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Custody Time Limits

Principle

The purpose of setting Custody Time Limits (CTL) for the preliminary stages of a case is to progress the case expeditiously and avoid an accused person remaining in custody for an excessive period (see Core Quality Standard 5.26, below).

In addition, monitoring and making appropriate actions to extend CTL ensures that those from whom the public should be protected are not released from custody through the act or default of the prosecution.

The legal burden of complying, monitoring and making application to extend CTL rests with the prosecution, though through protocols agreed with the courts, the announcement of the agreed CTL expiry date during the hearing (Core Quality Standard 5.27) and its noting on the court's papers will assist in avoiding monitoring errors and help to ensure that the case is listed before the expiry date.

The diligent and expeditious handling of cases in which there is a CTL is a corporate priority for the CPS. Failures in the CTL system must be reported; see Failures in the CTL system, below in this guidance.

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Core Quality Standards

The following is an extract from the Core Quality Standards. This is what has been published about the CPS's role in operating an efficient process for retaining, within the law, those in custody from whom the public should be protected or who themselves are in need of protection pending trial.

All must know, understand and operate under these guiding principles which will be cross referred in this legal guidance as, for example: (CQS 5.26)

"Custody time limits
"5.26 Defendants can be kept in custody pending committal for trial or trial or pleading guilty for only a limited period of time unless the court agrees to extend the time.

"5.27 Where a defendant is remanded in custody, the advocate at the first hearing and each subsequent hearing will announce to the court the date on which the relevant custody time limit expires.

"5.28 We note this information on our case file [now case records] and then record it in our custody time limit diaries.

"5.29 We prioritise the preparation of custody cases to make sure that the trial can start or the committal take place within the custody time limit, or that we can say that we have acted with all due diligence and expedition if it becomes necessary to ask the court to extend the time limit.

"5.30 We review the custody time limit diaries and our computerised case management system to check when any custody time limit is approaching. A nominated legal manager or senior prosecutor considers any cases identified by these checks at least weekly. Within a strict time period before the limit expires, we serve notice on the court and the defence if it appears that the case may not start within the time limit so that the court can consider whether to grant an extension. We provide a chronology of events to help the court to decide whether the prosecution has acted with all due diligence and expedition.

"5.31 Managers check compliance with the systems weekly and provide a written assurance about the systems being operated to its Chief Crown Prosecutor."

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Guidance

The law concerning CTL is to be found in:

  • section 22 of the Prosecution of Offences Act 1985 as amended (the Act), and
  • Prosecution of Offences (Custody Time Limits) Regulations 1987 as amended (the Regulations).

The Act and the Regulations apply to indictable, either-way and summary offences. (Archbold 3-56 to 3-65).

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CTL Protocol with Her Majesty's Courts and Tribunals Service (HMCTS)

"A Protocol for the effective handling of Custody Time Limits cases in the Magistrates' and Crown Court" has been agreed with HMCTS and is at Appendix A below. This Agreement, which is approved by the Director of Public Prosecutions, the Senior Presiding Judge and the Chief Executive of HMCTS gives effect to many aspects of this Guidance. All advocates should be familiar with it. A new version, dated February 2013, has now been released. Copies have been sent to all Presiding Judges and Resident Judges for onward transmission to member of the judiciary and to all Clerks to the Justices for distribution to all DJs and Magistrates and their staff.

CTL apply to each and every charge and not the offender. Each charge attracts its own CTL, (Archbold 1-270 and R v Wirral District Magistrates Court, ex parte Meikle [1991] Crim L R 801).

Accordingly, if a new charge is substituted then a new CTL pertaining to that charge will begin to run. Unless the defendant is able to establish bad faith, the fact that a new charge is based upon the same facts as an earlier charge does not alter this principle, (R v Waltham Forest Magistrates' Court ex parte Lee and Lee [1993] Crim L R 522, and R v Crown Court at Leeds ex parte Stubey [1999] Crim L R 822).

A new CTL will not commence if the charge is merely amended, or if the old charge is merely restated with different particulars. But in R v Leeds Crown Court ex parte Wardle TLR 13 March 2001, the House of Lords decided that when a charge of manslaughter is preferred against a person already in custody pending [being sent] for murder, the new charge was not to be regarded as included in the original offence and accordingly attracted a new CTL.

The substituting/bringing of a new charge against a person already in custody and subject to a CTL may elicit defence submissions that the prosecution are abusing the process of the court. These arguments are more likely to occur when the substitution/charging occurs near the expiration of the original CTL.

For an abuse of process to be found, a court must be satisfied that the new charge has been brought predominantly for the purpose of keeping the accused in custody rather than a reflection of further inquiries and evidence gathering or review by the prosecutor, and is not the result of a re-assessment of the case and evidence, (Archbold 1-270 and R v Leeds Crown court ex parte Wardle TLR 13 March 2001). If an application for abuse of process is made, prosecutors will have to explain the history of the case and their decisions to the court. If a new charge is added in such circumstances, prosecutors must be prepared to counter-defend allegations of abuse and bad faith.

Note: A trap for the unwary lies in Regulations 5 (6) committals and 5 (6D) cases sent. Here, where a count is added to the indictment but this count was not committed or sent for trial but added afterwards to the indictment, the CTL for this additional count is calculated from the total time allowed (112 days for committal or 182 days for sending) and commencing from the service of the draft indictment (up to the start of the trial) but less the total of any time the person was in custody since committal or, in cases sent, was in the custody of the magistrates' court and the Crown Court.

If the count is added to an indictment after its service on the Court, the CTL starts from the moment of service on the court less the deductions for the time already spent in custody.

Note: A draft indictment is served when it is handed to the proper officer of the Crown Court (if not preferred at a hearing) and, for this reason, it is helpful to obtain a written acknowledgement or make a careful note of this transaction and retain it on the case records to remove any uncertainty when the preferment takes place other than at a hearing (see Example C below).

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Preliminary Stages and Time Limits

The Act and Regulations apply to the following stages:

  • from first appearance in custody (i.e. the first appearance before the court charging a person with the offence) to the start of the trial of a summary only offence - 56 days.
  • from first appearance in custody to the start of summary trial of an either way offence - 56 days. This period however becomes 70 days in either way cases if either the court allocates Crown Court trial or the defendant elects trial; or 56 days elapse before allocation takes place.
  • from first appearance in custody to committal for trial to the Crown Court - 70 days.
  • from the date of committal in custody to the start of the trial in the Crown Court - 112 days.
    Note: committals will be abolished when the new allocation provisions are all in place later in 2013. After the relevant date, all cases will be sent following allocation and a CTL of 182 days will apply in all cases after sending, subject to deduction of any time in custody prior to the sending.
  • In the case of indictable only offences sent (and including any either way offence sent with the indictable only offence) to the Crown Court under sections 51 and 51A of the Crime and Disorder Act 1998 (as amended by the Criminal Justice Act 2003), from first appearance in custody in the magistrates' court to the start of the Crown Court trial - 182 days. (This is just a simpler way of saying that the period is 182 from the sending less all the time that the person has been in the custody of the magistrates' court since first appearance).

Note 1: Remember - all either way offences attract an initial 56 day expiry date in the magistrates' court and this should be monitored until the events that cause it to become 70 days take place.

Note2: Committal proceedings are being abolished and the final tranche of courts will operate the new allocations procedures from 28th May 2013. From, that date either way cases will all be sent to the Crown Court which have their first appearance on or after that date. The CTL for an either way offence in the magistrates' court will remain unchanged, but when an either way case is sent to the Crown Court, the CTL will become 182 days, less any time the defendant has been in the custody of the magistrates' court in relation to that offence. This change has been made by the Prosecution of Offences (Custody Time Limits) (Amendment) Regulations 2012.

Note 3: The start of a summary trial is when the court begins to hear evidence for the prosecution, (either at a trial or to consider whether to exercise its power under section 37(3) Mental Health Act 1983 to make a hospital order) or where a guilty plea by the defendant is accepted - Section 22 (11B) of the Act.

Note 4: The start of a trial on indictment in the Crown Court is when a jury is sworn to consider the issue of guilt (or responsibility for the act/omission charged under the Criminal Procedure (Insanity) Act 1964, as amended) or if and when a guilty plea is accepted before a jury is sworn - Section 22 (11A) of the Act.

