Indefinite strike action taken by the Criminal Bar Association (CBA) is further increasing the focus on the unacceptable custody time frames facing people on remand within the UK justice system. The strike action only exacerbates the existing backlog of around 60,000 cases.
For those on remand ‘custody time limits’, currently six months for trials in the crown court, are intended to restrict the amount of time spent in prison before a trial takes place.
However, if there are delays in a trial taking place, the prosecution can apply to the court to extend this time limit. In practice, this means that custody time limits are regularly extended, in some cases by a substantial margin.
1,777 people held on remand have been in custody for over a year. 475 people held on remand have been in custody for over two years. This is particularly stark in the context of Ministry of Justice statistics from 2021 showing that 10% of people held on remand are acquitted at trial.
Following the indefinite strike action taken by the CBA, a number of courts have released defendants held on remand where trials could not go ahead. In one case Judge Peter Blair KC cited “chronic and predictable consequences of long-term underfunding” when refusing to extend custody time limits. This judgment alongside a similar judgment in Manchester Crown Court was appealed to the High Court in September and subsequently reversed.
In overturning the judgment, the High Court found that the strike action taken could not yet justify refusals to extend custody time limits. The High Court judgment provided the last week of November as the point at which strike action would be “chronic and routine”. If the strike action is still ongoing by late November this could now justify the release of some defendants held on remand when custody time limits expire.
There is a wide range of reasons why it may be necessary for a defendant to be held on remand before a trial takes place. If a defendant is charged with a serious crime they will typically be held on remand before facing trial. Other reasons include prior convictions for serious crimes or a legitimate risk that a defendant will commit a crime whilst on bail.
These considerations are crucial both to public safety and upholding the rule of law. However, without adequate checks and balances, there is a risk that the human rights of defendants are threatened. Habitually extending custody time limits risks undermining core principles around a defendant’s right to a fair trial.
One issue that has been highlighted in the America around lengthy pre-trial detention relates to the risk of innocent defendants submitting guilty pleas. If the time spent on remand would exceed the sentence for conviction this can factor into defendants’ decision-making.
Pre-trial detention periods in the US greatly exceed those in the UK and provide a stark reminder of the importance of strictly adhering to custody time limits. A 2018 study by the American Economic Review identified a causal link in the US between longer pretrial detention and convictions involving guilty pleas.
Questions have been raised as to whether it is right for defendants to bear the human cost of delays to trials within the UK. Fair Trials, a non-governmental organisation, has been campaigning for the defendant’s rights in criminal cases. Bruno Min, the organisation’s legal director stated “the Government should be taking urgent steps to tackle the underlying causes of the crisis”.
This sentiment has been reflected in a government report carried out earlier this year. The House of Commons Justice Committee concluded that there were wide-ranging funding issues within the justice system. Sir Bob Neil MP, the chairman of the committee, stated “the court system is creaking and there needs to be coherent, consistent planning to fix it ”.
The CBA is currently voting on the government’s pay offer. The pay offer representing a 15% increase would apply to the majority of cases in the backlog. Previous offers had been criticised because of the way in which they only applied to new cases, rather than cases in the backlog, something that meant it would take years for the increase to feed through.
The outcome of the vote by barristers in the CBA vote will have a critical effect on government plans to reduce the backlog of cases. As identified by Sir Bob Neil it is crucial that a coherent strategy is put in place to begin resolving these systemic issues. Following decades of cuts, it is vital that adequate funding is provided in order to protect the rights of those navigating the criminal justice system.
They are currently being caught in the crossfire.