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Custody Time Limits

Principle

Custody Time Limits (CTL) safeguard unconvicted defendants by preventing them from being held in pre-trial custody for an excessive period of time. The Act and Regulations governing CTL require the prosecution to progresses cases to trial diligently and expeditiously.

The legal burden of monitoring and complying with CTLs rests on the prosecution. The Protocol between the CPS and HM Courts and Tribunal Service (HMCTS) for the effective handling of CTL cases helps reduce monitoring errors and ensures cases are finalised before CTL expiry dates.

The diligent and expeditious handling of CTL cases is a corporate priority for the CPS.

The National Standard for the effective management of prosecuting CTL cases was approved by the Director of Public Prosecutions in February 2013 and revised in January 2017. A copy of the National Standard is attached at Appendix C. This Protocol incorporates references to the Lord Chief Justice's Practice Direction on Listing. Prosecutors should be familiar with it: it may assist with arguments in support of a CTL extension. HMCTS HQ has assured the CPS that copies have been circulated to every member of the judiciary.

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Custody Time Limits - the legal framework

The law concerning custody time limits is to be found at:

The Act and Regulations apply to the preliminary stages of criminal proceedings (s.22(11) of the Act).

Note: Section 22 contains many references to Overall Time Limits which were piloted but not implemented after evaluation. Care should be taken not to apply those parts of s.22 to CTLs: namely s.22(4), s.22(6), and s.22(6A) and references to directions under 6A. The whole of s.22A and s.22B may also be disregarded.

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The Commencement of a CTL

CTLs apply to each and every charge and not the offender. Each charge attracts its own CTL (see R v Wirral District Magistrates Court, ex parte Meikle [1990] Crim L R 801) and Archbold 1-347.

A CTL begins the day after the court appearance when the defendant was first remanded (Regulation 2(2)). The CTL Calculator and CTL Ready Reckoner take account of this in their calculations.

Note: Remember that this discount only applies to the first remand.

Where a defendant is granted bail following a remand in custody, the day of the court hearing (the last day in custody) before release is counted as a whole day when calculating the CTL expiry date, regardless of the time of the hearing (e.g. even if the case is first in the list).

Where a defendant who was granted bail is subsequently re-remanded, the day when she/he is remanded is counted when re-calculating the CTL expiry date; this is because the day of the re-remand is not the initial remand after charge.

The CTL will continue to run during any period when a defendant is also serving a custodial sentence for another offence (R v Peterborough Crown Court, ex p. L. [2000] Crim L R 470, DC].

The CTL Regulations apply to summary only offences and either way offences to be tried in the magistrates' court; also to indictable offences sent to the Crown Court (indictable only and either way), to voluntary bills and to fresh indictments following an order for a retrial made by the Court of Appeal (see below).

  • Summary only Offences - the time limit is 56 days, unless extended by a court. CTL for summary only offences are not monitored in the Crown Court. The CTL regulations apply to indictable offences sent to the Crown Court (indictable only and either way), to voluntary bills and to fresh indictments following an order for a retrial made by the Court of Appeal (see below). Prosecutors should note this is an extremely short time limit to get the police to prepare and dispatch a case to the CPS and for the CPS to review and prepare it for service to the defence. These cases must be progressed with particular urgency.
  • Either way Offences - is monitored as 56 days. Although the Regulations provide that the time limit is 70 days, but 56 days if allocation is dealt with before the end of the 56th day is reached, the CPS treats all either way offences as having an initial 56 day time limit in the magistrates' court; this has been shown to avoid failures. This period becomes 70 days if for any (highly unlikely) reason, the court does not move to summary trial before the end of the 56 day period. As under the Transforming Summary Justice initiative, the court is likely to deal with allocation at the first hearing, currently the only possible occasion when a 70 day CTL might arise would be for consent to prosecution being sought from the Attorney General (but even then in custody cases, consent is usually obtained quite quickly).

    The CTL for either way offences becomes 182 days if and when:
    • The court allocates a case for Crown Court trial (less any time the defendant has spent in custody of the magistrates' court prior to sending).
    • The defendant elects a Crown Court trial and the offence is sent (less any time the defendant has spent in custody of the magistrates' court in relation to that offence).
  • Indictable only Offences - the time limit is 182 days from the date a case is sent under s.51 Crime and Disorder Act 1998, less any time spent in custody (if remanded by the magistrates' court) prior to sending (Regulation 5 (6B)). This time limit also applied to either way charges sent together with (or subsequently) any indictable only offences.
  • Voluntary Bills of Indictment - if the prosecution is granted a Bill of Indictment under section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 by a High Court Judge, the CTL will (exceptionally) be 112 days from the preferment of the Bill (delivery to the court). The date of delivery must be carefully noted on the file/CMS. A column in the CTL calculator has been provided to assist determining the expiry date. Note - the only other occasion when the CTL will be 112 days is following an order by the Court of Appeal for a retrial on a fresh indictment (see below under Prosecution Appeals and Retrials).

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Cessation of a Custody Time Limit

A CTL ends at midnight on the day of the expiry date (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 ending on the next earlier normal working day (Regulation 2(5)).

Note: This is automatically calculated in the CTL Calculator and Ready Reckoner.

A CTL will cease to apply to a charge/count in the following scenarios:

  • An accused is granted bail and released from custody in relation to that offence: any remaining balance of the CTL is suspended and remains so as long as the defendant remains on bail.
  • A guilty plea is entered and accepted by the prosecution and court. (If a guilty plea is not accepted the CTL continues - e.g. a guilty plea to manslaughter instead of murder, but this is not accepted).

