The Covid-19 Pandemic and Custody Time Limits

1st April 2020 Business Crime

There is no doubt that the Covid-19 pandemic has affected the lives of everybody in the UK and indeed across the globe. We shall explore the implications for those awaiting criminal trials in the UK in the midst of the crisis, what this means for them and what we know so far.

On 23rd March 2020 the Lord Chief Justice announced that ‘all new jury trials in England and Wales would be halted until they can be conducted safely.’ This announcement was somewhat inevitable following the Prime Minister’s broadcast on the evening of Monday 23rd March that Britain was effectively on ‘lockdown’. Following further clarification, it was confirmed that prisons in England and Wales would be closed to all visitors. Arguably, those within the criminal justice system most affected by the recent measures shall be defendants awaiting trial who are remanded in custody who’s length of detention would ordinarily be protected by a Custody Time Limit (“CTL”).  It now appears to be the case that their criminal trial will be adjourned indefinitely and serious questions arise as to whether defendants in this position shall be remanded in custody for the foreseeable, with no visits from family or friends and restricted abilities to contact their legal team.

The current uncertain climate raises serious questions around the safeguarding of defendants who face being held in custody pre-trial for an excessive period, without any reassurance as to whether or when their case will be progressed and heard by the court.  

What was the post Covid-19 position?

The amount of time that a defendant can be held in custody, between being charged with an offence and being brought to court for a criminal trial (the Custody Time Limit), begins in all cases (whether heard in the Magistrates’ or Crown Court) the day after the defendant’s very first court appearance.  

In less serious cases, to be heard in the Magistrates’ Court (Summary Offences), the time limit is 56 days. For any cases that can be heard in either the Magistrates’ Court or the Crown Court (either way offences), the applicable CTL is also 56 days. If a case progresses to the Crown Court, the CTL increases significantly to 182 days. It is however worth noting that CTLs shall vary in certain circumstances, for example where a defendant is granted bail and later fails to surrender so is remanded, or where charges are amended or added in the course of proceedings.

A CTL will expire at midnight on the relevant date. If the CTL expires without a defendant having been tried in the Magistrates’ or Crown Court the prosecution will have to apply to extend the CTL.  The power to extend a custody time limited is set out under section 22(3) of the Prosecution of Offences Act 1985. The court will grant an extension if there is deemed to be ‘good and sufficient cause’ to extend an un-convicted defendant’s pre-trial detention.  The duty to establish this falls on the prosecution. Importantly, there is no definition of what will class as ‘good and sufficient cause’; it is for the court to determine on the facts and context of each case.

If the application is rejected by the court, the defendant has an immediate right to bail under the Bail Act 1976 and will await trial whilst on bail (most likely subject to conditions).

CTLs in the Covid-19 climate

For reasons set out above and not least because Her Majesty’s Prisons have been described as ‘ripe’ for coronavirus outbreaks, there have been urgent questions raised as to how defendants awaiting trial will be dealt with by the courts.

It is worth noting in the first instance that Rule 14.2(1) of the Criminal Procedure Rules (“the Rules”) affords a Judge the discretion to hear applications to extend the CTL in the absence of defendants (previously anticipated in circumstances of adverse weather or a defendant refusing to attend). It appears that this is likely to be a rule heavily relied upon in the current Covid-19 pandemic.

The first case brought before the Central Criminal Court provides an insight into how CTL cases in the Covid-19 era will be dealt with. The first ruling in the case of R v Harewood and others involved a CTL due to expire on 23rd March 2020 (the date that ‘lockdown’ was enacted by Boris Johnson). It was apparent that due to the Covid-19 pandemic, trial would not begin by or on that date. In the circumstances, the prosecution correctly applied to extend the CTL in respect of each defendant. In the case of Harewood the defendants were charged with murder and aggravated burglary.

In what would have been the lead up to the trial of Harewood and others, a public message issued by the Lord Chief Justice on 17th March stated that ‘no new trial should start in the Crown Court unless it is expected to last for three days or less, all other cases will be adjourned.’ It therefore followed that the trial listing of Harewood would be lost and there was little certainty as to when trial would be re-listed in the unprecedented circumstances.

