Abstract
AbstractIn a context where the criminal courts have been drastically affected by coronavirus, this paper seeks to demonstrate that the presumption of innocence risks becoming a further casualty of Covid-19. It will argue that prolonged pre-trial detention of unconvicted defendants has been sanctioned by the senior judiciary under the Custody Time Limit (CTL) Regulations. Following a series of important CTL decisions, a universal position of the senior judiciary, one supportive of government, is emerging: despite the case backlog resulting in defendants facing trial delays of unknown length, the exceptional circumstances of the pandemic which the executive faces, amounts to ‘good cause’ to extend CTLs. It will be argued that the correct approach for courts to follow is that that they must hear evidence that justifies why no court rooms are available before using that to mandate extensions. It will be further contended that these far-reaching decisions came from the senior judiciary's perceived need to mop up the problem posed by widespread refusals to extend CTLs, raising questions as to their ability to act independently of political pressure.
Highlights
Criminal trials across England and Wales continue to face lengthy adjournments
It will argue that prolonged pre-trial detention of unconvicted defendants has been sanctioned by the senior judiciary under the Custody Time Limit (CTL) Regulations
This paper focuses on a significant inroad to liberty faced by unconvicted defendants, which has been overlooked in the rush to explain how government is keeping ‘victims and the public safe’1 as criminal courts confront the ever-growing case backlog
Summary
Criminal trials across England and Wales continue to face lengthy adjournments. The pressures placed upon an already creaking system in the grip of a global health crisis has resulted in widespread incapacity that poses a threat to fundamental protections underpinning the criminal process. A series of recent decisions on Custody Time Limits (CTLs) has illuminated this issue as one worthy of closer examination. CTLs are set by regulations, stipulating the maximum time limit that an accused person can be remanded in custody pending trial. Whereas a routine extension to a CTL might seem unexceptional, the onset of Covid-19 led to the unprecedented phenomenon of blanket-wide extensions being granted to the prosecution, with the result that many criminally accused who found bail was refused faced the prospect of indefinite pre-trial detention.
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