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Custody time limit extension criticised by legal commentators

Posted on: September 8, 2020 by Claire Meadows

The announcement by the Ministry of Justice (MOJ) that the length of time defendants can be held in custody before trial will be extended has been criticised by legal professionals and journalists.  

Announcing the extension on Sunday 6 September as part of a Criminal Courts Recovery Plan, the MOJ said that the temporary legislation would extend the period of time that accused persons could be held before a trial – known as the Custody Time Limit (CTL) – from 182 days to 238 days. The law change will come into effect from 28 September 2020 and will remain in place for nine months.

The MOJ said that the measures would go some way to addressing delays to jury trials that have been caused by the Covid-19 pandemic despite some legal commentators and journalists claiming that an extensive criminal court backlog existed in advance of the ongoing Covid-19 pandemic. 

The Criminal Courts Recovery Plan also outlined new measures including the imminent opening of an additional 8 ad-hoc Nightingale Courts to hear additional cases, the employment of 1,600 court staff to support recovery measures and an increase in video technology to allow more cases to be heard remotely. A restated commitment to the controversial Covid court operating hours was also announced.  

The decision to extend custody time limits has been criticised by legal commentators and journalists.

Tristan Kirk, Courts Correspondent at the Evening Standard said that extending the limits would result in more people pleading guilty to avoid lengthy waits ahead of trial.

He said: “It won’t be said out loud in court much but extending custody time limits will make more people plead guilty. Even if they didn’t do it.

“The threat of a year or more in custody awaiting trial for an offence where it’ll maybe be a 6-month sentence makes it make sense.

“The government makes a point of saying defendants being held longer in custody “include violent offenders and those accused of sexual crimes”. It could also include fraud defendants without a UK address, environmental campaigners and vulnerable people suspected of drug offences.”

The decision to extend lawful limits on custody was announced by Justice Secretary Robert Buckland QC as a “necessary step” to protect the public.

He said: “This temporary extension to custody time limits will keep victims and the public safe, and we should not apologise for making that our priority.

“At the same time, the measures I have announced today will get the criminal courts system back to where it needs to be – reducing delays and delivering speedier justice for all.”

Criticism of the extension was echoed by Joanna Hardy, a Barrister at Red Lion Chambers who echoed Kirk’s comments that the decision to extend CTLs could see innocent people faced with custody stays ahead of trial that would outweigh the length of any sentence down the line.    

She said: “The real story is not yet being seen. The real story are those people pleading guilty to things they didn’t do because waiting for trial will mean spending longer in custody than their sentence would ever be.”

Catherine Baksi, a barrister and freelance journalist said that delays in criminal court hearings were entirely of the government’s making and pre-dated coronavirus.

While the  government said that the changes will “keep the public safe while courts recover from the pandemic”, Baksi said, the opposite was likely to be true with defendants and victims now facing additional lengthy delays ahead of trials starting.

She said: “The government says the move “will protect victims”. Complainants in criminal cases already wait months and years for trials. Keeping defendants in prison for even longer before trial will do nothing to protect those who are victims, who need cases to be dealt with much sooner.

“It will not keep the public safe if the person detained is innocent, and the actual offender is still at large.”

Calling for additional resources to be focused on facilitating the re-opening of more court rooms, Baksi said that while the Covid-19 pandemic had exacerbated an existing problem, an extensive backlog existed in advance of the ongoing health emergency.

She said: “The backlog hasn’t been caused by covid – but that [has] made it worse. [The] route cause is [a] desire to save money and cut spend on criminal justice.”

James Mulholland, Chair of The Criminal Bar Association also criticised the extension and warned against the measures in an article published in The Times.

While the temporary measures had been introduced in an effort to keep victims and the public safe, the Ministry of Justice said, Mulholland warned that the provisions would ultimately be to the detriment of those that are later found to be innocent.  

He said: “The answer to the justice crisis is not to extend the period of pre-trial detention for all in custody arbitrarily by a third where you penalise the innocent as well as the guilty.

“To do so invites delay rather than expedition, increases the numbers in prison and places far greater pressures upon those who work there. The extra millions this will cost should be invested in getting other trial centres up and running.”

Amanda Pinto QC, chair of the Bar Council also called on the Ministry Justice to increase investment in the criminal justice system through the opening of additional courts allowing more hearings to take place.

She said: “We understand the current issue about ensuring that potentially dangerous criminals are not released because their trial has been very delayed due to the existing backlog of trials exacerbated by Covid 19.

“However we are very concerned that this 25% increase in the lawful detention of a potentially innocent person because there aren’t enough courts available to hear their trial does not become a license to push off cases for longer than absolutely necessary. The government must increase sustained investment in the criminal justice system to add more court rooms urgently, especially those capable of safely hearing cases with many defendants.”

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