Image of a custody cell with an open blue door and blue mattress and pillow.

The Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 2020 were laid on 7 September 2020 and came into force on 28 September 2020. They increase the maximum amount of time a defendant can be remanded in custody whilst awaiting their trial in the crown court. This is in recognition of the delays and backlog caused by the Covid-19 pandemic to the listing of trials.

The regulations were laid under the made negative procedure. This means that parliamentary approval was not required before they became law. However, either House may pass a motion to annul the regulations within an objection period and stop the regulations having effect. The objection period will end on 16 October 2020.

The Secondary Legislation Scrutiny Committee (SLSC) raised several concerns about the regulations. These included concerns about the impact that the new regulations could have on prison capacity. The SLSC drew the regulations to the special attention of the House on the grounds that they are “politically or legally important and give rise to issues of public policy likely to be of interest to the House”.

This article provides an overview of the regulations and outlines some of the concerns raised by the SLSC.

What the regulations do

The Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 2020 (the new regulations) amend the Prosecution of Offences (Custody Time Limits) Regulations 1987 (the 1987 Regulations) in relation to custody time limits.

A custody time limit (CTL) is the maximum amount of time a defendant charged with an offence can be remanded in custody before the commencement of their trial. If the trial cannot be started before the CTL expires, the court must release the person on bail unless the prosecution successfully applies to extend it. CTLs, as set out in primary and secondary legislation, require the prosecution to progress cases to trial “diligently and expeditiously”.

The explanatory memorandum accompanying the new regulations states that they would “temporarily extend the amount of time a defendant can be held in custody before their crown court trial is heard and before which time the prosecution must apply to extend it”.

Prior to the new regulations coming into force, the CTLs for trials scheduled to take place in the crown court were as follows:

  • 182 days for either way offences and indictable only offences (this includes serious offences such as burglary and drug trafficking);
  • 112 days for voluntary bills of indictment or where a fresh trial has been ordered by the court of appeal.

The new regulations temporarily increase the above CTLs by 56 days. The limit for all triable either-way and indictable only criminal offences awaiting trial on indictment at the crown court has increased from 182 days to 238 days. Cases where a voluntary bill of indictment is served on a crown court, or a fresh trial has been ordered by the court of appeal, will see the CTL increase from 112 days to 168 days. A voluntary bill is used in limited circumstances following either the direction or with the consent of a high court judge.

The new regulations are not retrospective in application. This means that they will only apply to defendants who are first remanded in custody on or after 28 September 2020 when the regulations came into force. The new regulations will automatically expire after nine months on 28 June 2021, at which point CTLs will revert back to the existing provisions in the 1987 regulations. Where a defendant’s CTL period on remand extends beyond the 28 June 2021 expiry, the extended CTL will continue to apply.

Why have the regulations been introduced?

The Covid-19 pandemic resulted in the suspension of jury trials in England and Wales between 23 March and 18 May 2020, causing a backlog of criminal court cases waiting to be heard. The Government believes that the limitations on trials caused by social distancing measures will mean it is unlikely that courts will achieve the pre-Covid levels of trial hearings for some time. The explanatory memorandum to the new regulations refers to difficulties experienced by courts in hearing jury trials for all defendants within their CTLs. The purpose of the regulations, the Government said, is therefore to:

[…] [recognise] the delays caused to the listing of trials due to the current circumstances and [provide] more certainty for victims and the public in cases where there is a risk that defendants may abscond or commit offences if released back into the community on bail.

At the start of the pandemic, the Coronavirus Crisis Protocol was introduced by Her Majesty’s Courts and Tribunal Service, the Crown Prosecution Service, and the Senior Presiding Judge. This protocol provided a temporary framework during the pandemic for the “efficient and expeditious” handling of cases that had CTLs. It set out the processes to be used in cases where it may not be possible for trials to take place within the CTL. On 15 July 2020, the protocol became the subject of discussion in the high court. Rupert Bowers QC submitted that the protocol “subverted the statutory scheme and fettered the crown court’s discretion”. The high court rejected this contention when giving its ruling.

What parliamentary scrutiny has there been?

The Secondary Legislation Scrutiny Committee (SLSC) reported on the regulations in its report published on 24 September 2020. The SLSC drew them to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.

When considering the impact that the new regulations could have on the capacity within prisons, the SLSC said it seemed “self-evident that extending time on remand must increase the prison population”. The SLSC asked the Government how the increase in prison capacity would be addressed and were “not entirely convinced” by the Government’s following reply:

Her Majesty’s Prison and Probation Service (HMPPS) closely monitor prison population forecasts and they are committed to always having enough prison places to accommodate those remanded in custody by the courts. Currently, CTL extensions are being routinely granted and, under this SI [statutory instrument], it would remain possible to apply for bail. As such, whilst the SI changes the starting point, it does not necessarily lead to a substantial increase in the remand population—a figure that will be affected by many things, including defence behaviour. However, the MOJ and HMPPS will continue to assess any anticipated impacts to effectively manage the number of prison places available.

With reference to the Covid-19 pandemic, the SLSC sought clarity from the Government as to why people on remand were not being allowed to stay in the community on bail “at a time when prisons are supposed to be releasing as many prisoners as possible to reduce Covid-19 infections”. The Ministry of Justice said that decisions on whether to grant a person bail or remand in custody were solely a matter for the courts and judiciary.

The SLSC also questioned the Government on how many individuals on remand and charged with a serious crime had already been released on bail because they had exceeded their 182 days CTL. The Government said that the data on the number of defendants released on bail is not correlated or published. The SLSC, in response, said:

We were surprised to hear that this data is not collected. We question how the trial process and prison population can be managed effectively if there is no clarity about the numbers awaiting trial, their location and the length of time they have been on remand.

In conclusion, the SLSC expressed its understanding for the backlog caused to court hearings as a result of the pandemic, but believed that the new regulations did not solve the problem. It said that extending remand can have:

[…] extremely detrimental effects on the mental health of the individual and on the welfare of their families, especially where the prisoner is a parent or has dependants, every effort should be made to reduce it as soon as possible.

The SLSC called for the House of Lords to question the Government about what other measures are being taken to address the backlog of trials.

In the House of Commons on 22 September 2020, Kerry McCarthy (Labour MP for Bristol East), raised concerns about the impact of the extended CTLs on children who are on remand. Ms McCarthy asked the Government what steps could be taken to ensure potentially innocent juveniles would receive a timely hearing. Chris Philp, the Parliamentary Under-Secretary for the Home Office, said that 250 crown court jury trial rooms will be operating by the end of October “which will enable us to really get through these cases as quickly as we possibly can.”

The House of Commons Justice Committee also raised concerns about the new regulations in a letter dated 16 September 2020 to the Lord Chancellor. The Justice Committee asked for further information on alternative measures that were considered during the development of the regulations. It also raised concerns about the limited opportunity given for parliamentary scrutiny of the new regulations.

At the time of writing, no motions to annul the regulations have been tabled in either House.

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Image by West Midlands Police on Wikimedia.