    Note: Where a defendant is later allowed to vacate a guilty plea, no CTL re-starts. But any trial further preparation must be conducted with all due diligence and expedition to avoid further delay. When committal proceedings were used to send cases to the Crown Court, if a time limit expired during an aborted or adjourned hearing, the prosecution did not need an extension in the time limit to keep the defendant in custody: R v Governor of Winson Green Prison ex parte Trotter 94 Cr App R 29 DC. The position cannot be distinguished from the situation where a trial on indictment has commenced and the relevant CTL has stopped, but subsequently, the jury have been discharged and a retrial ordered. However, in such a case, the judge should be vigilant to protect the interests of the defendant by fixing a speedy retrial or considering a grant of bail or even a stay of the proceeding: R v Leeds Crown Court, ex parte Whitehead 164 JP 102 DC.
  • A guilty plea has been entered, but the basis of plea is not accepted and the case is adjourned for a Newton Hearing to determine the facts and basis of sentence.
  • At arraignment, a guilty plea is entered to an acceptable alternative offence, for which the person could have been convicted at trial on the original indictment. There has effectively been an acquittal of the denied matter and CTLs cease on that offence (s.6 (5) Criminal Law Act 1967).

    Note: The guilty plea must be to an alternative offence to that which appeared on the original indictment. For example, GBH with intent instead of attempted murder, GBH for GBH with intent.
  • The start of a summary trial in the magistrates' or youth court. A summary trial starts when:
    • The court accepts a guilty plea, or
    • The court begins to hear prosecution evidence (either at trial or to consider whether to make a hospital order under s.37 (3) Mental Health Act 1983, (see s.22 (11B) of the Act).
  • The start of a Crown Court trial. A trial on indictment begins when:
    • The court accepts a guilty plea, or
    • When a jury is sworn

      Note: It used to be the case that this included the swearing of a jury to consider the issue of guilt or responsibility for the act/omission charged (under the Criminal Procedures (Insanity) Act 1964, but now, following an amendment by s.22 of the Domestic Violence , Crime and Victims Act 2004, the judge makes this finding before a jury is sworn. Whether this finding by the judge ends the CTL is uncertain as the Act made no amendment which may have been an error. The judge should therefore be asked if the CTL has stopped: it not, it will have to be monitored until a jury is sworn.
  • An offence is discontinued or no evidence is offered.
  • A count is ordered to lie on file.
  • At the point when any summary offence is sent to the Crown Court.

    Note: When an offence is "remitted back" to the magistrates' court from the Crown Court, the Regulations make no provision for any CTL to apply in these circumstances.
  • A trial begins with the start of a preparatory hearing in relation to a serious or complex fraud under s.8 Criminal Justice Act 1987, or for lengthy, serious or complex cases under Part 3 of the Criminal Procedure and Investigations Act 1996, or in terrorism related cases.

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Disregarding Custody Time Limits

Pursuant to s.22 (5) of the Act [Archbold 1-342]

A CTL will be disregarded (i.e. no CTL will run) in the following situations:

  • The defendant was released on bail following the expiry of a CTL and subsequently, either fails to surrender to that bail or is arrested for breach or likely breach of bail under s.7(3) Bail Act 1976; or
  • The defendant escapes from custody before the expiry of the CTL and is then rearrested (s.22 (5) of the Act).

CTLs run from the date of the first court appearance. If a defendant is charged but escapes before being remanded by a magistrates' court, no CTL will have started. The CTL will begin once the person is arrested and remanded by a court. Any further offences (e.g. escape from lawful custody) will attract their own CTL.

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Calculating CTL Expiry Dates

CTL expiry dates are to be determined using the CTL calculator (paragraph 3.1 of the National Standard 2017). Where a defendant is granted bail and later re-remanded, the calculator is to be used to recalculate the amended CTL expiry date.

A CTL ready reckoner is still currently produced but this can only be used for calculating the CTL for the first remand into custody.

The CTL calculator can be found on the CPS website. A new version is produced every year in December to take account of public holidays and weekends for the following year. The old version must be removed from all computers and web sites to avoid errors. A word document can be generated from the calculator and saved on CMS as an audit trail. The calculator also produces review dates for each case. CMS also indicates a CTL expiry date which must be checked with that of the calculator.

Note: The calculator removes the first remand day and makes all further adjustments for further remands required under the following examples.

Worked examples using the CTL calculator

Example A

A defendant is remanded in custody on 2nd January 2017 at the magistrates' court for an either way offence - the 56 days limit is applied. The CTL expires on the 27th February 2017.

The defendant is granted bail on 6th January 2017 and the CTL is suspended. The first remand day is discounted; although only in custody for part of the 6th January, it is counted as a whole day in custody. Therefore 4 days must be subtracted from 56, leaving 52 days left.

Subsequently however, the defendant is re-remanded into custody on 9th January 2017 for breach of bail conditions. CTL monitoring is resumed and the CTL will now expire on 1st March 2017.

The defendant is again granted bail on 16th January2017. (Note: He has on this occasion been in custody a further 8 days, counting the first day of remand (9th January) and the last (16th January) as whole days in custody, leaving a balance of 44 days (i.e. 56 less 12 days)).

Following another breach of bail, the defendant is re-remanded into custody on 23rd January 2017. The CTL now expires on 7th March 2017. However, the case is allocated to the Crown Court on 23rd January. A 182 day CTL now applies, less the time in custody of the magistrates' court. The days in custody are the previous 12 and the day of the remand on 23rd January. (Note: As it is not the initial remand, it is counted.) Therefore a total of 13 days are subtracted from the 182 (leaving 169 days). The CTL now expires on 11th July 2017.

Example B

A defendant appears before the magistrates' court on 2nd January 2017 charged with rape. The offence is sent to the Crown Court on that day. The CTL is 182 days from 2nd January, namely 3rd July 2017.

Example C

A defendant appears before the magistrates' court on 2nd January 2017 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 indictable only (182 day) CTL applies and starts on 2nd January 2017 (remember, it is counted from the 3rd as the first day is discounted which the calculator does automatically for you). On 9th January, he is sent to the Crown Court. The CTL is 182 days from 2nd January: i.e. 3rd July 2017. The time in custody in the magistrates' court is taken into account and subtracted. The easiest way to calculate this date is to calculate the 182 days from the date of the first remand.

