Custody time-limits

Defining the time-limits for an accused in custody awaiting trial

Whenever a person is accused of committing a crime and charged with an offence he could be remanded in custody or on bail for the preparation of the case and commencement of proceedings.

If the former is chosen, he may remain in custody for a number of days up to a specified maximum period. The existing limits have been designed to ensure the fairness of the proceedings to the accused. It has been recognised that if no such time restrictions exist, the preparation for a case could take a long time, which in turn could be unfair to the accused. 

For example it would be unfair for a person to spend 12 months in custody for a relatively minor offence which is punishable with up to 6 months imprisonment. Further, awaiting trial for a long period of time to be found not guilty at the proceedings would also appear unfair to the accused.

The different time-limits

Section 22 of the Prosecution of Offences Act 1985 regulates the custody time-limits. The provision establishes the maximum periods of time which an accused can be kept in custody before trial.

There are different periods applicable in accordance with whether the offence is summary, triable either way or indictable-only. The reasoning behind that separation is that the three types of offences are inherently different in the complexity of the issues involved, the investigations and preparations that need to be undertaken in getting ready for trial.

The current provisions provide for the following specified terms:

  • 70 days between the first appearance in the magistrates’ court and committal proceedings

  • 70 days between the first appearance and summary trial for an offence which is triable either way (the period is reduced to 56 days if the decision for summary trial is taken within 56 days)

  • 56 days between the first appearance and trial for summary offence

  • 112 days between committal for trial and arraignment

  • 182 days between the dates an accused is sent for trial under s 51 of the Crime and Disorder Act 1998 for indictable-only offences and the start of trial

In practical application of these rules, when calculating the time limits and their expiry dates the relevant date for beginning the calculation is the day after the date of first appearance at court. The period extends until midnight on the day of expiry. However, if the expiration date falls on Saturday, Sunday, Christmas day, Good Friday or a Bank holiday, then it will be treated as expiring on the next normal day.

If the custody time-limit expires

When the prosecution fail to comply with the defined time-limit special rules apply for the accused’s right to bail. In essence those provide that if the limit has expired, then the exceptions to the right to bail listed in Schedule 1 of the Bail Act 1976 cease to apply. Therefore, in effect the accused is given an absolute right to bail.

Further, whenever a person applies for bail and is granted such by reason of the expiry of a custody time-limit, the court granting bail is prevented from imposing conditions for bail such as requirements for surety or security or even curfew conditions. Therefore, the court’s powers are also restricted following the prosecution’s failure to meet the requirement of time.

Application for extension

As seen the prosecution are required to avoid delays and ensure the case is prepared and dealt with as quickly as possible and before the relevant time-limit expires. However, there is still a right to the prosecution to apply for the limit to be extended.

It is a requirement for the application to be made before the expiration of the time limit. If such is made, in considering whether to grant an extension the courts have regard to the criteria laid down in section 22(3) of the Prosecution of Offences Act 1985. Under that provision the court must be satisfied that the need for the extension is due to any of the three specified conditions:

  1. The illness or absence of the accused, a necessary witness, a judge or a magistrate;

  2. The ordering by the court of separate trials in the case of two or more accused or two or more offences;

  3. Some other good or sufficient cause.

Further, the court must also be satisfied that the Crown has acted with all due expedition. In deciding whether the standard of preparation has been met, the court will take into account factors such as the complexity of the issues involved, the preparation necessary. The conduct of the defence and the extent to which the prosecutor has been dependent on others outside his control would also be considered. Further, staff shortages and sickness would be an inadequate reason to apply for extension.

In satisfying the court of the conditions above, the prosecution bear the burden to do so on the balance of probabilities. If that burden is satisfied, then the court may grant an extension of the time limit.