Note 5: Where a preparatory hearing is held, whether for a serious or complex fraud under section 8 Criminal Justice Act 1987 or for long or complex cases under section 30 Criminal Procedure and Investigations Act 1996 or in terrorism related cases the trial begins with the start of the preparatory hearing which brings the CTL to an end.

Note 6: Once a jury is sworn, the CTL ceases and no monitoring is necessary even if the jury are sent away to facilitate legal argument. No new CTL commences even if subsequently, that jury is discharged and a period of remand follows before a new trial can be arranged.

Note 7: Since the 15th August 2010, changes made by the The Coroners and Justice Act 2009 at section 144 and Schedule 17 have introduced additional European and foreign convictions which must be taken into account in drug trafficking and domestic burglary offences. These might additionally make these offences indictable only and therefore the CTL that needs to be applied. Careful consideration needs to be given to the handling of these cases. See the section on Mutual Legal Assistance in the legal guidance International Enquiries.

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Calculation of Custody Time Limits Expiry Dates

First remand into custody

Time periods for the first remand in custody of a defendant begin from the day after the date of first appearance until midnight on the day of expiry (Regulation 2(4)). Where a CTL is due to expire on a Saturday, Sunday, Christmas Day, Good Friday or a Bank Holiday, it will be treated as expiring on the next earlier normal working day. For example, if the CTL is due to expire on a Bank Holiday Monday it will be treated as expiring on the previous Friday (and at Easter on Maundy Thursday) (Regulation 2(5)).

A computer generated CTL calculator is the preferred method of calculating CTL expiry dates and is available via the Infonet > Applications, and on the CPS internet site. The calculator enables the first and subsequent remands to be calculated on it. It can be downloaded from the web site. Updates for the following year will be placed on the Infonet every December. It will be necessary to update any calculator downloaded onto a laptop or tablet at that time by deleting the old calculator and downloading the version for the new year. It will still be possible to check dates of the previous year in the new version. A word document may be generated from the calculator which can be saved on CMS as an audit trail. The calculator also produces review dates for each case. Full instructions can be found on the Instructions button on the calculator.

A ready reckoner will continue to be produced for the moment. However, given that prosecutions now take place with advocates using tablet devices, it makes good sense to download the CTL calculator and to use this in preference to the ready reckoner which can only be used for initial remands. Properly used, CTL calculators offer 100% accuracy.

Re-remand into custody

Where a defendant is subsequently granted bail and then re-remanded into custody, the electronic calculator may be used to recalculate the amended custody time limit expiry date. Because it is not the first remand, the date when the defendant is remanded into custody is counted. It is only for the first remand that it is not counted. The last day in custody when released is also counted as a whole day in custody when calculating how many days are left of the CTL. This is so however early the hearing takes place in the court's business. If using the calculator, these adjustments are automatically taken into account.

Example of recalculation of CTL Expiry Dates

Example: The following is a worked example using the 2013 calculator.

A defendant is remanded in custody on 1st January 2013 for an either way offence - the 56 days limit applies. The CTL expires on the 26th February 2013.

Then the defendant is granted bail on 8th January 2013 and the CTL is suspended. The balance of the CTL remaining is 48 days - the first day of the 56 days is discounted under the regulations and although only in custody for part of the 8th January before release to bail, the 8th is counted as a whole day in custody and therefore 7 days must be subtracted from 56, leaving 49 days left.

However, the defendant is re-remanded into custody on 14th January 2013 for breach of bail conditions. CTL monitoring is resumed and the CTL will now expire on 1st March 2013.

The defendant is again granted bail on 21st January 2013 and the CTL is suspended again. (Note: he has on this occasion been in custody a further 8 days, counting the first day of remand (14th January) and the last (21st January) as whole days in custody, leaving a balance of 41 days (i.e. 56 less 15 days)). Finally, the defendant following yet another breach of bail is re-remanded into custody on 24th January 2013. CTL monitoring resumes. The 41 days left of the CTL now would expire on 5th March 2013. However, on the 24th January, the case is allocated to the Crown Court. A 182 day CTL now applies, less the time in custody of the magistrates' court. The days in custody are the previous 15 and the day of the remand to custody on the 24th January [Note: as it is not the initial remand, it is counted]. This makes a total of 16 days to be subtracted from the 182. This is 176 days left to run so the CTL will expire on the 9th July 2013.

This case illustrates how easy it is to use the calculator and all prosecutors must now use it to calculate such cases.

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Custody Time Limits and Section 51 Crime and Disorder Act 1998

Regulation 5 paragraph 6B provides that where a defendant is sent for trial under section 51, the maximum period of custody between being sent to the Crown Court for an offence and start of trial in relation to it (i.e. each offence sent) is 182 days less any period, or the aggregate of any periods, during which the defendant has since his/her first appearance for the offence been in the custody of the magistrates' court.

Examples of some situations that arise are set out below.

Example A
The defendant appears before the magistrates' court on 2nd January 2013 charged with rape. The magistrates send him to the Crown Court on that day. The CTL is 182 days from 2nd January, namely 3rd July 2013.

Example B
The defendant appears before the magistrates' court on 2nd January 2013 charged with rape. There are further inquiries to be made and, unusually, he is remanded in custody back to the magistrates' court to the 9th January. The only time limit that can apply is the indictable only one and the 182 day CTL starts and must be calculated. On 9th January, he is sent to the Crown Court. The CTL is 182 days from 2nd January: i.e. 3rd July 2013. The time in custody in the magistrates' court is taken into account and subtracted. The easiest practical way to calculate it is to simply calculate the 182 days from the date of the first remand: i.e. 2nd January 2013.

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Adding Counts to the Indictment after Sending for Trial or Committal

The rule to be applied is that a CTL expiry date of an either way or indictable only offence added to an indictment will be the same as the offence to which it is related.

So if an either way or indictable only offence is added to an indictment for which the defendant was sent for trial following allocation, the offences added will also have a CTL of 182 days, but less the total time in custody which the defendant has served for the offence sent, up to the time of preferment. The end result will be that the CTL expiry date will be the same for the count added as the offence sent. The authority for this is found in Regulation 5(6C) of the CTL Regulations where the bill is preferred with the authority of a High Court judge and 5(6D) otherwise.

[Similarly, for cases that were committed for trial, if an indictable only or an either way offence is added to an indictment for an offence committed for trial, the CTL will always be 112 days but less any time in custody which the defendant has served since Committal. The authorities for these are also in the CTL Regulations at Regulation 5(5) where preferred under the authority of a High Court judge and paragraph 5(6) otherwise.]

Example C
A defendant appears before the magistrates' court on 2nd January 2013 charged with armed robbery. The magistrates send him to the Crown Court on that day. The CTL expiry date is 182 days from 2nd January, namely 3rd July 2013. A co-defendant is charged with the same offence and appears in court on the 25th January. He is sent to the Crown Court on the 25th January 2013. The CTL expiry date is 26th July 2013. A further co- defendant is charged and appears in court on 4th February 2013. His CTL expiry date is 5th August 2013. Each charge carries its own CTL and each will have to be monitored separately. It is decided to add a further robbery charge against all defendants and an ABH against one defendant. The robbery charge is preferred on the 1st March 2013 against each defendant and its CTL will be 182 days less the time in custody each defendant has served to that date. Each CTL expiry date for the robbery will be the same expiry date as that of the cases for which they were sent for trial: no extra time is gained by the prosecution where the additional counts are added to the same indictment. The ABH charge, although either way (and is connected to a robbery) also has a 182 day CTL despite being an either way offence and has the same expiry date as that of the other offences of the defendants to which these relate (Regulation 5(6D)).

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Transfers

In the case of transfers under the Criminal Justice Acts of 1987 and 1991, the Crown Court CTL commences when the case leaves the jurisdiction of the magistrates' court (on service of the Notice of Transfer).

Schedule 6, paragraph 2(1)(a) of the 1991 Act empowers magistrates' courts to remand in custody when the Notice of Transfer is before them. In relation to defendants in custody, therefore, prosecutors should only issue and serve Notices of Transfer at a remand hearing at which the defendant is present. An application for further remand in custody should then be made.

When committals are abolished in a criminal justice area, prosecutions where a notice is served on the court will result in the defendant being sent to the Crown Court. The notice will be under section 51 B in serious or complex fraud cases and section 51C in certain cases involving children. The CTL of 182 days will start from sending as per normal casework.

