Protocol for the effective handling of custody time limit cases in the magistrates’ court and the Crown Court between HM Courts & Tribunals Service and the Crown Prosecution Service

Contents

• Objective of the protocol
• Custody time limits
• Calculating the CTL
• Listing trials
• Listing trials beyond the CTL expiry date
• Listing CTL extensions
• Actions when a defendant is to be remanded or bailed
• Bail at expiry of CTL
• Dealing with defendants where this is more than one relevant CTL
• CTL monitoring process
• Dealing with a prosecutors’ appeal against a magistrates’ court refusal to extend a CTL
• Re-trials ordered by the Court of Appeal and Voluntary Bills
• Service of documents

Objective of the protocol

This protocol is an agreement between HM Courts & Tribunals Service (HMCTS) and the Crown Prosecution Service (CPS). Its purpose is to set a framework for co-operation, exchange of information, advance notification and joint working with respect to custody time limits (CTLs). It does not create legal obligations or restrictions on either party. It replaces the protocol dated 1 December 2014.

It is the CPS' statutory duty to prepare the prosecution diligently and expeditiously. Additionally, the CPS should make timely and appropriate applications to extend CTLs to ensure that bail is not granted in inappropriate cases and public confidence is maintained in the criminal justice system.

HMCTS and the CPS will identify and monitor those cases subject to a CTL. When a case is subject to a CTL all efforts will be made by HMCTS and the CPS to identify a trial date within the CTL to assist the court when setting the trial date.¹

There is a joint duty on HMCTS and the CPS in finding and making arrangements for an alternative venue for a trial where it is not possible for this to take place within the CTL.

For these reasons HMCTS and the CPS have agreed to the terms of this protocol as a basis for local agreements for the efficient and expeditious handling of cases that involve a CTL at local court centres. It incorporates (referenced by footnotes) the Lord Chief Justice’s Criminal Practice Directions 2015 which deals with CTLs at XIII Listing of trials, custody time limits and transfer of cases. This protocol is not intended to disturb existing local arrangements that may cover more than the requirements contained within this protocol.

Custody time limits

CTLs safeguard unconvicted defendants by preventing them from being held in pre- trial custody for an excessive period of time. CTLs apply to each and every charge and not the offender.

Where a defendant is remanded in custody the CPS advocate at the first hearing and each subsequent hearing will inform the court of the date on which the relevant CTL expires.¹ A note of the CTL expiry date(s) must be made on the court record, CPS case file or advocate’s computer and as soon as possible after the hearing recorded in the CPS case management system (CMS) and the custody time limit diaries. the court will, if necessary, prompt the advocate to announce the CTL expiry date at every hearing where a CTL is running in order that both agencies agree and record the same dates.

The CPS will prioritise the preparation of custody cases with a view to ensuring that the trial can start within the CTL to demonstrate preparation of the case with due diligence and expedition if it becomes necessary to seek an extension of the CTL.

The CPS will review the CTL diaries and CMS to monitor the expiry dates. A nominated legal manager and Level D manager will consider any cases identified by these checks at least weekly. In compliance with the statutory period before the limit expires, the CPS will serve notice on the court and the defence if it appears that the case may not be able to start within the time limit so that the court can consider whether to grant an extension. The CPS will provide a detailed application and chronology of events to help the court to decide whether the prosecution has acted with all due diligence and expedition.

However, it is not expected that the CPS will serve an application to extend the CTL if the case is listed for a trial and is expected to proceed in the ordinary course of court business. If such a case has to be adjourned, the court may then be invited to exercise its powers under the CTL Regulations to reduce the period of notice required or to waive notice all together where it is satisfied that it is not practical in all the circumstances to give the full or any notice as required. The court may also waive notice if the defence indicates that they it does not require such notice.

Calculating the CTL

Time periods for the first remand in custody of a defendant must be carefully calculated and double checked by nominated managers after court by reference to the CTL calculator and ready reckoner². This has been compiled to take account of all public holidays, weekends and court closure dates bringing expiry dates forward in each case. The statutory discounting of the day of the first remand has also been taken into account. Note: XHIBIT does not discount the first day.

The ready reckoner should be used for the initial remand only. The calculator should always be used in preference to the ready reckoner.

Listing trials

All efforts must be made at the magistrates’ court first hearing if the case is to remain in the magistrates’ court and at the plea and trial preparation hearing in the Crown Court to list a case within the CTL. The CTL may only be extended in accordance with section 22 Prosecution of Offences Act 1985 and the Prosecution of Offences (Custody Time Limits) Regulations 1987 (as amended).³

The CPS must inform the court when the CTL lapses. Throughout the duration of the case, the CTL must be kept under continual review by the parties, HMCTS and the Resident Judge.⁴ Its expiry date should be announced at every hearing by prosecution and agreed by the defence.

