COVID 19 and Custody Time Limit Extensions in cases that will not result in a substantial custodial sentence

The Covid-19 outbreak presents an unprecedented challenge for the Criminal Justice System in England and Wales. Cases may be adjourned for many weeks to a date for mention, not for trial, and when the eventual trial date may be unknown.

This guidance is for use during the Coronavirus pandemic for the handling of cases that involve a Custody Time Limit (CTL) that will not result in a substantial custodial sentence. It is particularly relevant to cases being tried in the magistrates’ courts but may also be relevant to a small number of cases in the Crown Court.

There are two main CTLs contained in The  Prosecution of Offences (Custody Time Limits) Regulations 1987/299. These are 56 days for offences being tried in the magistrates’ courts and 182 days in Crown Court cases.

CTLs can be extended under section 22 of the Prosecution of Offences Act 1985 but there will be cases in which consideration should be given to whether a CTL extension should be sought for offences that would not, on conviction, result in a sentence beyond the period already spent in custody by the defendant.

The maximum sentence that can be imposed by the magistrates’ courts is currently six months’ (182 days) imprisonment for one offence (or twelve months for two or more either-way offences). For such terms of imprisonment an offender will normally serve half of their sentence in custody. It follows that an extension of the 56 day CTL limit in the magistrates’ courts may lead to a longer period in custody than the defendant will serve, if convicted.

Before applying to extend a CTL, the prosecutor must be satisfied that if the anticipated extension were to be granted, the likely sentence on conviction will not have been reached or passed by reference to time spent on remand awaiting trial for the index offence, having regard to the maximum sentencing powers of the court and any applicable Sentencing Guideline.

Where the prosecutor is not satisfied that it is appropriate to apply to extend a CTL by reason of the likely sentence on conviction, the court should be invited to impose appropriate conditions from the expiry of the applicable CTL (but - absent some other change in circumstances - the objection to bail pending trial should be maintained until the expiry of the CTL). In such cases prosecutors should invite the court to follow the process set out in Rule 6(6) of The  Prosecution of Offences (Custody Time Limits) Regulations 1987/299 and only release the defendant from the expiry of the CTL. This rule specifically applies to the Crown Court but prosecutors should invite the magistrates to follow the same practice.

In reviewing a possible CTL extension prosecutors should also review the case to ensure that the provisions of the Code for Crown Prosecutors are still met and that any further period in custody will be followed by an effective trial.