Coronavirus and Custody Time Limits – Some Good News

Custody time limits dictate the length of time that someone can be held in custody before the start of the trial. These rules are designed to ensure all persons are kept in custody for indefinite periods awaiting trial and impose obligations on the State to ensure courts function correctly.

Custody time limits can, however, be extended if:

(a) There is a good and sufficient cause, and
(b) The prosecution has acted with all due diligence and expedition.

There are some other exceptions, but when considering trial delays during the Coronavirus pandemic, these are the ones that a court will focus on.

It seems to have been accepted that the current pandemic is a good and sufficient cause to extend a custody time limit, and that does appear to be, at the least, a superficially attractive argument.

When the cause of trial delays is examined in more detail and given that there were massive case delays before the pandemic, the justification for keeping people in custody for long periods pending trial evaporates.

In a recent judgment, HHJ Raynor sitting at Woolwich Crown Court rejected a prosecution application to extend custody time limits and freed a defendant on bail.

Judge Raynor’s reasoning for this was expressed in these terms:

a. In the current situation, the lack of available courtrooms to hear jury trials for defendants in custody is neither a good nor a sufficient cause to extend the custody time limit in this case;

b. 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 limit in this case;

c. The delays in bringing cases to trial which are being experienced by the courts will not be alleviated by the current steps that are being taken by Her Majesty’s Court Service;

d. The Protocol was a temporary measure;

e. The Protocol does not override independent judicial discretion and every case must be decided on its own merits. The Protocol contains rules of practice only and the relevant law is unaffected. The judge responsible for deciding each application will apply the law. In making this ruling I am applying the law.

f. Paragraph 15 of the Protocol (which is a rule of practice only) has been used to extend custody time limits, by reference (a) government health advice AND (b) directions from The Lord Chief Justice. The government health advice has changed since the Protocol was first published and I am not satisfied that the current government health advice continues to amount to a good and sufficient reason to extend a custody time limit.

g. Members of the public can (or soon will be able to) go into a restaurant to eat and use a gym. Jurors have been undertaking their duties in the existing criminal trials that are taking place. If sufficient investment had been made to create dozens (not ten) additional courts to undertake criminal trials then the situation regarding CTL extensions might be different. But it is not. The reality is that many defendants in custody will not be tried until well into 2021.

What does this mean for defendants remanded in custody awaiting trial?

By any measure, this is a judgment that is highly critical of the government’s response to the pandemic so far as it impacts the criminal justice system.

The judgment is not binding on other judge’s so there is no guarantee that others will take the same stance as Judge Raynor, but we expect that many will.

It is also likely that if the judgment is replicated in other cases, there will be an appeal to the High Court. But for now, this case represents a glimpse of hope for those remanded in custody with no hope of a trial date any time soon.

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