If the CTL is at risk of being exceeded, an additional hearing should take place and should be listed before the Resident Judge, or trial judge or other judge nominated by the Resident Judge.⁵

The list officer must consider the nature and length of trials listed elsewhere at the court and assess whether any cases where a defendant is on bail could be moved to accommodate the custody trial. If suitable, given priority and listed on a date not less than 2 weeks before the CTL expires, a case may be placed in a warned list.⁶

Listing trials beyond the CTL expiry date

If the above action does not enable the case to be listed within the CTL, enquiries must be made across the cluster with other magistrate’s courts or Crown courts. At this stage the local Cluster Manager, Justice’s Clerk or Resident Judge will be made aware. If this still does not resolve the problem, enquiries will be made across the Region by the Cluster or Operations Manager. At this stage the Regional Support Unit (RSU), Delivery Director and Presiding Judge will be made aware.

If following all the above a trial slot has not been found enquiries will be made across the neighbouring regions by the local RSU. At this stage all neighbouring Regional Support Units, Delivery Directors and Presiding Judges will be made aware. The court should ensure that records of all such enquiries are recorded so that a statement setting out in detail what has been done to try to accommodate the case within the CTL can be prepared in accordance with paragraph 26 below.

Where courtroom or judge availability is not in issue, but all parties and the court agree that the case will not be ready for trial before the expiration of the CTL, a date may be fixed outside the CTL. This may be done without prejudice to any application to extend the CTL or with the express consent of the defence; this must be noted on the papers.⁷

Where it is appropriate to do so consideration should be given to extending a CTL when a trial is listed beyond the CTL expiry date without a separate hearing to consider a CTL extension.

Listing CTL extensions

Any application to extend CTLs must be considered as a matter of urgency. The reasons for needing an extension must be ascertained and fully explained to the court.⁸

Written applications by the prosecution to extend CTL must be made in accordance with the Act and Regulations which will allow the court sufficient time in advance of a proposed hearing. The statutory minimum is 2 days for the magistrates’ court and 5 days for the Crown court, unless under the Regulations the need to give notice is waived. The periods should be regarded as an absolute minimum and every effort should be made to give the court more notice.

Written applications to extend CTL should include a chronology and written submission providing concise reasons why an extension is necessary and which demonstrates the prosecution’s due diligence and expedition in the preparation of the case. A copy must at the same time be served on the defence.

All applications for an extension should be listed in open court, unless the Court rules otherwise, with advocates (where possible, those instructed in the trial) attending; they should be fully instructed on all aspects relating to timetable, the nature of the case and any other matter relevant to the decision that has to be made.

Any application to extend the CTL in any case listed outside the CTL must be considered by the court whether or not it was listed with the express consent of the defence.⁹

Where courtroom or judge availability is an issue, the court must itself list the case to consider the extension of any CTL. The senior manager/list officer on site must provide the Delivery Director of the circuit with a statement setting out in detail what has been done to try to accommodate the case within the CTL.¹⁰ That statement should be shared with the parties in advance of any hearing.

The court will inform the parties, via secure email list amendment, of the time, date and place of the hearing of the application to extend the CTL. Once a case has been placed into the court’s list for a hearing to determine whether a CTL should be extended, the case will not be removed from the list except by a judicial direction.

Where a CTL is extended by the court, it is anticipated that the judge/legal adviser will state the new CTL expiry date, and the new date will be noted on the prosecution’s and court’s file and other monitoring systems.

As legal argument may delay the swearing in of a jury, it is desirable to extend the CTL to a date later that the first day of the trial.¹¹

Actions when a defendant is to be remanded or bailed

When a defendant is remanded into custody (including those defendants granted conditional bail but held in custody until a pre-release condition is satisfied), the prosecutor will inform the court of the CTL expiry date. HMCTS and CPS will record this in their respective case management systems. It is anticipated that the Court will, if necessary, prompt the advocate to announce the CTL expiry date in court. The defence will be invited to agree this date.

Where a defendant is granted bail but is detained in custody pending compliance with a pre-release condition and either the CPS or the court become aware that the condition has been satisfied and the defendant is released, the party that becomes aware will immediately notify the other via secure email between the listing email box at the Crown Court, the central email box at the CPS and also notify the defence. The number of days that the defendant was held in custody must be announced by the prosecutor in the presence of the defence at the next court hearing and noted on the prosecution’s and court’s file. It is anticipated that the Court will, if necessary, prompt the advocate to announce the number of days the defendant was held in custody and the defence be invited to agree this figure.

Where a defendant subsequently fails to answer to bail, the court clerk/legal adviser will make a note on the court file of the number of days previously spent in custody (prior to being bailed) when issuing a warrant for arrest. The CPS will update CMS and instruct Saturday prosecutors to check this as files are not always available for weekend courts. This will enable any court in front of which the defendant is subsequently produced after the execution of the warrant to calculate the correct amended CTL expiry date.

Bail at expiry of CTL

Bail at the expiry of a CTL because the court did not extend the CTL is different from bailing the defendant following a successful bail application. Where bail is due to the expiry of the CTL both HMCTS and the CPS will record this is their respective case management systems.

Where a CTL is not extended by the court and the defendant is bailed at the expiry of the CTL i.e. bailed from a future date HMCTS will produce the appropriate bail order and record the date the defendant will be released.

