Instruments drawn to the special attention of the House
Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 2020 (SI 2020/953)
Date laid: 7 September
Parliamentary procedure: negative
Because there is a large backlog of trials in the Crown Court, these Regulations extend the maximum remand period by 56 days (eight weeks) to 238 days, to allow the courts to manage the delays due to COVID-19. The case backlog that necessitates this extension of remand periods delays justice for both the defendant and the victim and may add to the difficulties that prisons are facing during the pandemic. Extending remand can have extremely detrimental effects on the mental health of the individual and on the welfare of their families, every effort should be made to reduce it as soon as possible. The House may therefore wish to ask the Minister what other measures are being taken to address the backlog of trials.
These Regulations are brought 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.
1.The Prosecution of Offences (Custody Time Limits) Regulations 19871 (the 1987 Regulations) set the maximum period that a defendant awaiting trial in the Crown Court can be held on remand. If the trial cannot be heard before the limit expires, the court must release the person on bail unless the prosecution successfully applies to extend it on an individual basis. These Regulations extend the Custody Time Limits (CTLs) currently provided in the 1987 Regulations by 56 days (eight weeks): from 182 days to 238 days for all triable either-way2 and indictable only criminal offences awaiting trial on indictment at the Crown Court; and from 112 days to 168 days, in the rarer cases where a voluntary bill of indictment3 is preferred, or a fresh trial has been ordered by the Court of Appeal.
2.This temporary extension to the maximum time on remand will apply to any defendant remanded in custody for the first time after 28 September and will apply for nine months to 28 June 2021. It should be noted that for those remanded towards the end of the period, the longer remand periods will continue in effect after these Regulations have lapsed.
3.The Ministry of Justice (MOJ) says that the COVID-19 pandemic has presented unprecedented challenges for the criminal court process, including the Crown Court’s ability to hear jury trials for all defendants within their CTL. While the Government are taking action to increase capacity to pre-COVID levels, these extensions to the remand period are to allow courts to effectively manage these unavoidable delays.
4.The type of offences in question are serious; the current CTL of 182 days would apply to indictable only offences (such as murder, robbery, sexual assault), and some either-way offences (such as burglary, drug trafficking and firearm offences). The nature of these offences means that, if found guilty, a defendant should incur a sentence greater than the amount of time they spent in custody awaiting trial. However, it should also be noted that MOJ states that if the remanded person is subsequently found not guilty and acquitted, or given a non-custodial sentence, there is no provision or reason to award compensation as long as the indictment was lawful.
Capacity within prisons
5.This Committee has seen a number of instruments where we have questioned whether prisons currently have the capacity to deal with additional occupants and it seems self-evident that extending time on remand must increase the prison population. We asked MOJ how this would be addressed but were not entirely convinced by their 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, 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.”
6.MOJ also explained that:
“Defendants who are remanded in custody pre-trial should be held in separate accommodation from convicted prisoners (as well as offenders awaiting sentencing, who have been remanded in custody post-conviction) where Governors consider this can be reasonably done. Cell sharing is permitted between unconvicted and convicted prisoners if the unconvicted prisoner’s consent has been obtained.”
The House may wish to ask the Minister for further information about the process for obtaining an unconvicted person’s consent and what safeguards will be in place to ensure that an unconvicted person is not put under any pressure to give it.
7.We asked 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. MOJ replied:
“Decisions about whether to grant bail or remand in custody are solely a matter for the courts/judiciary acting in accordance with the law. The courts always start with the presumption that a defendant should be granted bail. This recognises that a person should not be deprived of his or her liberty unless that is necessary for the protection of the public or the delivery of justice.
In deciding whether or not to grant bail, the court will consider various factors, such as the nature and seriousness of the crime, the character of the defendant, past criminal records, associations and ties with the community, and the defendant’s previous record of abiding by bail conditions. The main reasons for refusing bail are that the defendant is accused of an imprisonable offence and the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail, would abscond, commit further offences while on bail, interfere with witnesses or otherwise obstruct the course of justice.”
8.We also asked how many people on remand charged with serious crimes have already been released on bail because they have exceeded their 182–day CTL. MoJ replied:
“The Crown Prosecution Service review all CTLs in cases where they expire before the trial has taken place, to determine whether they wish to apply for an extension. In these circumstances it will be for the court to decide whether to grant an extension of the CTL or to release the defendant on bail. This is decided on a case by case basis. Data on the number of defendants released on bail is not correlated or published.”
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.
Conclusion
9.While we understand why the pandemic has delayed court hearings, it has added to a backlog that existed before the outbreak of COVID-19. Although the current extension of remand to a maximum of 238 days is intended to be temporary, it appears to us to be a way of working round a problem rather than solving it.
10.The backlog that necessitates this extension of remand periods delays justice for both the defendant and the victim and may add to the difficulties that prisons are facing during the pandemic. 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 House may therefore wish to ask the Minister what other measures are being taken to address the backlog of trials.
1 Prosecution of Offences (Custody Time Limits) Regulations 1987 (SI 1987/299).
2 Offences that can be tried in either the magistrates’ court (as a summary offence) or the Crown Court (as an indictable offence) depending on the seriousness of the offence and the likely sentence: for example for theft where it was tried might depend on the value of the items stolen. The decision is made by the magistrates’ court.
3 A voluntary bill of indictment is where the Crown Prosecution Service applies to a judge of the High Court to have a case heard in the Crown Court rather than the magistrates’ court. It enables a crown Court trial without preliminary procedures in the magistrates’ court.