Example D

A defendant appears before the magistrates' court on 2nd January 2017 charged with armed robbery. The magistrates send him to the Crown Court on that day. The (182 day) CTL expiry date is 3rd July 2017.

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 same day. The CTL expiry date for that defendant is 26th July 2017. A further co-defendant appears in court on 4th February 2017. His CTL expiry date is 4th August 2017.

A further robbery charge is added against all defendants and an ABH is laid against one defendant. The robbery charge against all defendants  is preferred on the 1st March 2017 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 therefore 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 also has a 182 day CTL and has the same expiry date as the other offences to which it relates (Regulation 5(6D)).

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Young Offenders

CTLs apply to young offences remanded in custody and those remanded to local authority accommodation under s.23 Children and Young Persons Act 1969 (s.22 (11) of the Act, R v Stratford Youth Court, ex p. S. (a Minor) [1998] 1 W.L.R. 1758 and Archbold 3-81).

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.

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

  • Summary only Offences - 56 days from the first remand date to the start of the summary trial.
  • Either way Offences - where the court is not required to determine venue - 56 days.
  • Either way Offences (and those which are indictable only for adults) - where a determination is made that the offence(s) is suitable to be heard in the Youth Court - 56 days.
  • Either way Offences (and those which are indictable only offences for adults) - where the Youth Court sends the offence(s) to the Crown Court under s.51A Crime and Disorder Act 1998 - 182 days from the date of sending, less any time already spent in the custody of the Youth Court.
  • Homicide and for 16 and 17 year olds a firearms offence under s.51 A (1) Firearms Act 1968. Also s.29 (3) Violent Crime Reduction Act 2006 where the prohibited weapon would attract the mandatory sentence - 182 days.
  • In the unlikely event that no plea has been entered or no allocation decision has been made within 56 days, technically a 70 day CTL period is applicable. However, out of an abundance of caution, as in the case of adult offenders, it is recommended that a 56 day time limit is to be monitored in the first instance. It is highly unlikely that a decision will not have been made within this period.

Note: The provisions in s.22 and s.22A and s.22B which refer to 'overall time limits' are not in force (see Archbold 1-346). Overall time limits were piloted for youth cases but were revoked - see above for further details.

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. A month later, the victim dies; there is a causal medical link between the death and the robbery. The youth is charged with manslaughter. The robbery offence is withdrawn. The court remands the youth in custody. The CTL for the manslaughter is 182 days from the date of sending without deduction (the time spent remanded for the robbery is ignored) because the defendant was not previously remanded for the manslaughter offence, only for the robbery (Regulation 5(6D) and 5(6B)). Any disadvantage to the youth can be taken in to account in sentencing and calculation of release dates.

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 offence becomes indictable only - by virtue of paragraph 28, Schedule 1 of the Magistrates' Courts Act 1980. The CTL is 56 days. At the next hearing, the court determined that the case should be sent to the Crown Court. The CTL will be 182 days from the date of the sending, 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.

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Adding and amending charges when a CTL applies

[Archbold 1-347]

As a general rule, when a new charge is laid a new CTL relating to that offence will begin.

A new CTL will not begin if the charge is merely amended, or if the new offence is a restatement of the old charge with different particulars. The new offence must be a different offence in law to attract a fresh CTL.

However, where an either way or indictable only offence is added to an indictment, and that offence was not sent for trial with the original offence, the CTL for the new offence will be 182 days, but less the total time the defendant has spent in custody for the original offence sent. The result is that the new CTL expiry date will be the same as that for the offence originally sent. (Regulations 5(6B) - 5(6D)).

The adding or substitution of new offences may raise an abuse of process issue or be used to suggest the prosecution has not acted with all due diligence and expedition when applying to extend a CTL. A prosecutor must be able to justify the timing and evidential reasons for the preferment of a new charge.

A court will consider whether the new charge was brought solely for the purpose of substituting a new CTL to retain the defendant in extended custody.

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Dealing With Pleas to Some Counts ("Mixed Pleas")

A plea to one count does not end the CTL for other offences. Therefore guilty pleas to some counts may cause difficulties if CTLs for other denied offences are due to expire before the defendant is sentenced.

On 11th September 2009, Leveson LJ highlighted the predicament faced by prosecutors (see Appendix B).

The prosecution must to decide whether "mixed pleas" are acceptable. Clear instructions are to be provided to advocates. Factors to consider may include:

  • Whether the outstanding counts are to be left on file or no evidence is to be offered?
  • Whether a defendant is likely to seek to withdraw his plea?
  • Whether stakeholder consultation is required before an indication can be given?
  • Public interest considerations depending on the sentence imposed for offences admitted?

There is no need to extend a CTL where the prosecution can give a firm indication in open court that they will ask for the count(s) to lie on file or no evidence will be offered. The decision must be recorded on the Hearing Record Sheet (HRS). An application to extend CTLs will be required if no indication can be given, or no decision has been made.

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Fitness to plead

s.22 Domestic Violence, Crime and Victims Act 2004

The fitness to plead procedure takes place in two stages. A judge (not a jury) first determines the fitness to plead issue. If a judge decides the defendant is not fit to be tried a jury is then sworn to determine whether the offender was responsible for committing the acts charged, but does not go on to consider any intent.

The law has not been amended to clarify when the 'start of the trial' is deemed to occur; i.e. when the judge decides the fitness issue or when a jury starts to consider whether the offender committed the act. CTL used to end when a jury was sworn to consider fitness to plead.

Prosecutors should raise this issue with the judge and invite him/her to declare that the CTL has stopped when a fitness to plead determination is made, irrespective of the finding. If the judge declines, prosecutors are advised to continue to monitor any CTL to the point where a jury is sworn. Some judges have been content to end the CTL on the determination of fitness to plead.

Representations have been made to the Home Office to have the law clarified.