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Effect on CTL of prosecution appeals during the preliminary stages

Section 22 of the Prosecution of Offences Act 1985 enables CTL to be set which apply during the preliminary stages of criminal proceedings, but not during the trial itself. If the prosecution appeals against a ruling made prior to the commencement of the trial, subsection (6B) of section 22 (inserted by section 70 of the Criminal Justice Act 2003) disapplies the CTL for the period during which proceedings are adjourned pending the outcome of the prosecution appeal under Part 9 of the 2003 Act.

The effect of this is that the CTL stops as soon as the case is adjourned in relation to the count on the indictment which is the subject of the appeal and re-starts at the resumption of the hearing when the appeal has been determined. The day the CTL stops and restarts should both be counted as full days and subtracted from the total to determine the balance remaining. The case records in the monitoring systems must be updated accordingly.

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Retrials: aborted hearings and their effect on CTL

Retrials Ordered by the Court of Appeal

Where a case is committed, transferred or sent to the Crown Court under section 51 and 51A Crime and Disorder Act 1998 and a conviction is quashed by the Court of Appeal with an order for a re-trial under sections 7 and 8 of the Criminal Appeal Act 1968, the custody time limit for a person ordered to be detained in custody will continue to be 112 days (in all cases, whether previously committed, transferred or sent) from the date of preferment of the indictment for the re-trial: Regulations 5(2)(b) and 5(3)(b) of the CTL Regulations.

The draft indictment must be served on the Crown Court within 28 days of the order (rule 14(1)(c) of the Criminal Procedure Rules) and the defendant must be arraigned within two months of the order at a PCMH or leave from the Court of Appeal will be required. This will not be allowed unless the Court is satisfied that the prosecution has acted with due expedition since the order under section 7 and that there is good and sufficient cause; (Archbold 7-112 and 113).

Service occurs when the draft indictment is delivered to, as opposed to signed by, the appropriate officer of the Crown Court: Criminal Procedure Rules, rule 14. It is, therefore, essential that in every case a careful note is made of this date and retained on the case records.

Retrials Ordered by the Court of Trial

If a Crown Court trial is aborted, for example because the jury cannot reach a verdict or because the jury is discharged following some procedural irregularity and the defendant is remanded in custody, the CTL which has stopped DOES NOT RESTART. CTL will not apply to the period between that trial and the start of a retrial (R v Crown Court at Leeds, ex parte Whitehead TLR 5 July 1999). Similarly, no CTL runs where a defendant is later allowed to vacate a guilty plea and a trial is ordered or a committal hearing is aborted and has to restart R v Governor of Winson Green Prison, ex parte Trotter [1992] 94 Cr. App. R. 29 below.

It should be noted, however, that in these cases Auld LJ said that the trial judge should be vigilant to protect the interests of an accused in custody by taking steps to fix a speedy retrial or, if there were difficulties with that, by considering the grant of bail or even staying the prosecution as an abuse of process.

Retrials Ordered following a Prosecution Application

If the High Court quashes an acquittal on the grounds that it was tainted (following a prosecution application), whether the proceedings for the offence previously acquitted initiate a fresh custody time limit (Crown Court or magistrates' court - depending on the offence) is uncertain as no express provision appears to have been made. To comply with the European Convention on Human Rights, the fresh proceedings are categorised as a 're opening' (Article 4 of Protocol 7 provides for an absolute ban on fresh proceedings for the same offence but provides for a re-opening for a fundamental defect).

Although it is arguable that if the case is re-opened, a CTL is unlikely to apply, the safest course for a prosecutor in such circumstances is nevertheless to handle the case as though a CTL does apply (if the defendant is remanded in custody by the court before trial). Certainly the court will expect an expeditious handling of the case.

Retrials Ordered by the Court of Appeal following an order quashing a conviction

If the Court of Appeal makes an order quashing a conviction for a qualifying offence under Part VI of the Criminal Justice Act 2003 following new and compelling evidence and order a retrial following the application by a prosecutor, the trial will take place on a fresh indictment preferred by the direction of the Court of Appeal. The procedure to be followed will be that the new indictment must be served on the court within 28 days of the Court of Appeal's order (see the Criminal Procedure Rules, rule 14) and the defendant arraigned at a PCMH to be for safety's sake well within the 2 months from the Court of Appeal's order. A new 112 day CTL will start from the date of service of that indictment on the court. Any time in custody served by the defendant following an arrest under section 89 CJA 2003 and before the service of the indictment on the court does not appear to trigger a new CTL under section 22 POA 1985 though the court will be bound to take that time into consideration when sentencing the offender. The case should of course at all times be handled with due diligence and expedition as though there was a CTL effective at the time.

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Young Offenders

Section 22(11) of the Act lays down that CTL apply not only to young offenders remanded in custody but also to those remanded to local authority accommodation under section 23 Children and Young Persons Act 1969.

Where a secure accommodation order is made, the time limit runs from the date when the order was made, not from when the young person is actually placed in the accommodation; (Archbold 1-268).

The time limits for young offenders in the Youth Court are as follows:

  • homicide and for 16 and 17 year olds - a firearms offence under section 51 A (1) Firearms Act 1968 and section 29 (3) Violent Crime Reduction Act 2006 where the prohibited weapon would attract the mandatory sentence - 70 days from the date of first appearance in custody to committal.
  • either way offences (including those which are indictable only in the case of an adult) where the court is required to determine venue - the time limit will be 56 days from first appearance in custody if, within that period, the Youth Court decides that the case is suitable to be heard in that court. The time limit will be 70 days if the Youth Court decides that the case should be committed to the Crown Court or does not make the decision as to mode of trial (or allocation) within the initial time limit of 56 days. (R v Stratford Youth Court, ex parte S [1998] 1 WLR 1758, Archbold 3-58).
  • either way offences (including indictable only cases where the court is not required to determine venue) - 56 days from first appearance in custody to a guilty plea or trial if the accused has entered a not guilty plea within that period.
  • if the youth has not entered a plea within the 56 day period, then the limit is 70 days.
  • summary only offences - from the first appearance to start of summary trial - 56 days.

Where a youth offender appears in the magistrates' court and the provisions of section 51 of the Crime and Disorder Act 1998 are satisfied and the youth offender is sent to the Crown Court, the relevant CTL is the same as that for an adult, namely 182 days. Under the new allocation provisions when committals are abolished, the CTL for youth cases sent to the Crown Court will be 182 days, less the time in custody in the youth court.

Youth Example A
A 16 year old youth appears in a youth court charged with robbery. The youth pleads not guilty. He is remanded in custody to the care of the Local Authority. The CTL is 56 days. Unfortunately, a month later, the victim dies; there is a causal medical link between the death and the robbery. The youth is arrested and charged with manslaughter. The robbery is withdrawn. The court remands the youth in custody. The CTL for the manslaughter is 70 days from the first appearance to committal for this offence in the magistrates' court and 112 days in the Crown Court. The time spent in custody for the robbery is ignored. If the new allocation provisions were in force, the youth would be sent to the Crown Court with a CTL of 182 days without deduction. The defendant was not previously remanded for the manslaughter offence (Regulation 6D and 6B), only for the robbery.

Youth Example B
A 17 year old youth is charged with a night time domestic burglary, during which he threatened violence against the sole elderly female occupant of the house to obtain her valuable jewellery. The defendant appeared unrepresented and was remanded in custody for a week for legal representation and advance information. The victim has been traumatised by the offence. The CTL is 56 days. At the next hearing, the court determined that the offence constituted a grave crime and, taking all other factors about the youth and the likely sentence into consideration, the case should be committed to the Crown Court. The CTL will be 70 days from the date of the first remand to committal. However, once allocation is in force, the defendant would be sent to the Crown Court with a CTL of 182 days, less the time in custody so far.

Youth Example C
A 17 year old youth appears at the magistrates' court jointly charged (with an adult) with an armed robbery. The court considers it to be in interests of justice to send both to the Crown Court. Both are sent in custody to the Crown Court under section 51 and the CTL will be 182 days.

Note: Overall Time Limits. The provisions in section 22 that refer to the overall time limit and the whole of sections 22A and 22B are not in force. Overall time limits were piloted for youth cases where the prosecution had to be completed from arrest to sentence within tight timescales. The Government did not accept the results of the pilots and so any reference in section 22 to overall time limits is of no effect. Care should be taken to distinguish those parts of section 22 that refer to the overall time limits from those that refer to CTL. Sections 22A and B can similarly be disregarded.