Similarly, where a CTL is not extended by the court, but the defendant is bailed immediately¹² HMCTS will produce the appropriate bail order and record the date the defendant will be released.

In both scenarios the CTL provisions no longer apply if the defendant is subsequently remanded into custody. This is different from bailing the defendant after a successful bail application where the CTL clock restarts if the defendant is subsequently remanded in custody.

Dealing with defendants where this is more than one relevant CTL

Each charge or count including alternative counts attracts its own CTL and must be separately monitored and extended where necessary and appropriate. Where a defendant pleads guilty to one charge or count on an indictment, and that plea is accepted, but does not admit any other charges or counts, any CTL on those matters not admitted remains and may need to be the subject of an application to extend, if the CPS wish to continue to object to bail on that count and wish to continue the prosecution on the unadmitted matters.

Where an application is being made to extend one or more CTL, the prosecutor must make it clear to the court to which charge or count the application relates.

While a different CTL may be recorded against each charge in Common Platform XHIBIT can only record a single CTL. The CTL recorded in XHIBIT will be the earliest date but supported by the court log that will record every CTL.

CTL monitoring process

At the first hearing in the magistrates’ court the CPS advocate will inform the court of the CTL expiry date (or dates). The legal adviser or court associate will agree the expiry date(s) and record the expiry date(s) in the relevant IT system¹³. The CPS will record the expiry date(s) in CMS.

Where the defendant is remanded in custody other than at the first hearing in the magistrates’ court, for example by the Crown Court following a failure to surrender, the CPS advocate will again inform the court of the CTL expiry date(s). HMCTS will record the expiry date(s) in the relevant IT system and the CPS will record the expiry date(s) in CMS.

At all subsequent hearings¹⁴ the CTL expiry date will be announced by the CPS advocate and HMCTS will verify this against the date(s) recorded in its IT system. If a discrepancy is identified the legal adviser, court associate or court clerk will inform the court and the CTL expiry date(s) will be reviewed and confirmed by the court. HMCTS and/or the CPS will correct their records as appropriate.

CPS managers will check compliance with the systems weekly and provide a written assurance about the systems being operated to the Chief Crown Prosecutor.

HMCTS will undertake a series of data quality and key control checks to provide assurance regarding the accuracy of the recorded CTL, that List Officer scheduled extension applications are listed in accordance with the rules and that CTL cases are being effectively monitored.

To assist all parties the CPS CTL calculator is published at CTL Calculation Criteria  (outsystemsenterprise.com).

On the first working day of the month the CPS will send to the magistrates’ and Crown Court a computer print-out of a list of cases for that court with a CTL. Similarly on the same date the Crown Court will send to the CPS the letters produced for CTL cases expiring within the next 2 months which are produced when the XHIBIT CTLRP report is run. (There are no computer lists available for the magistrates’ court). A copy of the most current Common Platform CTL report will also be shared. A nominated person in the prosecution office will cross check the exchanged information against their own list and inform the court in the event of any discrepancy in cases or their accompanying CTL expiry date.

Dealing with a prosecutors’ appeal against a magistrates’ court refusal to extend a CTL

An appeal by the CPS against a refusal by a magistrates’ court to extend or further extend a CTL will be made expeditiously and in writing and in accordance with Rule 19.17 Criminal Procedure Rules.

Notice will be served on the Crown Court’s listing office and on the magistrates’ court that refused the extension and on the defendant.

The notice will give particulars of the defendant in the case, the charge to which the CTL applies and its expiry date, the details of the magistrates’ court that refused the extension and the date of the hearing.

Where a written notice containing the details required for an extension in the Crown Court is served on the magistrates’ court a copy will be included with the appeal notice to the Crown Court. Otherwise, such a notice will be prepared and served on the Crown Court as soon as possible and in any event prior to the hearing.

The Crown Court will notify the CPS and defence of the date, time and venue of the appeal hearing as soon as possible.

Re-Trials ordered by the Court of Appeal and Voluntary Bills

The Crown Court must comply with the Directions of the Court of Appeal and cannot vary those directions without reference to the Court of Appeal.¹⁵

In cases where a retrial is ordered by the Court of Appeal, the CTL is 112 days starting from the date that the new indictment is preferred, i.e. from the date that the indictment is delivered to the Crown Court. Court centres should check that case management systems have calculated the dates correctly.16

The draft indictment must in such cases be served on the court within 29 days of the Court’s order and the defendant arraigned within 2 months of the order or leave of the Court of Appeal will be required. This may only be granted if satisfied of the prosecution’s due diligence and there is good and sufficient cause.

Indictments granted by way of the Voluntary Bill procedure also carry a CTL of 112 days.

Service of documents

Service of any notice and accompanying documents on the court should normally be by way of email or electronic case management systems where available.

For and behalf of HM Courts & Tribunals Service: Director (Courts and Tribunals) on 14 March 2023

For and behalf of the Crown Prosecution Service: Interim Deputy Director - Operational Delivery on 21 March 2023