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Mental Health Act Transfers

s.48 Mental Health Act 1983 [Archbold 3-109 - 3-112]

The Secretary of State can transfer a remand prisoner to a hospital if they are found to be suffering from a mental disorder. Where such a "transfer direction" is made the CTL continues and a person will be entitled to bail if it expires. Therefore CTLs must be monitored and applications made to extend where appropriate. Remands with a CTL extension in the magistrates' court can and should take place in the defendant's absence in these circumstances under section 52(3) of the Mental Health Act 1983. Further remands may take place in absence up to a limit of 6 months after which a further court appearance will be necessary. Remands by the Crown Court appear not to be time limit.

CTLs will apply to remands under s.35 and s.36 of the Mental Health Act 1983 (a remand to hospital for a report or treatment) where the defendant has not yet been convicted or found responsible for the acts alleged.

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Bail Issues

  • Technical Bail
    • Following the case of R v Dano Sonnex (Central Criminal Court, 4 June 2009), technical bail is no longer considered to be appropriate where a remand in custody would otherwise be justified. This is CPS approved policy and agreed with other agencies.
  • Pre-Release Conditional Bail
    • Where a person is granted bail pending compliance with a condition, but remains in custody until the condition is satisfied, the CTL runs until the actual release date (R v Ofili [1995] Crim L.R. 880).
    • The CPS must closely monitor these cases to ensure the correct CTL is calculated. Monitoring may require daily contact with the prison, police, court and/or defence. Alternatively the court should be asked to adjourn the case (to a date within the CTL) to check the defendant's remand status.
  • Bail Granted at CTL expiry
    • If a CTL expires without an extension, the accused has an immediate right to bail under the provisions of the Bail Act 1976. A court may impose conditional bail on release (Archbold 3-84) but may not impose a security or a surety.
  • Bail Granted shortly before a CTL expiry date
    • Problems can occur where bail is granted a few days before a CTL expires because any re-arrest for breach of bail may mean a CTL expires before the defendant appears at the court dealing with the case. Transfers within the prison estate may prevent appearance before a CTL expiry where only a few days remained.
    • If the CTL expires, a defendant must be released no matter how serious the breach.
    • To avoid this situation arising, the attention of the judge must be drawn to Regulation 6(6) and to the release of the defendant on the CTL expiry date. Any future remand following a breach of bail will not be subject to a CTL: the defendant's bail or remand will be at the discretion of the court (s.22 (5) (b) of the Act).
  • Section 25 Criminal Justice and Public Order Act 1994
    • The provision applies (even after a CTL has expired or an extension refused) where a defendant has been charged with homicide or rape (or any other offence in section 25(2) or an attempt to commit those offences) and has a previous conviction for any offence in that subsection. If the offence is one of manslaughter, the section only applies where the defendant was imprisoned or detained.
    • The same provisions apply to a defendant convicted in another country of an offence which corresponds to an offence in section 25(2) and if manslaughter or culpable homicide, that a period of imprisonment or detention was imposed.
    • The section applies even if there is an appeal pending against the conviction or sentence.
    • If the prosecution fails to make a CTL extension application, or has failed to satisfy the court it has acted with all due diligence, bail can still be refused under section 25 if the court considers there are exceptional circumstances to justify a remand in custody (R (O) v Crown Court at Harrow [2006] UKHL 42). Here, the court indicated that it did not expect many cases to be affected by this section. The purpose of the section is to remind the court of the risks normally posed by defendants to whom the section applies. The court will have regard to the diligence shown thus far, periods of unjustifiable delay, the overall complexity of the proceedings and to any steps taken to speed up the proceedings to ensure that the overall length of time in pre-trial custody remained reasonable. The court may look given the risks involved as to whether the diligence shown was actually sufficient in all the circumstances: it is called special diligence under the Strasbourg legislation. The section does not impose any burden of proof on the defendant: the prosecution must show there are exceptional circumstances on the usual civil standard of proof (as defined in R v Manchester Crown Court ex parte MacDonald [1999] 1 Cr. App. R. 409 DC] (see below). 

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Prosecution Appeals and Retrials

  • Appeals under Part 9 of the Criminal Justice Act 2003
    • If the prosecution appeals against a ruling made before the start of the trial (s.22 (6B) of the Act) the CTL is disregarded for the time taken for an appeal for which the proceedings have been adjourned pending the decision.
    • Consequently the CTL stops as soon as the case is adjourned in relation to the offence which is subject to the appeal.
    • The CTL re-starts at the resumption of the hearing once the appeal has been determined.
    • The day the CTL stops and re-starts should both be counted as full days and subtracted from the total CTL period and monitoring systems must be updated accordingly.
  • Retrials ordered by the Court of Appeal under s.7 and s.8 of the Criminal Appeal Act 1968
    • Where a Crown Court conviction is quashed and a re-trial ordered, the CTL is, exceptionally, 112 days (in all cases) from the date of the preferment of the indictment for the re-trial (Regulations 5(2)(b) and 5(3)(b)). A 112 day column is to be found in the Calculator.
    • A (new) draft indictment must be served on the Crown Court within 28 days of the order (rule 10 (1c) of the Criminal Procedure Rules (CPR)) and the defendant must be arraigned within two months from the order, or leave from the Court of Appeal will be required.
    • Permission for more time will not be granted unless the Court is satisfied the prosecution has acted with due expedition since the order and that there is good and sufficient cause [Archbold 7-113 and 114].
    • Service occurs when the draft indictment is delivered to, as opposed to signed by, the appropriate officer of the Crown Court: CPR, rule 10. Therefore it is important this date is recorded on the file/CMS.
  • Retrials Ordered by the Court of Trial
    • If a Crown Court trial is aborted (where a jury cannot reach a verdict or is discharged) and a retrial is ordered, CTLs do not restart and do not apply, if the defendant is remanded in custody pending the retrial (R v Crown Court at Leeds, ex parte Whitehead (No. 2) [2000] 164 J.P. 102).
    • However the judge should ensure the accused's interests are protected by ordering a speedy retrial. But if there are difficulties, the judge can consider granting bail or staying the prosecution (and see above under Cessation of Custody Time Limits).
  • Retrials Ordered following a Prosecution Application
    • Where the High Court quashes an acquittal on the grounds that it was tainted and fresh proceedings are "re-opened" (due to a fundamental defect - Article 4 of Protocol 7 of the ECHR), it is uncertain whether a fresh CTL will apply because no express provision has been made.
    • Although it is unlikely a CTL will apply, the prosecution should nevertheless act with due diligence and expedition (as though a CTL applied) if the defendant is remanded pending the retrial.
  • Retrials Ordered by the Court of Appeal under Part VI of the Criminal Justice Act 2003
    • Where the Court of Appeal makes an order quashing a conviction for a qualifying offence following new and compelling evidence and a retrial is ordered, the trial will take place on a fresh indictment preferred by the direction of the Court of Appeal.
    • The new indictment must be served on the court within 28 days of the Court of Appeal's order (rule 10(1)(c) CPR) and the defendant must be arraigned within two months from the order.
    • A new 112 day CTL will start from the date of service of that indictment on the court.
    • It is not clear whether a CTL will apply where a defendant is arrested under s.89 CJA 2003 and before the service of the indictment on the court. However the prosecution should act with due diligence and expedition (as though a CTL applied) if the defendant is remanded pending a retrial.