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Mental Health Act Transfers

Section 48 of the Mental Health Act 1983 (Archbold 3-81) empowers the Secretary of State to transfer from prison to hospital (a transfer direction) any remand prisoner who is found to be suffering from mental illness or severe mental impairment. The transfer can only follow a lawful remand in custody and appropriate medical reports.

The CTL continues to run notwithstanding the transfer order. If, therefore, a CTL expires, the defendant will be entitled to bail. Accordingly, the CTL must be monitored and, if appropriate, an application made to extend before expiry.

Once the defendant has been remanded into custody and a transfer direction made, the magistrates' court may further remand the defendant in custody without that person being brought to court provided a period of 6 months where a person has not been before the court is not exceeded. Accordingly, the custody time limit may and should be extended in the defendant's absence in such circumstances (section 52(3) Mental Health Act 1983 for the remands in absence).

CTL will continue to run for remands under sections 35 and 36 of the Mental Health Act 1983 (to hospital for a report or treatment) if the defendant is unconvicted or the court has not yet found that he was responsible for the acts complained of.

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Cessation of Custody Time Limits

CTL cease to apply for a charge/count when (Archbold 1-270):

  • an accused is granted bail and released from custody in relation to that charge/count.
  • a guilty plea has been entered and accepted in court. This includes those cases where although the plea has been accepted, a Newton hearing is to take place in order to determine the facts to form the basis of sentencing because there is lack of agreement on the basis of the plea.
  • a person arraigned on an indictment pleads not guilty to an offence charged in the indictment but guilty to some other offence for which he could be found guilty on that charge, the plea is accepted and that person is therefore convicted on the matter admitted, but without trial for the matter to which he entered a not guilty plea taking place. This has the effect of there being an acquittal on the denied matter and the CTL for it ceases (see section 6 (5) Criminal Law Act 1967).
    Note 1: There has to be a valid existing indictment (beware preliminary hearings where there may not be one), an arraignment must take place there must be a plea to an offence for which the defendant could have been convicted at trial on the original indictment and the guilty plea to the lesser offence must be accepted by the prosecution and the court. Care must be taken to ensure that the matter pleaded to is an alternative to the offence arraigned on the indictment: e.g. section 18 for an attempt murder, or section 20 GBH for a section 18, but not burglary for a robbery.
    Note 2: In cases were a defendant is later allowed to vacate a guilty plea, no CTL re starts but any case preparation must be conducted with all due diligence and expedition in order to avoid further delay.
  • a magistrates' or youth court has commenced the hearing of a summary trial.
  • a magistrates' court has commenced the hearing of a section 6(1) committal. If the CTL expires during an adjourned or aborted committal hearing there is no need to apply for an extension, (R v Governor of Winson Green Prison, ex parte Trotter 94 Cr. App R 29).
  • a committal under section 6(2) has taken place; the Crown Court time limit of 112 days will then apply from the day of committal.
  • in the Crown Court, the start of the trial takes place. The "start of the trial" means the point at which either a plea of guilty is entered and accepted, or a jury is sworn in.
    Note: If the basis of the guilty plea is not accepted, the CTL continues: e.g. if a defendant charged with murder pleads to manslaughter but that plea is not acceptable to the prosecution, the CTL for murder continues.
  • Warning: Beware those cases where fitness to plead arises. The procedure has changed and now takes place in two stages. It is a judge (not a jury) who determines the issue of fitness to plead (under section 22 Domestic Violence, Crime and Victims Act 2004, i.e. under some disability that would be a bar to being tried). If the judge decides the defendant is not fit to be tried, a jury is sworn to determine whether the offender was responsible for committing the acts charged but does not go on to consider any intent. However, the law has not been amended to show when the 'start of the trial' is deemed to take place, i.e. when the judge decides the fitness issue or when a jury starts to consider whether the offender committed the act.
  • Prosecutors should raise this issue with the judge and invite him/her to declare that the CTL has stopped when s/he determines fitness to plead, irrespective of the finding. If the judge is not inclined to consider the issue then prosecutors are advised to continue to monitor any CTL to the point where a jury is sworn.
  • at the start of a preparatory hearing whether for a serious or complex fraud under section 8 Criminal Justice Act 1987 or for long or complex cases under section 30 Criminal Procedure and Investigations Act 1996 where the trial begins with the start of the preparatory hearing.
  • a case is discontinued or a count is ordered to lie on the file.

Note: Where an either way offence is remitted back to the magistrates' court for trial, (summary trial being deemed more appropriate - there being no indictable only offence on the indictment - Schedule 3, paragraph 9 of the Crime and Disorder Act 1998) no CTL applies to the case when remitted but it should be expedited as if there was one. The reason for this omission was as a result of a policy decision made by the Government at the time the legislation was being prepared. It was considered the position would have been overly complex.

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Disregarding a CTL - Breach of condition following expiry and escaping

Section 22(5) of the Act (Archbold 1-267) provides that the CTL will be disregarded (i.e. no CTL will run) in the following situations:

  • The defendant was released on bail following the expiry of CTL and, subsequently, either fails to surrender to that bail or is arrested for breach or likely breach of bail under section 7(3) Bail Act 1976; or
  • The defendant escapes from custody before the expiry of the CTL and is then rearrested.

Note: The CTL only runs from the date of first appearance. If therefore a defendant is charged by the police but escapes prior to being remanded in custody for the first time by the magistrates, no CTL will have started to run until he is subsequently arrested and appears before the court and is remanded in custody. At this point and following a remand, the CTL will commence. In addition, any charges arising out of the period of absconding will attract their own CTL even if there is no CTL on the existing charge or charges present when the defendant absconded. The same principles apply where a youth and local authority accommodation are concerned.

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Pre Release Conditional Bail

If the accused is granted conditional bail; for example bail subject to a condition of residence or surety, but is unable to meet the condition and remains in custody, the CTL will run (R v Ofili [1995] Crim L R 880). Crown Prosecutors and paralegals must ensure that when an accused is given conditional bail, but not released on the day of grant and will not be until the condition is satisfied, the case is closely monitored because CTL will run or continue to run until actual release.

The court should be asked to adjourn the case to a date within the CTL to check whether the accused has met the conditions of bail and, in fact, been released on bail. Otherwise, the risk is that the CTL will expire and the defendant will be entitled to bail which may be unconditional, unless the court can be persuaded that some conditions (not surety or security) are appropriate (but see the note 'A CTL failure arises where there has been an error on the part of the CPS', below in Failures in the CTL System).

There are clear practical difficulties in keeping in touch with a case where someone is on remand pending a condition being satisfied and being able to note the date of release to bail. As is always the case, times spent in custody are cumulative and need to be correctly identified and noted on the case records so that in the event of re arrest, the prosecution will know precisely how much of the CTL is left to run. Release may require a daily check with the prison, police, court or defence unless alternative arrangements can be agreed.

Note: Where an accused is remanded in custody, the CTL continues to run for that offence, even if subsequently the accused receives a custodial sentence in respect of another offence: (R v Crown Court at Peterborough ex parte L [2000] Crim L R 470).

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Bail Granted at Expiry of Custody Time Limit

If a CTL expires, the accused has an immediate right to bail under the provisions of the Bail Act 1976, as amended by Regulation 8 of the Regulations (Archbold 3-11). In such a situation, a court may impose conditional bail but cannot impose a requirement that an accused provide a surety or give a security to ensure surrender to custody.

[The entitlement to bail lasts only until the next stage of proceedings. For example, if the CTL expires prior to a committal and the defendant is granted bail, this does not prevent the magistrates' court from committing a defendant in custody upon committal. A new CTL period starts at committal (R v Sheffield JJ, ex parte Turner [1999] 1 All ER 858). [This will not apply when committals are abolished.]]

Note: Section 25 of the Criminal Justice and Public Order Act 1994 (no bail for defendants charged with homicide or rape after previous conviction of such offences) continues to have effect after the expiration of a defendant's CTL and the fact that the prosecution fails to make an application in time or has failed to satisfy the court that it has acted with all due diligence for the purposes of obtaining an extension of the CTL (see below) does not mean that the prosecution has failed to display "special diligence in the conduct of proceedings" such as to breach Article 5(3) of the Convention as the time covered by Article 5(3) of the Convention is different from that which is laid down for CTL (R (O) v Crown Court at Harrow [2003] EWHC 868 (Admin); [2003] 1 WLR 2756). So, even though the time limit has expired or the court refuses to extend the CTL, section 25 still applies and those defendants caught by this section may still be refused bail if the court considers that there are exceptional circumstances justifying it, (Stone's Justices' Manual: 1-3530). However, it would be wrong to rely on this exception in these difficult and serious cases and very special care will be needed to ensure timely applications are made. See also the above case at [2003] 4 Archbold News 3, DC for detailed discussion on the effect of considerations under Article 5(3).

