Custody time limits & Covid19

Whenever a person is remanded in custody in criminal proceedings, a time limit is set within which the trial must be concluded. The Covid lockdown meant that trials were temporarily suspended leading to issues with custody time limits, if a trial cannot take place within the specified timeframe an application can be made for the time limit to be extended.

Two claims for judicial review were made which raised issues about the correct approach to applications to extend custody time limits. In the case of Young-Williams, the Director of Public Prosecutions sought permission to apply for judicial review of a decision refusing to extend a CTL. In Lucima, permission was sought to apply for judicial review of a decision to extend a CTL.

Young-Williams was charged with possession with intent to supply heroin and cannabis, new charges of supplying drugs were laid and joined with the original charges. His time limit was extended on two occasions, with a finding that the difficulty of holding a trial during the pandemic amounted to a good and sufficient cause of the need for an extension. The third application was refused; it was stated that there was neither a good nor a sufficient cause to extend the limit, and that the prosecution had not acted with due diligence and expedition.

Lucima was charged with murder and did not contest an extension on two occasions. The murder charge was then abandoned, and he was proceeded against for perverting the course of justice. His trial was to be dealt with after the murder trial, and a further extension was granted.

Why do we have custody time limits?

The time limits apply to ensure that the periods for which unconvicted defendants are held in custody awaiting trial are as short as reasonably and practically possible. The prosecution are obliged to prepare cases for trial with all due diligence and expedition, and the court has the power and duty to control any extension.

When can they be extended?

The law covering the extension of time limits states the court can only extend if it is satisfied that the need to extend is due to:

the illness or absence of the accused, a necessary witness, a judge or a magistrate;
a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more accused or two or more offences; or
some other good and sufficient cause; and

that the prosecution has acted with all due diligence and expedition.

What is good and sufficient cause?

There is almost an infinite variety of matters which may be capable of amounting to a good and sufficient cause, so there is no real test in respect of this. It is for the court to decide on the particular facts and circumstances of the case in question. Although the pandemic raised issues never previously encountered, the availability of resources has been considered by the courts before.

The availability of a suitable judge or courtroom can amount to good and sufficient cause. However, there is still a need to avoid subverting the statutory purpose of speedy trials for those in custody. The court recognised that resources are not unlimited, and the available resources have to be taken into account along with the requirements of other cases awaiting trial. It was further said that it could not be ignored that occasions will occur when the pressures on the court will be more intense. In such a situation, the court and parties must strive to overcome any difficulties, and if they do not, it may debar the court from extending custody time limits.

What about the effect of Covid?

In these particular cases, in applying for judicial review, the situation was different.

The pandemic was unprecedented and said to be entirely different from the localised problems considered in earlier cases.

The court concluded that it was a good cause if the need for an extension arose from a shortage of suitable court rooms caused by the Covid emergency.

However, a good cause may not be a sufficient cause, and both are required.

Whether there is sufficient cause will depend on an examination of the individual facts of the case and the defendant. It should be explored whether a trial can be brought on elsewhere, or if another case could be vacated.

If practical arrangements cannot be made, it does not follow that it will be appropriate to extend the time limit in every case. In some cases, consideration should be given to releasing the defendant on bail, in doing so the court should consider the following factors:

the likely length of the delay;
whether there have been previous extensions;
the age and antecedents of the defendant;
the likely sentence if convicted, taking account of the time already spent in custody;
the reasons why bail was refused; and
any particular vulnerabilities of the defendant which make remand in custody particularly difficult.

The burden is on the prosecution to satisfy the statutory criteria for granting an extension; parties will be expected to be aware of the steps taken by HMCTS and the courts in respect of the pandemic. The listing position at the concerned court should be considered along with any inquiries made to see if an earlier slot is available elsewhere. Finally, the extension should be for a “comparatively short period”, generally not exceeding three months.

In both of the cases being considered here, the court found that there was good and sufficient cause to grant an extension.