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Continuing Duty of Review

Prosecutors are to consider whether the circumstances justifying a defendant's remand in custody continue to exist or whether bail, with or without conditions, would be more appropriate.

Before objections to bail are withdrawn, prosecutors are to consider all apparent bail risks with the police. The reasons for the decision must be recorded on file and be endorsed by the appropriate legal manager. The procedure in the National Standard (8.10) must be followed with written agreement by the police and proposed bail conditions. Local Managers must approve the release at a level approved by the CCP which should not be less than level D team leader. Cases involving certain serious allegations will need to be referred to more senior management.

It will always be inappropriate to consent to the release of a defendant who continues to present a substantial bail risk. Bail in these circumstances must not be conceded to avoid judicial criticism or because it is feared that an application to extend a CTL will not succeed. It is very important that the judge hears and considers full legal argument in order for an appropriate decision to be made on the facts of the case and its preparation.

A court order is required for a defendant's release. Therefore prosecutors should ensure the case is listed at court at the earliest opportunity to avoid the defendant being kept in custody any longer than necessary.

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Applications to Extend Custody Time Limit

[Archbold 1-342, 3-85]

Applications to extend a CTL are governed by section 22(3) of the Act, Regulation 7 and rule 14.18 CPR.

Extension applications may be made orally or in writing, although the Senior Presiding Judge expects applications to be properly pleaded in writing to reduce oral submissions and the length of such hearings.

Rule 14.2(1)(c) CPR provides a judge with the discretion to hear applications to extend a CTL in the absence of the defendant. (For example, industrial action, adverse weather, or a defendant refuses to leave a cell.)

The procedure for dealing with extensions of CTLs are more informal than a normal trial process, which means that it is unnecessary to comply with the formal rules of evidence [Archbold 1-351].

Although it would not usually be necessary for the prosecution to provide full disclosure of its evidence, where a defendant seeks to challenge any aspect of the application to extend the CTL, they are to be afforded the means to do so (Wildman v Director of Public Prosecutions TLR 8 February 2001).

A summary of reasons for the decision should be provided (R v Chelmsford Crown Court, ex parte Mills (2000) 164 J.P. 1), which will enable interested parties to understand the rationale behind the decision.

CTL extension decisions 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] COD 407; [Archbold 1-353]. Judicial review applications should be expedited, otherwise, the CTL may expire before a decision is made.

A CTL may be extended, or further extended, before its expiry, provided:

  • Notice has been served in accordance with Regulation 7;
  • The need for the extension is due to:
    • The illness or absence of the accused, a necessary witness, a judge or magistrate.
    • A postponement is caused by the court ordering separate trials in the case of two or more defendants, or two or more charges.
    • Or some other good and sufficient cause.
  • And the prosecution have acted with all due diligence and expedition.

The prosecution must satisfy the court, on the balance of probabilities, that both conditions prescribed by s.22(3) of the Act met (R v Manchester Crown Court, ex parte McDonald [1999] 1 Cr. App. R. 409).

Notice to extend a CTL

Regulation 7 [Archbold 3-85]

Notice must be served on the Court and defendant (or his/her legal representatives) no less than:

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

It is established good practice to provide the grounds for the applications in the notice (R v Central Criminal Court, ex parte Marotta [1999] COD 13) [Archbold 1-350].

The requirement to give notice is directory not mandatory. It does not limit the court's powers under s.23(3) of the Act to extend a CTL at any time before it expires. In (R v Governor of Canterbury Prison, ex parte Craig [1990] 2 All E R 654) the court held it could extend the CTL despite the failure of the prosecution to show that in all the circumstances it had not been practicable to give notice within the time specified.

So failure to serve the requisite notice will not itself prove fatal to an application but it may be a factor in persuading the judge that the prosecution had not acted with due diligence and expedition. Accordingly, every effort should be made to prepare and serve a notice as required by the application.

Regulation 7(4); permits a court to dispense with or reduce the notice period if it is satisfied it was not practicable in all the circumstances for the prosecution to comply with this part of the regulations.

The requirement to give notice is not compulsory and it does not limit the court's power to extend a CTL at any time before it expires. However prosecutors must make every effort to serve the appropriate notice.

Notices are to be served immediately where it's anticipated a case may be adjourned to a date beyond the CTL expiry date.

Certain defendants will be a substantial risk to an individual or the public at large if they are released from custody prematurely. HMCPSI has recommended that in such circumstances an application to extend a CTL should be served to cover a situation where the case is adjourned unexpectedly.