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Applications to Extend Custody Time Limits

Applications to extend or further the CTL are governed by section 22(3) of the Act and Regulation 7 of the Regulations (Archbold 1-267, 3-64). An application for extension may be made orally or in writing though the Senior Presiding Judge expects that such applications will be properly pleaded in writing so that the length of oral applications will be shorter.

A CTL may be extended or further extended before its expiry if the following requirements are satisfied:

  • Notice has been served in accordance with Regulation 7 of the Regulations; and
  • The need for the extension is due to - 
    1. the illness or absence of the accused, a necessary witness, a judge or a magistrate;
    2. a postponement which is occasioned by the ordering by the court of separate trials in case of two or more accused persons, or two or more charges; or
    3. some other good and sufficient cause;
    4. and (in respect of any of the foregoing) the prosecution has acted with all due diligence and expedition.

Decisions on applications for extensions of CTL may be subject to judicial review, although the Divisional Court is only likely to interfere if the judge exercises her/his discretion unreasonably, (R v Crown Court at Preston ex parte Campbell [1999] Crown Office Digest 407; Archbold 1-272). The expedited procedure should be used in any such application for judicial review as, otherwise, the CTL may expire with the result that the proceedings will be purely academic.

Note: A form for an application to extend a CTL may be found on the CPS Infonet under Applications and should always be used. A case library is available within the document by virtue of hyperlinks through a CTL authorities button.

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General Principles

In the leading case of (R v Manchester Crown Court ex parte McDonald [1999] 1 Cr App R 409; Archbold 1-273), Lord Bingham CJ emphasised the presumption of liberty set out in Article 5(3) ECHR:

"Everyone arrested or detained [for trial] ... shall be entitled to trial within a reasonable time or to release pending trial."

With regard to the requirements in section 22(3) of the Act (Archbold 1-274), which the prosecution must satisfy before an extension can be granted, Lord Bingham CJ set out the following guidance:

  1. The prosecution must satisfy the court, on the balance of probabilities, that the requirements of section 22(3) of the Act are satisfied.
  2. The maximum time limits are a maximum not a target.
  3. The prosecution need not show that every stage of preparation of the case has been accomplished as quickly as possible and efficiently as humanely possible, nor should it be assumed that all involved on the prosecution side have been able to give the case in question their undivided attention. What is required is such diligence and expedition as would be shown by a competent prosecutor conscious of her/his duty to bring the case to trial as quickly, as reasonably and as fairly as possible. 
  4. In deciding whether that standard has been met, the court will consider the nature and complexity of the case, the preparation necessary, the conduct of the defence, the extent to which the prosecutor has been dependent on others outside their control and any other relevant factors.
  5. What amounts to good and sufficient cause is a matter for the court to determine on the facts of the particular case.
  6. Staff shortages and sickness will be inadequate reasons for extension. The unavailability of a judge or a courtroom may be good and sufficient cause, but such cases should be approached with "great caution". (Refer to Good and Sufficient Cause, below in this guidance.)
  7. The court should state the reasons for its decision.
  8. Once the court has heard full argument and made a decision, the Divisional Court would be most reluctant to disturb that decision on an application for judicial review.

Note: Adverse weather and other emergencies - hearings in chambers. Bad weather may make it impossible for prisoners to attend court at which there is to be a CTL application to extend. Other situations may arise where through no fault of the prosecution, the defendant is not present at court or it is not possible to use any kind of video link to the prison and the CTL is about to expire. Rule 19.2 (1) (c) of the Criminal Procedure Rules 2012 empowers a judge to hear applications to extend or further extend a CTL in chambers in the absence of the defendant. This is at the discretion of the judge but was successfully employed during the bad winter of 2010.

The rule states:

19.2. - (1) The court must not make a decision to which this Part applies unless -

(c) on a prosecutor's appeal against a grant of bail, application to extend a custody time limit or appeal against a refusal to extend such a time limit -

(i) the court is satisfied that a defendant who is absent has waived the right to attend, or
(ii) the court is satisfied that it would be just to proceed even though the defendant is absent.

In respect of the Human Rights Act, Article 6 has no direct application although Article 5 is clearly highly relevant. In (Wildman v Director of Public Prosecutions TLR 8 February 2001, Archbold 1-272), the Divisional Court held that the procedures for applying to extend the CTL could be more informal than a normal trial process and that it was unnecessary to comply with the formal rules of evidence.

Moreover, the Lord Chief Justice stated that although there is no formal need for full disclosure of all the evidence before such an application, it was to be hoped that the CPS would make information available to a defendant which would allow her/him to be satisfied as to the propriety of the application. Insofar as a defendant may wish to test any part of the application, the means must be provided to enable her/him to do that. The CPS manages this duty by supplying a full copy of the application to extend a CTL.

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Dealing With Pleas to Some Counts Only

Each charge has its own CTL and a plea to one count does not bring to an end the CTL on others. Pleas offered by a defendant with more than one count on an indictment to some counts may cause CTL difficulties with others being adjourned (no plea or denied) while reports are prepared for those which have been admitted. It is possible that during the period of the adjournment, the CTL for those not admitted may expire unless they are extended (preferably before the end of the adjournment hearing) if the defendant is to remain in custody on these matters in the meantime.

Where a defendant offers mixed pleas to the counts on an indictment, the prosecution must decide whether those pleas are acceptable. The advocate will need clear instructions as to what pleas are acceptable. Instructions on these should be included in the brief. Considerations will include the following: are the outstanding counts to be left on file or is no evidence to be offered? Is there a real possibility of these cases still proceeding to trial? Is the defendant likely to seek to withdraw his plea at the adjourned hearing? Do consultations need to take place with others before an indication that these cases are not to be proceeded with, e.g. victims? Is the public interest in continuing the cases immediately obvious or will it depend on the sentence the court might imposed on the matters admitted? These will be the type of factors to be considered and appropriate instructions given in anticipation or discussed with the prosecuting advocate. If application for an extension is to be made, this should be done before the end of the hearing at which the plea to some matters was tendered. Following the case of R v Dano Sonnex (Central Criminal Court, 4 June 2009), technical bail is no longer considered appropriate.

On the 11th September 2009, the then Senior Presiding Judge (Leveson LJ) wrote to all courts to explain the predicament faced by prosecutors (see Appendix B). This is extremely helpful. However, some courts have shown reluctance to extend a CTL where there is no prospect of outstanding matters ever going to trial. Where a firm indication is able to be given openly to the court (and noted on the case papers) that the intention is to ask that (a) count(s) lie on the file or that no evidence will be offered irrespective of any other consideration, there will be no need to extend the CTL on that or any outstanding matters even if the CTL expires before the case returns to court. If no evidence is offered or an order is made for the count(s) to lie on file at the adjournment hearing, this will bring the CTL to an end there and then. However, where, upon consideration of the above factors, no such indication is able to be given or decision made, an application to extend CTL will be necessary and this will need to be explained to the court.

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Notice to Extend - service

Regulation 7 of the Regulations (Archbold 3-64) provides that a notice to extend a CTL must be served on the Court and the accused or their representatives not less than:

  • 5 days before a hearing in the Crown Court; and
  • 2 days before a hearing in the magistrates' court.

Although not a requirement of Regulation 7 of the Regulations, it is now established good practice to provide the grounds for the applications in the notice (R v Central Criminal Court ex parte Marotta [1999] Crown Office Digest 13, Archbold 1-272). Indeed, the Senior Presiding Judge has requested that applications should be fully pleaded in the notice so as to reduce the amount of court time such hearings take.

Regulation 7(4) of the Regulations (Archbold 3-64) provides that the court may dispense with notice if it is satisfied that it was not practicable in all the circumstances for the prosecution to give notice within the time specified or allow a lesser period.

The requirement to give notice is directory not mandatory. It does not limit the court's power under section 22(3) of the Act to extend CTL at any time before it expires. In (R v Canterbury Prison, ex parte Craig [1990] 2 All E R 654) it was held that the court could extend the CTL despite the failure of the prosecution to show that in all the circumstances it has not been practicable to give notice within the time specified.

