The Department of Public Prosecutions recently appealed decisions made by crown court judges where they had refused to extend the custody time limits (CTL) owing to the fact that representation could not secured for defendants (R v (1) Dursley (2) Smedley (3) Mayall [2022] EWHC 2415 (Admin)). 

The court ruled that a lack of representation is capable of amounting to a good and sufficient cause. That meant that judges, subject to the prosecution being able to show that they had acted with all due diligence and expedition, could extend the custody time limits because the accused did not have representation by a barrister. The court added that if the bar action was to continue, that by the last week in November, that it was likely that the situation would be classed as chronic and routine. If that status was achieved, it would mean that those whose custody time limits were to expire around that time would be more likely to be released if representation could not be secured. 

The Criminal Bar Association have been involved with ongoing negotiations with the government in relation to their fees. A ballot was opened last week for barristers to vote on whether to accept an offer by the government and the results have been declared this morning. 

The results of that ballot show that 57% of the bar have voted to accept the deal offered by the government. This means that as from tomorrow, barristers will return to work as normal. That is good news for those defendants who have been before the Crown Courts and who could not have representation at court by a barrister. It does however mean that the lack of representation is unlikely to be a feature in applications to extend CTL going forward. 

The same statutory grounds remain in relation to CTL and It is important to remember that the burden is on the prosecution to apply for the continued detention of an accused in custody outside the prescribed time limits. Those statutory grounds are: -

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.

Applications to extend the CTL need to be considered carefully on a case-by-case basis and advice should be sought from your legal advisors as to whether the prosecution are likely to satisfy the burden for the accused continued detention.