Custody Time Limits And Why They Matter

• Published date: 18 September 2020
• Subject Matter: Criminal Law, Coronavirus (COVID-19), Crime, Government Measures
• Law Firm: BCL Solicitors LLP
• Author: Mr David Hardstaff and Bethan Cowlam

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...