In considering the issue of the CTL in the case and the prosecution’s application to extend the same, the court was required to consider whether there was ‘good and sufficient cause’ for the extension and, whether the prosecution had acted with all due diligence and expedition. The prosecution argued that the statement of the Lord Chief Justice in itself amounted to a ‘good and sufficient cause’ for the extension and further that the second criteria had been met. It was argued on behalf of the defendants that the court should exercise its discretion against a CTL extension in the novel circumstances, albeit there was no fault on behalf of the prosecution. In particular, it was highlighted by the defence that the pandemic meant that there was no clear assessment of when a new trial date might be secured. Counsel for the defendant submitted that the Rules and Legislation previously governing CTLs were not designed to cover the current situation.

In the case of Harewood it was ultimately held that the unforeseen circumstances, whereby the court could not provide a jury for the trial, amounted to a good and sufficient cause to extend the time CTL. The unique situation was however acknowledged and the fact that the defendants’ interests and liberty must be carefully balanced with those of the public. Interestingly, the judgement of the Central Criminal Court indicates that it may be the case that the balancing of interests shifts depending upon the length of the Covid-19  pandemic and, in turn, the length of the pre-trial detention.

Impact upon bail applications

Evan Wright, partner within JMW’s Business Crime and Regulatory team, commenting upon the recent decision in Harewood notes that “The case of Harewood referred briefly to applications for bail; indirectly observing that the current situation could, in some cases, amount to a ‘change of circumstances’ permitting a further application. My view is that defendants in custody awaiting trial should not simply wait for the application to extend the custody time limit. They should seek advice on whether they might sensibly apply for bail in advance of the CTL application. I say this for two reasons. Firstly, the defendant might be in a high risk category so far as Covid-19 is concerned and time could be of the essence. Secondly, the Ministry of Justice in Northern Ireland recently announced an intention to apply Rule 27 (Rule 9 of the Prison Rules 1999 in England and Wales) to facilitate the early release of prisoners because of the Coronavirus Pandemic. Similarly, in the UK, pressure is mounting from the Prison Service Unions, Amnesty International and others to see this measure rolled out more comprehensively in England and Wales. Scotland is following the lead taken in Northern Ireland. Bail applications should refer to these policy decisions and the related conditions of temporary release. These are unprecedented events and they call for a novel and constructive approach to whether prisoners in suitable categories should really be in custody. Secondly, a failure to seek this advice and merely rely upon opposing an application for extension of the CTL may be met by opposition from a prosecutor who says “if this defendant had been committed to the need for release, he or she would have argued a change in circumstances by now; and he or she hasn’t”.

It is clear that the current coronavirus pandemic calls for careful consideration of both CTLs and in addition, whether a new bail application on behalf of defendants in custody ought to be made, in light of the apparent ‘change in circumstances’.

Summary

Whilst the above case of Harewood and others was determined in favour of extending the CTL, the court’s assertions that ‘competing interests in any particular case might shift over time’ arguably dictates that each CTL case brought before the court in the Covid-19 climate will be decided on a case by cases basis, having in mind the competing interests of the public and defendants. It also appears that the interpretation of prevailing Legislation and Rules is likely to vary not only on a case-by-case basis, but depending upon the pandemic’s timeline. Given that at present we do not know what circumstances will pertain, this will undoubtedly continue to be an uncertain time for defendants with the Criminal Justice System.

JMW Solicitor’s Business Crime and Regulatory Partners and Solicitors have extensive experience and knowledge in advising upon serious allegations involving defendants remanded in custody.  For further information about the comprehensive service our lawyers can offer if you are concerned about potential or ongoing proceedings involving Custody Time Limits, bail applications or otherwise. We are able to take on cases from anywhere across the UK and abroad. The co-authors of this blog, Evan Wright, partner and Catherine O’Rourke, solicitor within the department can be contacted on 0845 872 6666 evan.wright@jmw.co.uk or catherine.orourke@jmw.co.uk.

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Catherine O'Rourke is a Solicitor located in Manchester in our Business Crime & Regulation department

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Evan Wright is a Partner located in Manchester in our Business Crime & Regulation department

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