Due to the Coronavirus pandemic, Crown Court trials are being taken out of the list for April and May, with new trial dates being fixed. Many defendants in custody will therefore be given a new trial date which is outside of their custody time limit.
On 7th April 2020 the “Coronavirus Crisis Protocol for the Effective Handling of Custody Time Limits” was published. The Protocol is signed on behalf of HMCTS and the CPS, and gives some insight into how applications to extend custody time limits will be dealt with.
The test to extend a custody time limit
The legal test for extending a custody time limit remains unchanged and is set out in section 22(3) of the Prosecution of Offences Act 1985:
the court can only extend the custody time limit if it is satisfied that the need for the extension is due to:
- 1. the illness or absence of the accused, a necessary witness, a judge or a magistrate;
- 2. postponement which is occasioned by the ordering by the court of separate trials in case of two or more accused persons, or two or more charges; or
- 3. some other good and sufficient cause,
- 4. AND in respect of any of the foregoing the prosecution has acted with all due diligence and expedition.
In the context of the coronavirus crisis, the relevant considerations are likely to be (3) and (4): “good and sufficient cause” and whether the prosecution has “acted with all due diligence and expedition.”
In cases where the defendant or a witness is unwell, the protocol recognises that it may not be possible for medical evidence to be provided to the court. It does require the prison service to provide a written record of the illness of defendants in custody, if they are too unwell to appear in court.
Is Coronavirus a good and sufficient cause?
Yes. The protocol states:
“The coronavirus pandemic is an exceptional situation and the adjournment of CTL trials as a consequence of government health advice and of directions made by the Lord Chief Justice amounts to good and sufficient cause to extend the custody time limit.”
However, the protocol does state that it “does not override independent judicial discretion and every case must be decided on its own merits.”
In most cases, it is likely that Judges will apply the protocol and will find that the pandemic is a good and sufficient cause to extend the custody time limit.
Due diligence and expedition
Having a good and sufficient cause is not the only determining factor. The prosecution must also show that they have acted with all due diligence and expedition. The standard of proof is the civil standard – on the balance of probabilities.
The Crown will be expected to provide a chronology of the case. If there have been delays, the defence can oppose the extension of the custody time limit by arguing that the crown have not acted with due diligence and expedition.
The Court of Appeal in Manchester Crown Court ex p McDonald described this test:
“To satisfy the court that this condition is met the prosecution need not show that every stage of preparation of the case has been accomplished as quickly and efficiently as humanly possible. That would be an impossible standard to meet, particularly when the court which reviews the history of the case enjoys the immeasurable benefit of hindsight. Nor should the history be approached on the unreal assumption that all involved on the prosecution side have been able to give the case in question their undivided attention. What the court must require is such diligence and expedition as would be shown by a competent prosecutor conscious of his duty to bring the case to trial as quickly as reasonably and fairly possible”
Bail
If the custody time limit is extended, bail applications can still be made in the usual way. The usual rules will apply.
Practicalities
In recent weeks, defendants have been frequently appearing in court via video link. Some courts are providing short conferences with defence counsel prior to hearings, either using video link or phone. However the protocol envisages some CTL extension applications being heard without defendants being present. This may well apply if the defendant is unwell.
The protocol states:
“In the event that a defendant is unable to attend either in person or by live link the hearing at which the application to extend custody time limits is to be made the Court will consider:
• Whether the defendant has waived their right to attend
• Whether exercising its discretion to hear the application in the absence of the accused in accordance with Rule 14.2(1)(c) Criminal Procedure Rules (CrimPR) if it would be just to do so in the circumstances.
When a defendant is not present either in person or over a live link then they must have been given the opportunity to make representations under CrimPR 14.2(1)(a)(ii).”
If the defence have indicated the application is unopposed and the defendant has been given the opportunity to make representations, the Protocol states that courts should deal with the application in the absence of the parties.
If it is opposed, then the Protocol states a court should hear the application using the following methods, in order of preference:
• Audio link, advocates only
• Video link, advocates only
• Defendant by video link, advocates by audio/video link
• In private but recorded, if it is not possible to broadcast into a court building
If a bail application is also being made, video links must be used for the defendant and advocates.
Claire Brocklebank
April 2020
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