Accordingly, failure to serve the requisite notice will not in itself prove fatal to a substantive application. It may, however, be a factor in considering whether the prosecution has acted with all due diligence and expedition (refer to All Due Diligence and Expedition, below in this guidance). Every effort must therefore be made to ensure that the appropriate notice is given, as required by Regulation 7 of the Regulations.

Where a summary trial or section 6 (1) committal hearing is expected to go ahead, there is no requirement for the service of a notice in anticipation of the proceedings not so doing. The court has power to waive the requirement to give notice if it is satisfied that it has not been practicable in all the circumstances to serve notice under Regulation 7 (4) of the Regulations. The defence can also waive the requirement to be served notice (Regulation 7 (3)).

If, for any reason prior to the date of the hearing, it is known that the case will not reach the stage where the CTL would ordinarily cease (e.g. the trial starts), and that the next hearing is likely to be after the expiry of the CTL, notices should be served immediately and steps taken to ensure the case is listed in good time. If a case is listed as a floater or is double or treble listed in the magistrates' court, it will be good practice to have an application for extension prepared since the court may run out of time to hear the case. Care should be taken in these circumstances to ensure applications are nevertheless made where the time left to run on a CTL is critical.

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Where the defendant would be a HIGH RISK if released prematurely

There are certain defendants who will be a substantial risk to an individual or the public at large if released from custody prematurely. HMCPSI has recommended that in these types of situations, even where the case is expected to proceed, for example, the trial is expected to commence, an application to extend the CTL should nevertheless be prepared and served in case for some reason, the prosecution has to be adjourned. This is good practice and should be adopted in all cases where either there is intelligence or an assessment to suggest that an individual or the public may be at risk from such a defendant.

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Not leaving making applications too late

Difficulties can be caused by leaving the application to extend CTL too close to the expiry of the CTL. If one or two days only remain and the court refuse to extend the CTL and grants bail to the defendant, a re-arrest for breach of bail outside the area will mean that it is likely that a week will pass before the defendant is presented to his home court again by which time the CTL will have expired and the defendant will be entitled to bail. There is also some question of whether bail granted in such circumstances is bail granted at the expiry of the CTL. The courts have made different decisions in these circumstances and the position is unclear.

This can all be avoided if the application to extend is made at least two weeks before the expiry of the CTL. This will give sufficient time for defendants granted bail to be remanded back to an area if remanded in custody away from the court that originally granted bail. Areas involved in the handling of such cases must take urgent steps to inform the original Area by the fastest possible means. The most likely danger is such a defendant first appearing back on a Saturday or public holiday. Prosecutors need to be alert to such possible difficulties and make proactive enquiry.

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Continuing Duty of Review

As part of the continuing duty of review, prosecutors should consider whether the circumstances justifying the remand of the accused in custody still exist or whether bail, with or without conditions, would be more appropriate. A prosecutor will not withdraw objections to bail for a person subject to a CTL unless all apparent Bail Act risks have been fully considered and discussed with the police. Prior to withdrawing objections to bail, the prosecutor must note the reasons for this decision by means of a full endorsement on the case records. This endorsement should then be countersigned by the level D, E or CCP, as required under local arrangements. Prosecutors should then ensure that the matter is brought before the court at the earliest opportunity so that the defendant is not kept in custody any longer than is strictly necessary. A court order is required for a defendant's release. Great care should be exercised in making these judgements since it would be inappropriate to consent to the release of an offender who continues to present a substantial bail risk (refer to Bail Granted Prior to Expiry of a CTL, below in this guidance).

Occasionally, a Court may determine that the prosecution has not acted with the necessary due diligence or expedition and refuse to extend a CTL. This is a failure that must be reported (refer below to Failures in the Custody Time Limit System). For a person properly remanded in custody who presents a substantial and continuing bail risk, a prosecution appreciation that a court would be unlikely to extend a CTL because of a lack of diligence or expedition is not to constitute grounds for the withdrawal of objections to bail. Application must be made to the court for an extension where the seriousness of the offence and the risk posed by the defendant would make it inappropriate to concede bail. In these circumstances, this will be a matter for the Court to determine. A thorough knowledge of the law and casework decisions outlined in the section below (refer to All Due Diligence and Expedition, below in this guidance) will provide considerable assistance when making an application to extend a CTL.

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"Good and Sufficient Cause" - definition

Neither the Act nor the Regulations define what is meant by the phrase "good and sufficient cause" so each case will be determined on its merits. However, the following principles have emerged from case law (Archbold 1-274 and 1-275):

  • The seriousness of the charge will not, in itself, amount to a good and sufficient cause. The more serious the charge, the more important it is that the prosecution get on with preparing the case (R v Governor of Winchester Prison ex parte Roddie [1991] 2 All ER 931).
  • Matters relevant to the grant or refusal of bail cannot, of themselves, amount to a good and sufficient cause for extending a CTL: (R v Crown Court at Sheffield, ex parte Headley [2000] Crim L R 374). However, if a judge is satisfied that there is, otherwise, a good and sufficient cause to extend he may, in the exercise of his discretion, take account of matters which would be relevant to the grant or refusal of bail (R v Crown Court at Manchester in Minshull Street, ex parte S, 23 August 1999, unreported).
  • Delay caused by lack of resources available to the prosecution, which includes the police, will not amount to a good and sufficient cause (R v Crown Court at Birmingham, ex parte Ricketts [1990] Crim L R 745).
  • Delay by the Forensic Science Provider (FSP) is not a failure by the prosecution to act with all due expedition, but the prosecution must do everything possible to ensure that the evidence is available on time and this will include making the relevant laboratory aware of relevant court dates and time limits (R v Central Criminal Court, ex parte Johnson [1999] 2 Cr App R 51; Archbold 2002, 1-275). The Protocol for the Supply of Forensic Science Services to the Police and the Crown Prosecution Service provides that the Forensic Science Provider (FSP) will use the fast track procedure where a defendant is in custody. The prosecution must, as part of that Protocol, inform the FSP through the police of any relevant CTL expiry date. The police need to ensure that they dispatch items for examination at the earliest possible opportunity. Delay would be indicative of a prosecution not acting with all due diligence and expedition. Details of agreed actions and a timetable for receipt of a report from a laboratory should be included on the MG3 at the time of making a charging decision. The police must be asked to update the CPS on any barriers to the speedy notification of these results. Please ensure that the CTL extension application, informs the court about the efforts made to ensure that the FSP has been told about the urgency of the case and explain any delay. It is important that this is covered in the application. Advocates are duty bound to ensure that they have all the necessary information and any apparent gaps must be the subject of an enquiry before the hearing.
  • Findings of lack of due diligence and expedition too often arise through late service of forensic evidence. Any forensic or scientific evidence which helps to establish the prosecution's case inevitably causes a defence application for time to commission their own expert. Where the forensic evidence is served late, the court will usually find that the prosecution has not acted with the necessary diligence etc. Accordingly, reasonable time for the defence to commission an expert must be factored into the planning for the delivery of this evidence. Firm arrangements must be made as early as possible for the defence expert to have access to the material. Early notification to the defence that forensic evidence is expected to be served will alert the defence to the necessity of getting the preliminary authorisation to instruct an expert and will demonstrate a diligent approach to the court. Early warning to the court that difficulties are being experienced will enable them to reconsider at an early stage an alternative trial date: leaving such warning to the last moment will not be met with much sympathy.
  • The complexity of a case may be a good and sufficient cause, and in complex cases it is better practice to apply for a CTL extension at an early stage rather than preferring further charges (R v Leicester Crown Court, ex parte Pravin Patel, unreported 15/2/2000 'Casetrack').
  • The shortness of the extension sought cannot, on its own, amount to a good and sufficient cause: (R v Crown Court at Sheffield, ex parte Headley [2000] Crim L R 374).
  • The protection of the public is not, in itself, a good and sufficient cause to extend a CTL: (R v Central Criminal Court, ex parte Abu-Wardeh [1997] 1 WLR 1083). However, the protection of a witness in conjunction with other factors may amount to good and sufficient cause (R v Birmingham Crown Court, ex parte Bell and others The Times, 28 March 1997).
  • In R v Leeds Crown Court, ex parte Redfearn [1998] COD 437, DC, it was held that the non-attendance of a crucial prosecution witness who had moved address several times before a trial was capable of amounting to good and sufficient cause as the prosecution could not be expected to act as nursemaid to all prosecution witnesses between committal and trial, and it was inappropriate for the Divisional Court, exercising its supervisory jurisdiction, to go into the detail of the causes of mishap which sometimes occurred when prosecution witnesses changed their addresses.
  • The fact that there is no judge or courtroom available in which a case may be tried can, in appropriate circumstances, amount to a good and sufficient cause (R v Crown Court at Norwich, ex parte Cox [1993] 97 Cr. App R 145) and (R v Crown Court at Leeds, ex parte Wilson [1999] Crim L R 738). If making an application to extend on this basis, prosecutors will need to be aware of and follow the guidance given by the Divisional Court in the case of (R v Crown Court at Worcester, ex parte Norman 164 JP 201):
    1. there is a joint duty on the prosecution and the court to make early arrangements for the fixing of a trial date within the CTL;
    2. ideally, the trial date should be fixed at the PCMH, with the directions then being tailored to the date that has been fixed;
    3. if it is not possible to fix the trial date at the PCMH, the court should direct that the date be fixed before the expiry of the CTL and that the matter should be re-listed in the event that this proves impossible;
    4. if it proves impossible to fix the trial date within the CTL, an application to extend should be made sooner rather than later, thereby enhancing the prospect of a date being fixed as soon as possible after the expiry of the CTL;
    5. if the court fails to take the initiative, it is for the prosecution to press for a date within the CTL, the duty on the defence being to provide the names of witnesses required so that their availability can be ascertained.
  • See also the case of Kalonji v Wood Green Crown Court [2008] A.C.D.36 (11) DC: R (Gibson and another) v Crown Court at Winchester (CPS and another intervening) [2004] EWHC 361 (Admin), which provided (per Lord Woolf C.J. at [31]) a pragmatic and helpful approach to the difficult question that has to be answered by judges in the Crown Court when deciding whether to extend custody time limits, (i) where there are real pressures on a court which have been created by exceptional circumstances, the court should be careful to examine what the reason is and the proposed solution to it; it should then make a judgment as to whether or not it can properly be said that (a) the reason is one which is exceptional and (b) the steps that are proposed to alleviate it appear to have a prospect of success; if it can, then there may be a good and sufficient cause for an extension within the meaning of section 22(3)(a)(iii) of the Prosecution of Offences Act 1985 (Archbold, 1-267); but (ii) if the delays which are being experienced by a court are not being alleviated by any steps that are being taken, the judge may be forced to conclude that there is a systemic failure to be able to provide for trials within the custody time limits, such that the position is analogous to that in R (Bannister) v Crown Court at Guildford and CPS, unreported, January 29, 2004, D.C. (CLW/04/07/2), where it was said (per May L.J. at [21] et seq.) that, if there is such a systemic failure, then listing difficulties in a routine case are not a good and sufficient cause for an extension.

