What are custody time limits?

The law imposes time limits on the length of time an accused can be kept in custody before their trial starts. This is to ensure that they are not deprived of their liberty for longer than is necessary. These time periods vary depending on the nature of the case and they are known as the custody time limit (CTL).

Extension of custody time limits 

The prosecution can apply for the continued detention of an accused in custody outside the prescribed time limits.

Section 22(3) Prosecution of Offences Act 1985 states that the court can only extend the CTL if it is satisfied that the need for the extension is due to:

a. the illness or absence of the accused, a necessary witness, a judge or a magistrate;

b. 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

c. some other good and sufficient cause,

d. AND in respect of any of the foregoing the prosecution has acted with all due diligence and expedition.

The burden is on the prosecution to satisfy the court, on the balance of probabilities that both conditions of the Act are met. If the conditions are not met, then the accused should be released on bail upon the expiry of the CTL.

Recent developments

During the pandemic, the Custody Time Limits (Coronavirus) Amendment Regulations Act came into force. This law enabled an extension of the Custody time limits “if the extension of a CTL results from a shortage of suitable court tooms caused by the Covid emergency…”. This meant that CTL applications were being granted routinely during the pandemic due to a shortage of court rooms.

That Act came to an end on 28th June 2021. However, since that time, the issues with listing trials within the CTL have continued. The backlog of cases awaiting trials has significantly increased because of industrial action being taken by the Bar Council (the regulating body for criminal barristers).

There have been several cases before the courts recently where CTL applications have been made because of listing issues. Some recent developments in this area are considered below:

Lack of court time

Mr Lee Marten recently had his custody time limits extended before the Lincoln Crown Court due to a of “a lack of court availability” to hear his trial within the prescribed limits.

Mr Marten’s legal team made an application to the Administrative Court to judicially review that decision.

The prosecution sought to persuade the court that the CTL should be extended as the issues with listing the case was a part on the continuing impact of the pandemic. The court rejected this and concluded, “there is no proper basis that is disclosed upon which the prosecution could show that the need for an extension was due to good and sufficient reason. We grant the application for judicial review and quash the decision. Pursuant to CPR 54.19 (2)(a) we remit the matter to the Crown Court in Lincoln to reach a decision in accordance with the judgment of the court and to determine the conditions of the claimant’s bail as deemed appropriate”. 

The Lords hearing this case stressed that it was for the prosecution to satisfy the court for the need to extend the CTL and that both parties should be adequately informed in advance of their submissions to assist the court in the necessary rigorous scrutiny of good and sufficient reason.

Action by the Criminal Bar Association

Criminal barristers have, for a number of months now, taken industrial action in relation to legally aided work under the AFGS scheme. The action taken by them has included not covering other barristers work and refusing to accept instructions in new cases. As stated above, this action has had a significant impact on the court’s ability to progress cases and to bring cases to trial within the custody time limits. 

There have been recent cases before the local Crown Court centres where judges have refused to extend the CTL as a consequence of the action being taken by the barristers. As such, accused persons are to be released on bail. The government are being blamed for the systematic failings in the system through its chronic underfunding. These cases are being reported widely within the media, an example of which can be found within the Law Gazette.

Discussion

What is classed as good and sufficient cause will always be fact specific to each individual case. What is important is to ensure that any application to extend a CTL is considered carefully by the appointed legal team, the prosecution is challenged where applicable, and the information provided by them is robustly tested to ensure that the judge can satisfy themselves that there is a good and sufficient cause(s) to allow the continued detention of an accused.

It is anticipated that the prosecution may seek to appeal decisions where the CTL is not extended as a result of the action by the criminal bar and further updates will be provided in due course in relation to the developments in this area.