However, in other cases, it should be born in mind that the Protocol for the Effective Handling of Custody Time Limit Cases agreed in December 2014 between HMCTS and the CPS contains the following:

"... 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 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."

Where the prosecution is uncertain whether or not it will need to apply for an extension, it is strictly unnecessary to give contingent notice of an intention to apply unless there is at least a high likelihood of an application becoming necessary (R v Governor of Canterbury Prison, ex parte Craig [1990] 2 All E.R. 654). However, a well-researched and properly thought out written application is likely to be more persuasive than an oral application made, perhaps, by an advocate who does not possess the detailed history of the case.

It is good practice for extension applications to be made at least two weeks before the CTL expiry date. This will give sufficient time for defendants who breach bail to be remanded in custody back to the appropriate court or Area.

Areas handling cases where a breach of bail occurs in a case belonging to another Area must take urgent steps to inform the original Area and court which granted bail. Action 10.6 in the CPS CTL Standard Operating Practice must be followed (details passed to the level B manager who will directly liaise with the office owning the case and ensure the breach is put onto that office's CMS and updated). Further an urgent email with the breach details will be sent to the person spoken to in the other office on the telephone. Prosecutors must be alert to these difficulties and act proactively, particularly if a defendant is remanded in custody on a Saturday or public holiday.

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Good and Sufficient Cause

(s.22(3)(a) of the Act) [Archbold 1-354]

There is a strict legal requirement that the court must be satisfied that there is a good and sufficient cause to extend an unconvicted defendant's pre-trial detention. The duty to establish this falls on the CPS.

The Act and Regulations do not define what is meant by "good and sufficient cause". It is for the court to determine based on the facts of the case. In other words, it is entirely context sensitive. The following principles have emerged:

  • The seriousness of the charge or the shortness of the extension sought, will not in themselves amount to a good and sufficient cause (R v Governor of Winchester Prison, ex parte Roddie [1991] 2 All ER 931). They may however be factors to be taken into account.
  • Delays caused by demands on the forensic service providers may amount to a good and sufficient cause. They are not part of the prosecution, but a failure by the police to expedite their submission or a failure to inform the laboratories of the priority required and the CTL expiry date (including allowing time for defence examination) may lead to the court not approving this as a good and sufficient cause and may also cause it to find that there was lack of good and sufficient cause (R v Central Criminal Court ex parte Johnson [1999] 2 Crim App R 51), Archbold, 1-275. You should find out the submission date and emphasise the urgency to the police and request they do to the forensic service providers. The same  may apply to telephone and computer evidence which is sent to third parties for analysis, provided the expert is not part of the police service.
  • Factors linked to the refusal or granting of bail cannot alone 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. However, the interests of justice in trying jointly charged defendants together is capable of being a good and sufficient reason for extending a CTL of one or more of them (R v Central Criminal Court, ex parte Abu-Wardeh [1997] 1 WLR 1083).
  • The unexpected absence of a crucial prosecution witness is capable of amounting to a good and sufficient cause (R v Leeds Crown Court, ex parte Redfearn [1998] COD 437, DC). This should be read with the statutory grounds set out above dealing with the absence of a necessary witness but the unexpected part may be of assistance to prosecutors.
  • It is wrong to express general statements of principle as to when counsel's convenience could amount to a good and sufficient cause. But in very serious cases, a decision that reflects counsel's convenience was not incapable of being lawful. It is a factor which, if properly balanced against others, was capable of justifying an extension (R (Campbell-Brown) v Central Criminal Court [2015] 1 Cr App R 34). There is no reason why this useful case should not be applied to prosecuting counsel in appropriate cases.
  • A trial date within the CTL should be fixed at an early stage, preferably at PCMH, especially in complex cases or when a specially authorised judge is required. If the court fails to take the initiative, the CPS should press for a hearing within the CTL. If it is not possible to list a trial with the CTL, the court should fix a hearing date for the CTL extension application as soon as possible after PCMH, allowing time for the service of evidence (R v Worcester Crown Court, ex parte Norman [2000] 2 Cr App R 33).
  • The availability of resources was a factor that could be taken into account. In routine cases the unavailability of a judge or courtroom would not in itself be enough. However complex cases, or those requiring a particular judge, might provide a good and sufficient cause (R (Gibson) v Winchester Crown Court [2004] EWHC 361 (Admin)). This case is often justification for a High Court Judge or a specifically "ticketed" judge required for complex, murder or terrorism cases.
  • However, in routine cases, if the lack of resources was accepted too readily the purpose of the legislation would be undermined (R (Bannister) v Guildford Crown Court [2004] EWHC 221 (Admin)).
  • Routine cases must be listed within the CTL. If there is difficulty in finding a courtroom or a judge, the court must take the initiative, which includes searching neighbouring regions to list a case. If it is not possible to list a case within a CTL, the court must provide evidence of the attempts made to list the case so that it can be rigorously scrutinised (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)). One description of what constitutes a routine case indicated that the definition included any case which would take up to two weeks to try. The CTL Protocol with HMCTS sets out the tasks Court Listing Departments are required to undertake.
  • Where exceptional circumstances are said to exist, which prevent cases being listed within CTLs, the court should carefully examine the reasons and proposed solutions to determine whether the reasons are exceptional and the proposed actions were likely to reduce the problem. If delays were not being alleviated, a court might conclude there was a systematic failure to list trials within CTLs and this would not be a good and sufficient cause (Kalonji v Wood Green Crown Court [2008] A.C.D. 11).

In any event, good and sufficient cause must be pleaded in the CTL extension application. Clearly prosecutors should avoid what has been previously held not to be a good and sufficient cause but it should also be remembered that each case has been decided on its own facts. Lack of resources of the police or CPS or even the courts are not likely to find favour, even in these days of austerity.

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All Due Diligence and Expedition

(s.22(3)(b) of the Act) [Archbold 1-359]

The Act and Regulations do not define what is meant by "all due diligence and expedition".