A trial date after the expiry of the CTL should not be fixed at a PCMH without a full enquiry as to whether or not it was possible to fix an earlier date and the onus is on the prosecution to satisfy the judge that an earlier date was not possible. This requires pro-activity on behalf of the CPS with the court (R v Crown Court at Preston, ex parte Barraclough [1999] Crim L R 973).

The reasonable requirements of the defence to consider committal papers may amount to a good and sufficient cause, although each case will turn on its own facts and late service is unlikely to enhance this argument (White v DPP [1989] Crim L R 375).The convenience of counsel for a defendant was not a good and sufficient cause (R (Lake and Bennett) v Northampton Crown Court [2003] 3 Archbold News 2)

All the above cases must now be read in the light of McAuley and Raeside below.

Routine cases must be listed within the CTL. A trial of two weeks is well within the ambit of the normal work of any circuit judge. A thorough search must be made of neighbouring regions to list a case. The court must take the initiative where the difficulty is in finding a courtroom or a judge to hear the case and must provide the CPS with evidence of the attempts to list the case where it has not been possible to list within the CTL so that this can be served on the defence and scrutinised by the court. Listing of a case which requires a High Court Judge or a specially approved judge may provide good and sufficient cause to hold a trial outside the initial time limit (See R v Luton Crown Court, ex parte Raeside [2012] EWHC 1064 (Admin) and R v Coventry Crown Court, ex parte McAuley [2012] EWHC 680 (Admin)).

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All Due Diligence and Expedition - definition

It is important to remember that the court is first required to consider whether there is good and sufficient cause to grant an application to extend a CTL. Only then, when this is established, will the question of due diligence and expedition of the prosecution arise. Prosecutors will need to ensure that the court articulates its findings clearly so that the inability of the court to fix a trial within the CTL is not confused with whether or not the prosecution has acted with due diligence and expedition.

Neither the Act nor the Regulations define what is meant by the phrase "all due diligence and expedition" so each case will be determined on its own merits. The word "diligence" was added by the Crime and Disorder Act 1998, but the previous case law on "due expedition" will still be relevant to consideration of what is meant by "all due diligence and expedition" (Archbold 1-275). The following principles have emerged from case law:

  • An objective test applies: What the court requires is such diligence and expedition as would be shown by a competent prosecutor conscious of his duty to bring the case to trial as quickly as reasonably and fairly possible. (R v Manchester Crown Court ex parte McDonald [1999] 1 Cr App R 409; Archbold 1-273).
  • "The question under section 22(3) (b) of the 1985 Act is whether the prosecution has acted with all due expedition with respect to the period to which the custody time limit relates. Delays in arrest and charge are quite immaterial to that question." R v Ipswich Crown Court ex p the CPS [2010] EWHC 1515 (Admin). Noted: this does not mean a judge will ignore delay while the police investigate a possible co-defendant and that case is processed with a view to joinder. Delay is relevant only for the exercise of a judge's discretion to grant bail. It does not mean that the prosecution will have failed to expeditiously deal with the defendant for whom an extension is being sought. Nevertheless, investigation of co-defendants and their subsequent case progression must be prioritised and the CPS should oversee such cases ensuring minimum time is taken.
  • In determining whether the prosecution has acted with all due diligence and expedition, the court will apply an objective standard. It will not be sufficient for the prosecution (which includes the police) to say that they have done their best in difficult circumstances (R v Governor of Winchester Prison, ex parte Roddie [1991] 2 All ER 931).
  • The prosecution is not required to act as though the case in question were the only task in hand but must act with the diligence and expedition appropriate to the circumstances of the case (R v Crown court at Norwich, ex parte Parker [1992] 96 Cr App R 68).
  • The duty on the prosecution, in a case to be committed to the Crown Court, is not confined to the service of committal papers to allow the possibility of an uncontested committal within the CTL. All due diligence and expedition has to be directed towards achieving a contested committal within the CTL (R v Crown Court at Leeds, ex parte Briggs (No. 2) [1998] 2 Cr App R 424).
  • In considering whether the prosecution has acted with all due diligence and expedition, the court should consider the matter by reference to the presence or absence of all due diligence and expedition at the stage to which the CTL relates. Lack of diligence or expedition at some earlier stage need not be taken into account, although there may be factual situations where it will be necessary to look at past history (R v Crown Court at Birmingham, ex parte Bell & ors [1997] 2 Cr. App R 363).
  • The requirement that the prosecution act with all due diligence and expedition is not disciplinary in intention. Therefore, if the court is satisfied that there is good and sufficient cause to extend the CTL but is not satisfied that the prosecution has acted with all due diligence and expedition, it is not obliged to refuse the application to extend if it concludes that the failure of the prosecution has neither caused nor contributed to the need for the extension (R v Crown Court at Leeds, ex parte Bagoutie TLR 31 May 1999).
  • Where an application to extend is contested and there is an issue as to whether the prosecution has acted with all due diligence and expedition, the court should be given a detailed chronology (preferably agreed) setting out the dates of all material events and orders of the court. The court, in ruling on such an application, should give reasons, which need not be long or elaborate (R v Crown Court at Chelmsford, ex parte Mills TLR 31 May 1999).
  • Delay by the prosecution in doing something that they were not obliged to do is irrelevant (R v Southwark Crown Court, ex parte DPP [1999] Crim LR 394 DC).
  • A full chronology must be served with the notice in all cases unless prior notice is received that the application is not resisted. A good chronology may serve to persuade the defence not to contest the application and, in any event, many District Judges [and all CC judges] expect a chronology in order to satisfy themselves of the prosecution's due diligence.

