Custody Time Limits & COVID-19 - Are They Gone or Just Self-Excluded?

Trinity Criminal Barrister, Christopher Knox explores the impact of COVID-19 on Custody time limits and HM Courts & Tribunals Service (HMCTS)’s response.

Custody time limits require that a defendant in custody be brought to trial within a prescribed period. This is enshrined in section 22(3) of the Prosecution of Offences Act 1985

The criminal courts have always been strict in adhering to the necessity to ensure trials take place within the prescribed period. It has only been possible to extend those periods if there exists ‘[s]ome other good and sufficient cause’.

In the present crisis, a new edict has emerged, issued by the ‘Senior Presiding Judge, HMCTS and the CPS’. This protocol, which is dated Friday 27 March and signed by the heads of those three bodies, sets out that the custody time limits will be extended (paragraph 15) because:

‘The coronavirus pandemic is an exceptional situation and the adjournment of CTL trials as a consequence of Government health advice and directions made by the LCJ amounts to good and sufficient cause to extend the custody time limit.’

This “temporary framework” applies to all Magistrates’ and Crown Courts. The protocol goes on to say that this matter has been “judicially determined” and that the protocol ‘[…] accurately states the approach of the Court.’

It is accordingly clear that the courts will be required to extend custody time limits, in practical terms, indefinitely until not only the pandemic problem is resolved but the Courts are able to operate in a “normal way” again. Curiously, it has not been necessary either to issue the new number of days as is possible for the Secretary of State under Section 22 of the Prosecution of Offences Act nor for Parliament to make provisions in any Act.

There may be a belief among some remanded in custody that early release is “on the cards” as a consequence of the pandemic, but this protocol makes it clear they are completely wrong. Under these protocols there will be very few remand prisoners who will secure release – only it is assumed if they represent a compelling case for bail on the merits.

In response to the escalating Coronavirus crisis, Christopher and the Criminal barristers in Chambers and supporting staff are committed to providing as much assistance as possible, including urgent advice, online resources and other support, during these challenging and unprecedented times, as such Trinity have a dedicated section of the website focused on COVID-19.

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