trial in the magistrates court and, up until this September, 182 days (six months) for a person sent for trial to the crown court. 

An application could be made by the prosecution to extend that time limit and the court can extend if it is satisfied that the need for an extensions is due to either;

1. the illness or absence of the accused, a necessary witness, a judge or a magistrate;
2. postponement which is occasioned by the ordering by the court of separate trials in case of two or more accused persons, or two or more charges; or
3. some other good and sufficient cause,
4. AND in respect of any of the foregoing the prosecution has acted with all due diligence and expedition.

The effect of COVID-19

The COVID-19 pandemic has had a huge impact on the criminal justice system. An already struggling system, with a backlog of 40,000 cases pre pandemic, saw trials being halted in March 2020. Custody defendants, who at that point may have been waiting six months for their trial to take place (and likely many months before waiting to find out if they were to be charged with an offence), found themselves facing a lengthy delay for a new trial date. Applications were made by the prosecution to extend the custody time limits in such cases.

Initially the Coronavirus Crisis Protocol for the effective handling of custody time limit cases was introduced in April 2020 in response. It sought to streamline the process for applications to extend custody time limits for those defendants whose trials could not go ahead. It stated “The coronavirus pandemic is an exceptional situation and the adjournment of CTL trials as a consequence of government health advice and of directions made by the Lord Chief Justice amounts to good and sufficient cause to extend the custody time limit.”

In a rare criticism of the government in July,  HHJ Raynor at Woolwich Crown Court releasing a defendant to bail, said: “Many defendants in custody will not be tried until well into 2021.” Raynor boldly said “the lack of available courtrooms to hear jury trials for defendants in custody is neither good nor a sufficient cause to extend custody time limits in this case” and “the lack of money provided by Parliament to provide sufficient space for trials to be conducted does not amount to a good nor a sufficient cause to extend the custody time limits in this case”  

Criminal Courts Recovery Plan 

In September 2020 the Ministry of Justice published the Criminal Courts Recovery Plan to address the delays to jury trials that have been caused by the pandemic. It included measures such as an increase in Nightingale Courts, changes to court hours, 1600 new court staff, an increased use of video technology for hearings and changes to the physical set up of court rooms such as the introduction of glass screens which some would argue has been slow to implement. 

At the same time temporary legislation was announced which increases the length of time a defendant can be held in custody awaiting his or her trial from six months to eight months with the introduction of the Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendments) Regulations 2020. These regulations came into force from the 28^th September 2020. They increase the time a defendant can be remanded in custody prior to their trial from 182 days (six months) to 283 days (eight months) for cases sent to the Crown Court for trial.  These controversial regulations are in force for nine months and cease to have effect from 28^th June 2021. 

Delaying Justice 

The Lord Chancellor Robert Buckland QC MP said “…the measures I have announced today will get the criminal courts system back to where it needs to be – reducing delays and delivering speedier justice for all.” It is questionable how delaying a trial even longer delivers for “speedier justice” for the victims of crime. Victims will now spend even longer awaiting justice and witnesses will be delayed giving their evidence to the court, increasing the mental anguish for all concerned and potentially affecting the quality of the evidence they give. 

With this stockpiling of cases there is also a risk in certain circumstances that defendants are at risk of spending longer in custody awaiting trial than they would receive as a sentence if convicted. In some cases, innocent defendants may be considering the point of awaiting trial when they could enter a guilty plea and serve a sentence in a shorter period of time than they would have received by awaiting trial. This is clearly a dangerous balancing act and could lead to miscarriages of justice.

Article written by Stacey Mabrouk

It is even more important therefore in these current times that you have a proactive criminal defence team who will challenge the prosecution to keep a case under continuing review and to highlight any weaknesses and identify to the CPS where a case may no longer pass the prosecution’s Full Code Test.