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Appeals against Extension or Non-Extension of CTL

Appeals against the extension or non-extension of CTL in the magistrates' court are governed by sections 22(7) and (8) of the Act (Archbold 1-267). The procedure to be followed is set out in Rule 20.1 of the Criminal Procedure Rules.

Section 22(9) of the Act (Archbold 1-267) provides that an appeal by a prosecutor against a refusal to extend a CTL must be made prior to the expiry of the CTL. Once the appeal is lodged, the CTL is deemed not to have expired until the appeal is decided or abandoned even if this is after the expiry of the original CTL.

An appeal is lodged when notice in writing is served on the Clerk to the Justices, the accused, and the appropriate officer of the Crown Court. The notice must state the date on which the CTL is due to expire. This means that an appeal made on the last day of the CTL [Note: This is not good practice] will prevent the CTL expiring ('deemed not to have expired') even though the hearing in the Crown Court would take place after the expiry in fact.

If a judge refuses an application to extend a CTL but does so on the basis of a fundamental error of fact, the appropriate procedure is to re-apply to the judge under section 22(3) of the Act (Archbold 1-267 and 1-272c) or, if unavailable, to the senior judge at the court centre. Subject to this exception, a fresh application would be likely to amount to an abuse of process (R v Crown Court at Bradford, ex parte Crossling; R v Crown Court at Teeside, ex parte CPS 163 JP 821).

A form for the appeal notice is included in CMS.

Further, see the note about section 25 Criminal Justice and Public Order Act 1994 above concerning the failure to satisfy the court on due diligence and expedition grounds in the case of serious repeat offenders.

Where a prosecution appeal to the Crown Court against the grant of bail by the magistrates' court is successful, the judge must (unless the accused was committed for trial at the same time as the grant of bail) remand the accused back to the magistrates' court to a specific date in accordance with sections 128, 128A and 129 Magistrates' Courts Act 1980; i.e. a period of remand in custody which does not exceed 8 days from when the accused last appeared before the magistrates or, possibly, 28 days if section 128A of the 1980 Act is applied (Archbold 3-154).

It is the responsibility of the prosecution to invite the judge to specify the relevant date (R v Crown Court at Manchester, ex parte Szakal [2000] 1 Cr App R 248). It seems that the CTL time in custody pending the appeal continues to run but will not expire. Prosecutors need to be alert to the danger of a CTL expiring during the remand back to the magistrates' court and take necessary action for an application for an extension to be made.

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Bail Granted prior to expiry of a CTL

In the case of a Crown Court CTL, where the prosecution do not intend to seek an extension under Regulation 7 of the Regulations, Regulation 6 of the Regulations provides that (Archbold 3-61):

  • The prosecution must give notice, not less than 5 days before the expiry of the CTL, to the Crown Court and the accused stating whether they intend to seek conditional bail in the case of an accused whose CTL is about to expire.
  • If the prosecution seeks conditional bail in such a notice, the defence must give either:
    • Written notice of a wish to be represented at the hearing of the application; or
    • Written notice that the accused does not object to the proposed conditions; or
    • A written statement of the accused's reasons for objecting.
  • It is the prosecution's duty to arrange for the accused to be brought before the Crown Court within the 2 days preceding the CTL expiry.

In the case of magistrates' court CTL, the Regulations do not expressly deal with the procedure for bailing an accused in the circumstances covered by Regulation 6 of the Regulations. If conditional bail is considered appropriate, prosecutors should ensure that the matter is brought before the court at the earliest opportunity, so that the accused is not kept in custody any longer than is strictly necessary.

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Bail Granted shortly before expiry of a CTL

Bail in the Crown Court is sometimes granted when there are only a few days left before a CTL is due to expire. This can cause difficulties for the CJS in the event of any subsequent breach of conditions because after arrest, the defendant must be brought before a magistrates' court, not the Crown Court. Effectively, this can mean that from the date of the remand in custody in the magistrates' court the CTL will be likely to have expired before the defendant can appear in front of the Crown Court. If this happens then the defendant will have to be released no matter how bad the breach.

To avoid this arising, these difficulties should be explained to the judge when bail is being considered. The court should be invited to consider using Regulation 6 so that the defendant is released but only when the CTL has expired. This procedure has a distinct advantage: if a defendant is released on bail after the expiry of a CTL any future arrest following a breach of bail will enable the court to remand the defendant in custody without that remand being subject to any further CTL. In this situation, any future remand becomes subject to the discretion of the court (see section 22 (5) (b)). This process has been successfully used to avoid defendants being able to avoid the normal consequences of breaching bail.

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Failures in the CTL System

A CTL failure occurs when:

For whatever reason, no valid application is made to extend the CTL before its expiry date; or

  1. When a court refuses to extend a CTL on the grounds that the prosecution has not acted with the necessary due diligence and expedition (except if an appeal overturns this ruling).

In either case, unless in custody on other matters, the defendant must be admitted to bail.

A CTL failure includes a case where a defendant, despite the failure, remains in custody on another charge or charges.

Note: A CTL failure usually manifests itself where there has been an error on the part of the CPS and an application to extend a CTL is not made or cannot be made because the CTL has expired. Examples of errors leading to failures are a miscalculation of the time limit, especially where a defendant has at some time been in custody, released on bail and later re-arrested; an erroneous endorsement; a failure to enter the necessary information in the monitoring system or entering the wrong CTL start date; a failure to consider, at the appropriate time, the need to apply to extend a CTL.

There is no failure in a case where an application to extend a CTL is properly made, but the court deemed that it was appropriate, notwithstanding a proper application was made on time by a diligent and expeditious prosecution, to grant bail.

If an expired CTL is discovered by the CPS out of court, the court should be informed immediately. A court order is required to release the defendant.

If it is thought that Section 25 of the Criminal Justice and Public Order Act 1994 applies (see note above) the production of the person at court as soon as possible should be requested for the matter of bail to be considered.

Should a failure lead to the release of a person from custody (i.e. that person is not retained in custody for any other reason) the lawyer responsible or the relevant manager should inform the District Crown Prosecutor and the DCP inform the Chief Crown Prosecutor as soon as possible and as a matter of urgency.

The District Crown Prosecutor or Chief Crown Prosecutor should make immediate arrangements for the officer in the case or the relevant crime manager for the police force concerned to be informed so that appropriate arrangements can be made to safeguard any person likely to be affected or at risk because of the release.

The Witness Care Unit should be informed at the same time.

For any failure, the Chief Crown Prosecutor should prepare a full report for the Director of Public Prosecutions. The report must include a full explanation with identification of the Court and Crown Court judge (where appropriate), a detailed chronology of events and identify action taken to deal with the causes of the failure and any failure in supervision and the steps taken to prevent any recurrence. Any risk to the public or an individual arising from the release should also be included and what steps have been taken to minimise that risk.

The report should initially be sent, with a copy of the application to extend where one was filed at court to David Evans at CPS HQ, London by e mail to david.evans@cps.gsi.gov.uk. Copies of CTL failure reports will then be forwarded to the Director and Chief Operating Officer for their consideration and to the Management Information Branch, Delivery and Performance Division for statistical recording.

Where there is a failure in performance by Counsel, the Director will expect to hear what steps have been taken with Counsel and his/her chambers to determine the reasons for any resulting CTL failure and the appropriate steps taken by the Area to ensure there will be no repetition.

Note: The raising of the CTL instructions with the Joint Advocate Selection Committee to reinforce the importance of Counsel's obligations in relation to the prosecution's obligations will also act to raise the profile of this important task. To assist advocates, a copy of Guidance in Handling Cases with CTL is attached at Appendix D.

CTL performance and failures will be considered at the Area Performance Review.

Where it is considered that the CPS was not to blame for the failure, the CCP will be notified and a copy of the correspondence forward to HMCPSI.

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National Standard

A National Standard, agreed with HMCPSI and approved by the Director of Public Prosecutions is attached at Appendix C. This sets out the required standard to give effect to this legal guidance in all Areas.

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Appendices

Appendix A: Protocol for the effective handling of Custody Time limits cases in the Magistrates' and Crown Court

Appendix B: Applications to Extend Custody Time Limits (letter from the Senior Presiding Judge, dated 18 December 2009)

Appendix C: CPS Custody Time Limits - National Standard for the Effective Management of Prosecution Cases involving Custoy Time Limits

Appendix D: Handling Cases with Custody Time Limits - A Guide for Advocates Representing the Prosecution

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