Custody time limits and why they matter

Custody time limits and why they matter

David Hardstaff and Bethan Cowlam consider the recent increase to custody time limits and the practical implications in the context of significant court backlogs.

In a highly unusual move, HHJ Raynor, a Crown Court judge, has lodged a complaint against the resident judge of Woolwich Crown Court, suggesting political interference in the handling of cases involving extended custody time limits.

On 6 September 2020, the Government announced that custody time limits would be extended to allow for defendants awaiting trial to be remanded in custody for up to eight months. Unsurprisingly, its press release focuses on the pre-trial custody of “violent offenders and those accused of sexual crimes” in order to protect victims of crime. However, note the more cautious reference to keeping “dangerous suspects off our streets”. Here lies the problem: suspects awaiting trial may now face a total of 238 days in custody prior to any sort of determination as to their guilt. Surely there must be sufficient evidence to convict them, otherwise they wouldn’t have been charged and detained awaiting trial? Well, no. Not necessarily.

For a suspect to be charged and prosecuted, a two-stage test is applied. The ‘Full Code Test’ is set out in the Code for Crown Prosecutors and is made up of two limbs; the evidential stage, and the public interest stage, both of which must be satisfied before a prosecution can take place. For a case to pass the evidential stage, a prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against a suspect on each charge. This is a very different test to that applied by a tribunal when determining whether a defendant is actually guilty of an offence: A jury, magistrates, or district judge must be sure that a defendant is guilty before they can convict.

To state the obvious, there is a significant difference between a ‘realistic prospect of conviction’ and being ‘sure’ of a defendant’s guilt; the difference between these tests is the primary reason for defendants being found not guilty. Any analysis of our treatment of defendants awaiting trial must recognise that a significant proportion of defendants will never be convicted of an offence. According to CPS data, around 38% of defendants were acquitted after trial last year. It is particularly for this reason that the depravation of an individual’s liberty prior to trial is such a serious matter.

The power to detain an individual while he or she awaits trial should be used sparingly. The presumption in favour of bail, enshrined in statute by the Bail Act 1976, is an important safeguard. There are of course some exceptions, for example in cases involving allegations of murder, and in cases involving repeated specified offences. Otherwise, in cases involving indictable only and imprisonable either way offences, the court must be satisfied that one of the statutory grounds for refusing bail applies, namely that there are substantial grounds for believing that if released on bail, the defendant would, (a) fail to surrender to custody, or, (b) commit an offence while on bail, or, (c) interfere with witnesses or obstruct the course of justice. As cited in the recent judicial spat, a lack of available courts is not a good enough reason to keep someone in prison.

For defendants who are refused bail, the custody time limit is their next important safeguard to prevent excessive pre-trial detention, the extension of which gives rise to a number of practical concerns. What happens when a defendant who is refused bail faces longer in prison awaiting trial than the sentence he or she might expect to receive following conviction, either after losing at trial or after pleading guilty?

Eight months, the new custody time limit, is the equivalent of a 16-month prison sentence (most custodial sentences see the defendant serve half their sentence in prison and half in the community). Consequently, and in view of the gargantuan backlog of cases facing the criminal courts (trials are presently being listed well into 2022), many defendants will serve the equivalent of a full custodial sentence for a sexual assault or a serious assault occasioning actual bodily harm, before they reach the point at which a jury hears their case. This was the case for Tesfa Young-Williams, one of the defendants who triggered HHJ Raynor’s complaint, who had been in custody for 321 days since his arrest last October awaiting trial for drug offences.

Efforts throughout the Coronavirus pandemic have been aimed at reducing the prison population; since March, the number of inmates in England and Wales has decreased by 4,000. This seemed to be a vital part of the Ministry of Justice’s plan to manage the spread of the virus, yet the rate of reduction will undoubtedly slow down if defendants are remanded in custody for longer pre-trial. Given the dire state of our prisons and the additional risk posed by Coronavirus, it would be unsurprising to learn that defendants who had before maintained their innocence may now be more inclined to plead guilty just to ‘get it over with’ and to go home. The idea that the state’s inability to ensure a trial within a reasonable period of time might lead to the innocent pleading guilty for reasons of ‘convenience’, is an afront to justice.

Equally concerning is the lack of scrutiny given in parliament to the extension of the custody time limit; not least because there is a strong case for placing the current backlog squarely at the door of the current Government. That this combination has led to increasing judicial activism (or at least serious judicial discontent) is unsurprising and a sign of yet more tension between lawyers and the Government to come.

David Hardstaff is an associate solicitor at BCL specialising in criminal and regulatory law. He advises individuals and companies in relation to controlled drug licensing and AML/Proceeds of Crime considerations in the context of the domestic and international cannabis market. He has particular experience in advising and representing individuals accused of sexual offences, drugs offences and offences involving violence. He is an experienced police station representative and advocate and represents clients in a broad range of proceedings at the Magistrates’ Court, Crown Court and Court of Appeal.

Bethan Cowlam is a trainee solicitor, currently specialising in serious and general crime. Her prior experience includes regulatory investigations and financial crime.