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JfKL, Howard League, and Liberty request withdrawal of Covid-19 extension to pre-trial custody time limits

Parliament has enacted the Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 2020 (the “2020 Regulations”) 1 which came into force on 28 September 2020.

The 2020 Regulations extend pre-trial custody time limits in the Crown Court to a maximum of 238 days, with the ultimate intention of easing the backlog of cases in the Crown Court as a result of the Coronavirus pandemic. However, the new limits – which apply to children and adults alike – may serve to unfairly remand innocent individuals in custody. This is particularly worrying for children on remand who are already subjected to restricted prison conditions, and in circumstances where the rate of children on remand as a proportion of all children in custody is at its highest for a decade.

On 16 September 2020, Just for Kids Law together with the Howard League for Penal Reform and Liberty wrote a joint letter to the Secretary of State for Justice and Lord Chancellor, Robert Buckland, stating they have “serious concerns as to the lawfulness” of the regulations, which will extend by two months the maximum length of time that a person can be held in prison on remand. The letter can be found here. The response from the Secretary of State for Justice is here. This was followed by a further joint letter in response renewing the request for the extension to the custody time limits to be withdrawn, and if not minded to do this, to at the very least exclude children.

Details

From 28 September 2020 and ending on 28 June 2021, the 2020 Regulations will amend Regulation 5 (Custody time limits in the Crown Court) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 (the “1987 Regulations”) 2 by increasing the maximum periods of pre-trial custody in cases before the Crown Court as follows:

  1. For either-way offences not dealt with summarily, the period of time before the start of trial and either:
    1. The defendant’s committal for trial; or
    2. when a bill of indictment is preferred against the defendant in accordance with section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (the “1933 Act”) 3,

is increased from 112 days 4 to 168 days 5.

  1. For indictable-only offences, the period of time before the start of trial and when a Magistrates’ Court sends the case to be tried at the Crown Court, is increased from 182 days 6 to 238 days 7 (less any time ordered to spend in custody by the Magistrates’ Court).

The 2020 Regulations do not apply to those individuals who are already in custody and subject to a custody time limit that began before 28 September 2020.

Where an individual is remanded in custody for the first time after 28 September 2020 and before 28 June 2021, the custody time limits set out in the 2020 Regulations will apply to that individual even if the relevant custody time limit expires after 28 June 2021.

On 28 June 2021, custody time limits will revert to the 1987 Regulations, unless further legislation is passed through Parliament.

Commentary

Jury trials have resumed since their suspension during the early stages of the pandemic, and the court system is now grappling with the backlog of cases, which the extended custody time limits seek to resolve. However, there is a competing concern that the extensions might unreasonably and unfairly deprive the liberties of innocent defendants who have been refused bail while awaiting trial.

Not only does prolonged pre-trial detention potentially infringe civil liberties, but it is a very real concern when considered in the context of over-crowded prison conditions at a time when distance is being advised or mandated throughout society. Anxieties are naturally amplified in cases of defendant children, for both the accused and their families.

The Youth Justice Statistics from 2018/2019 show that 66% of children remanded to youth detention did not receive a custodial sentence following trial, and almost half of that 66% were acquitted 8.  Approximately 37% of children in youth detention were being held on remand in June 2020; a percentage that has been on the increase. The same figure across 2019/20 was 29%, and in 2015/16 was 21% 9.

These statistics are all the more worrying in light of Covid-19 and measures taken to prevent transmission of the virus, with children being placed in solitary confinement and other restricted surroundings for prolonged periods. As noted by the Howard League for Penal Reform: “There are no face-to-face visits, virtually no face-to-face education and no therapy10.

The United Nations Convention on the Rights of the Child states that the detention of a child should only ever be used “as a measure of last resort and for the shortest appropriate period of time11. At all times – but particularly during the current pandemic – there must be close scrutiny over decisions taken to remand children in custody at all, and much caution taken over powers to detain children for protracted periods whilst they await trial.

 

  1. Statutory Instrument 2020/953  (back)
  2. Statutory Instrument 1987/299  (back)
  3. An either-way offence is preferred by a bill of indictment under the 1933 Act when the Crown Prosecution Service obtains the consent of a High Court Judge to send the defendant to trial on indictment, where the Magistrates’ Court had decided that the case be dealt with summarily  (back)
  4. Regulation 5(3) of the 1987 Regulations  (back)
  5. Regulation 2(a) of the 2020 Regulations  (back)
  6. Regulation 6B of the 1987 Regulations, as introduced by Statutory Instrument 3284/2000  (back)
  7. Regulation 2(b) of the 2020 Regulations  (back)
  8. Youth Justice Statistics, Youth Justice Board/Ministry of Justice, 30 January 2020, paragraph 6.3, page 36  (back)
  9. Youth Custody Report, HM’s Prison and Probation Service, July 2020  (back)
  10. Ending the detention of unsentenced children during the Covid-19 pandemic, Howard League for Penal Reform and Garden Court Chambers, May 2020  (back)
  11. United Nations Convention on the Rights of the Child, Article 37(b), September 1990  (back)