The word "diligence" was added by the Crime and Disorder Act 1998, but the previous case law on "due expedition" will still be relevant. The following principles have emerged from case law:

  • The prosecution must have acted with all due diligence and expedition. The "prosecution" includes the police (R v Birmingham Crown Court, ex parte Ricketts [1991] R.T.R. 105, DC).
  • An objective test applies. It is not sufficient for the prosecution to say that they have done their best in difficult circumstances (due to staff shortages, overwork or sickness), (R v Governor of Winchester Prison, ex parte Roddie [1991] 2 All ER 931).
  • The prosecution need not show that every stage of case preparation has been accomplished as quickly and sufficiently as humanly possible, nor should it be assumed the prosecution have given the case their undivided attention. What is required is such diligence and expedition as would be shown by a competent prosecutor conscious of their duty to bring the case to trial as quickly, as reasonably and as fairly as possible (R v Manchester Crown Court, ex parte McDonald [1999] 1 Cr App R 409).
  • The court will consider the nature and complexity of the case, the preparation necessary, the conduct of the defence, the extent the prosecutor has been dependent on others outside their control and any other relevant factors (R v Manchester Crown Court, ex parte McDonald [1999] 1 Cr App R 409).
  • Delays in arrest and charge are immaterial because the due diligence and expedition test relates to the CTL period (R v Ipswich Crown Court, ex parte the CPS [2010] EWHC 1515 (Admin)). This is an important case, particularly in relation to on-going police investigations. Prosecutors must ensure that counsel is fully conversant with the full judgement.
  • However a judge will not ignore delay whilst the police investigate a possible co-defendant with a view to joinder. Delay is relevant to 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 any case progression must be prioritised. Once charged, a co-defendant must be expeditiously sent to the Crown Court with next day court appearance following charge if not in custody. The requisition and charge by post is wholly inappropriate in these circumstances.
  • The prosecution is not required to act as though the case is their only task, but must act with the diligence and expedition appropriate to the circumstances of the case (R v Norwich Crown court, ex parte Parker [1993] 96 Cr App R 68).
  • The court should consider the matter by reference to the stage to which the CTL relates. Lack of expedition at an earlier stage need not be taken into account, although there may be cases where it is a relevant consideration (R v Birmingham Crown Court, ex parte Bell [1997] 2 Cr App R 363).
  • Where the prosecution has caused avoidable delay, a CTL extension would not necessarily be refused if the delay had not affected the ability of both parties to be trial ready (R v Leeds Crown Court, ex parte Bagoutie Times, 31 May 1999 and R (Gibson) v Winchester Crown Court [2004] 2 Cr App R 14).
  • 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), [Archbold 1-359].
  • Delay by Forensic Science Providers (FSP) or other independent scientific analysis is not a failure by the prosecution to act with all due expedition (R v Central Criminal Court, ex parte Johnson [1999] 2 Cr App R 51). However the prosecution must do everything possible to ensure the evidence is available on time. This will include making whoever is conducting the analysis aware of relevant court dates and CTL expiry dates, ensuring the police dispatch items at the earliest opportunity, agree action plans and timetables for receipt of FSP material. The police should be asked to inform the CPS of any difficulties. Reviewing lawyers will obtain considerable benefit in contacting the police by telephone and discussing the importance of prompt dealings at all stages and seeking more time from the court if necessary. Ascertaining the likely time required for receipt of the completed analysis will be of considerable assistance to the judge in determining the next hearing date.
  • When the prosecution serves forensic, scientific or technological evidence the defence often instruct their own expert. Reasonable time for the defence to commission an expert must be appreciated. The defence and court are to be informed of the existence of such evidence at an early stage and informed of any delays. This will give time for the defence to identify an expert and seek legal aid where appropriate. Defence experts should have early access to the relevant material and prosecutor must take positive action with the police to ensure this is facilitated.

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Drafting a CTL extension application

  • In contested applications, the prosecution should provide a quality legal submission justifying the application through a clear exposition of the good and sufficient cause and a detailed chronology (preferably agreed) setting out the dates of all material events and court orders, including the dates when directions were met. This should clearly illustrate case preparation with due diligence and expedition, while explaining any delays (R v Chelmsford Crown Court, ex parte Mills (2000) 164 JP 1). The quality standard to be achieved should result in the judge having few if any questions to ask the prosecution advocate.
  • It is insufficient to simply indicate there is a good and sufficient cause to extend without detailing what this is.
  • If there have been delays, the application must deal with them (rather than obscure the facts) and explain why the delay occurred and what was done to minimise them. There may be many reasons for delays which will not necessarily be fatal to the application. If the court and defence have been kept informed, the impact of any delay is likely to be far less than bouncing the court with a vague application on the day of the hearing and ignoring the delay as a means to try to succeed with the application.
  • A template application to assist in making a quality application to extend a CTL (and an integral case library) can be found on the CPS Infonet.
  • CTL extension applications should inform the court about the efforts made to ensure that third parties (for example, forensic service providers or other government agencies) have been told of the need for urgency and explain reasons for any delay.
  • Advocates must ensure they have all the necessary information and any apparent gaps must be the subject of an enquiry before the court hearing.
  • The application must be detailed enough for an advocate who is new to the case to make a good quality application. It must be supported by instructions which provide a full picture of the case and the difficulties encountered and managed. Too many applications fail because the prosecution advocate was not as well instructed as the defence.
  • The application must be approved by a manager of at least level D grade. That manager must ensure that the application is of the appropriate quality and thus becomes responsible for it. This will necessitate some time resource and experience shows that where possible, the approval should be given or otherwise following a face to face meeting.
  • Notices to the defence which accompany the application should ask the defence if they either agree the application or are to oppose it with grounds for their opposition and for details of any authorities to be quoted.
  • Prosecutors should be aware from the court what efforts have been made to list the case within the CTL where there are difficulties (see paragraph 5 of CPS and HMCTS Protocol and 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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Appeals against a CTL decision

[Archbold 1-342, 3-134]

Appeals in the magistrates' court are governed by s.22 (7) and (8) of the Act and Rule 19.17 CPR.

A prosecutor's appeal against a refusal to extend a CTL must be made before the CTL has expired, pursuant to s.22 (9) of the Act and CPR 14.18 and as soon as possible after the decision to appeal has been notified orally to the court.

Once an appeal is lodged the CTL is "deemed not to have expired" until the appeal is decided or abandoned, even if the hearing is to take place after the expiry of the original CTL.

An appeal is lodged when written notice is served on the Clerk to the Justices, the accused and the appropriate Crown Court officer. The notice must state each offence with which the defendant has been charged; the decision under appeal; the CTL expiry date and the grounds of the appeal. If an appeal is made on the last day of the CTL (this is not good practice) it will be "deemed not to have expired" even though the Crown Court hearing may take place after the expiry date.

If a judge refuses an application to extend a CTL on the basis of a fundamental error of fact, the appropriate procedure is to re-apply to the judge or, if unavailable, to the senior judge at the court centre (under s.22(3) of the Act), [Archbold 1-353].

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 Teesside, ex parte CPS 163 JP 821).

A form for the appeal notice is included in CMS. Prosecutors should obtain approval from the team leader for lodging an appeal against a magistrates' court refusal to extend a CTL wherever possible. The approval should be given when an application for an extension is given to the Level D or above for it to be approved. No prosecutor or advocate should attend a magistrates' court for an extension hearing without prior approval to appealing a refusal being given. If exceptionally, a refusal should occur unexpectedly, and the refusal to extend was plainly wrong, an appeal should be made and approval sought afterwards as a matter of urgency.

Where a Crown Court grants a prosecution appeal against a magistrates' court decision to grant, the judge must (unless the accused was sent 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 and 129 Magistrates' Courts Act 1980 (i.e. a remand period which does not exceed 8 days from accused's last magistrate appearance, or possibly, 28 days if s.128A MCA applies), [Archbold 3-115].

It is the prosecution's responsibility to invite the judge to specify the relevant date (Remice v Governor of Belmarsh Prison [2007] Crim L R 796, DC). The time spent in custody pending the appeal continues to run but the CTL will not expire. Prosecutors must be alert to the danger of a CTL expiring during the remand back to the magistrates' court and apply for an extension where necessary.

Appeals against refusals in the Crown Court are more problematic and complex. They are made to the High Court and are unlikely to succeed unless the Prosecution have not contributed to delay which has had a direct impact on the trial date. It is important to understand that the appeal is not a re-hearing: the prosecution must be able to prove that the Judge's decision was 'Wednesbury' unreasonable or irrational. If one of the objectives is to retain the defendant in custody, it is important to note that neither the Crown nor High Court have power to stay the grant of bail pending the appeal hearing once the CTL has expired. The best that can be hoped for is that the extension hearing in the Crown Court is heard well before the CTL expiry date and that the Judge agrees  not to release the defendant on bail until the expiry of the CTL (see above at Regulation 6 of the CTL Regulations). This would enable an expedited appeal (timescales are likely to be tight) to be made to the High Court on Form N461 (application for judicial review) and Form N463 (application to expedite) - the up to date forms must be used and are available on  https:/www.justice.gov.uk/courts/procedure-rules/civil/forms.  The High Court can shorten all time limits and can hear the application, if necessary, the next day.

Separate more detailed guidance will be issued on appeals to the High Court for the judicial review of a decision to refuse to extend a CTL shortly.

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Failures in the CTL System

A failure will still exist even when a CTL application to extend is refused but the defendant remains in custody on other matters.

A CTL failure occurs, and a defendant is to be released on bail, when:

  1. 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); or
  2. No valid application is made to extend the CTL before its expiry date.

Common examples of failures caused because no valid application has been made to extend a CTL:

  • An erroneous file endorsement.
  • The wrong CTL start date was recorded.
  • Miscalculations, especially when a defendant has been released on bail and later re-remanded following a breach of bail.
  • A breakdown in communication regarding when and where a defendant was re-remanded following a breach of bail.
  • A failure to properly consider whether there is a need to apply to extend a CTL.
  • A decision is made not to apply to extend a CTL because the prosecution recognises an extension is unlikely due to a lack of due diligence and expedition. (A decision to withdraw objections to bail should not be made for expediency where a person presents a substantial and continuing bail risk.)

No CTL failure occurs where a court determines the prosecution has acted with the necessary diligence and expedition, but deems it appropriate as a matter of the court's discretion to grant a defendant bail.

If an expired CTL is discovered, the court and defence should be informed immediately and the defendant produced at court as soon as possible. This is because a court order is required to release the defendant.

Where a CTL failure occurs, Areas are to follow the following procedure:

  • The failure is to be reported to a District Crown Prosecutor (DCP) as a matter of urgency.
  • The DCP is to inform the Chief Crown Prosecutor (CCP) as soon as possible.
  • The appropriate police officer must be informed as a matter of urgency to facilitate any suitable safeguarding provisions.
  • The Witness Care Unit must be informed, to ensure relevant victims and witnesses are updated.
  • The CCP is to prepare a report for the Director of Public Prosecutions, including a detailed chronology of events, a full explanation for the reason(s) for the failure and what remedial action has been taken to prevent a recurrence. The document must include a risk assessment and what steps have been taken to reduce any risk.
  • The report, together with any CTL extension application, is to be forwarded to Operations Directorate at CPS Headquarters without delay.

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Appendices

The following appendices can be found by following the links below.

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

Appendix B: Applications to Extend Custody Time Limits (letter from Senior Presiding Judge of 18 December 2009 regarding extensions)

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

Appendix D: Handling Cases with CTL. A Guide for Advocates Representing the Prosecution

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