R (Marten) v Crown Court at Lincolnshire [2022] EWHC 2283 (Admin)- CTLs, COVID-19 & Backlog

As the CJS continues its gradual crumbling around the ears of a government that has been, at times, blasé, ideological, and absent, Benjamin Ramsey looks at the latest in a run of decisions from the Divisional Court to show that, for routine cases, the courts will not blindly paper over the cracks. A CTL is there for a reason, the Court underlines.

Background

This recent case deals with the relevant legal test to be deployed in applications to extend Custody Time Limits (“CTLs”) in “routine” criminal cases following the end of the COVID-19 Pandemic. A CTL applies in cases where a defendant is remanded in custody, pending trial.

The Claimant’s claim arises out of an initially successful application by the Crown Prosecution Service (“CPS”) to extend the CTL by six months.

The Claimant was awaiting trial on indictment for offences of assault by beating; possession of a bladed instrument; doing acts tending to pervert the course of justice and criminal damage. These offences are alleged to have taken place in September 2021. The case was originally listed for trial on 14th March 2022 and the Claimant was remanded in custody pending trial.

Divisional Court tackles CTL extension challenges.

As a result, the Claimant’s initial CTL was 21st March 2022. On 4th March 2022, a pre-emptive application to extend the CTL was made by the CPS in which the Prosecution confirmed their case was ‘trial ready’.

On 14th March 2022, HHJ Hirst confirmed the trial could not be heard during its initial date “because of court availability”. The earliest date it could be relisted was 12th September 2022. The judge proceeded to relist to that date and granted the CTL extension application, extending from 21st March to 16th September 2022.

Legal Framework

Section 22 of the Prosecution of Offences Act 1985 provides the Secretary of State with the power to make regulations which set time limits concerning the preliminary stages of criminal proceedings and how long a period an accused can be remanded in custody for the offending.

Regulation 5 of the Prosecution of Offences (Custody Time Limits) Regulations 1987 (SI 1987/299) states that the appropriate CTL is one of 182 days. Section 22(3) provides the power to extend a CTL but ‘the Court shall not do so unless it is satisfied:

  1. That the need for the extension is due to-

(iii) Some other good and sufficient cause (emphasis added).

The Prosecution must also have acted with all due diligence and expedition (Section 22(3)(b)).

Regina (Director of Public Prosecutions) v Crown Court at Woolwich; Regina (Lucina) v Central Criminal Court [2021] 1 WLR 938, previously considered CTLs in light of the COVID-19 pandemic. 

It was found that:

“if the need for an extension of a CTL results from a shortage of suitable courtrooms caused by the Covid emergency, which provides a good cause within the meaning of section 22(3)(a)(iii) of the 1985 Act.”

The Court, however, clearly outlined that while such an issue may be a good reason it would not necessarily be a sufficient reason to extend CTLs; further scrutiny of the shortage would be required. The burden falls on the Prosecution to provide sufficient evidence to show that there is a sufficient reason to extend the CTL.

In R (McAuley) v Crown Court at Coventry (Practice Note) [2012] 1 WLR 2766, the Court provided guidance on ‘routine’ cases confirming that:

“it would not be necessary to extend a CTL unless there were exceptional or unusual circumstances.”

Despite these authorities, the Court has since continued to allow extensions to CTLs with sparse reason and the blanket assertion that the delay is a result of the backlog caused by the COVID-19 pandemic.

Conclusions from Marten

The Divisional Court in Marten found at [25]:

“The CPS implicitly seek to pray in aid that the continuing impact of the pandemic, which is said to be a major contributory factor in the backlog and therefore as a cause of significant delay, reduces the level of investigation necessary into whether a good reason is also a sufficient reason. However, this argument is not compatible with Woolwich or McAuley and we reject it.”

There was no indication that inquiries had been made of all other proximate court centres, and not merely those on Circuit, or whether other non-custodial cases which were listed could appropriately be adjourned

The Court went on to note that the Prosecution of Offences (Custody Time Limits)(Coronavirus)(Amendment) Regulations 202/953, which were brought in to deal with CTLs in light of lockdown measures ended on 28th June 2021. Therefore, it can be assumed that the law in relation to CTLs has reverted to those established pre-pandemic.

In the present case, the Court noted the judge’s reasoning for extending the CTL was “sparse” and that there was insufficient scrutiny during the hearing as to whether there was a good and sufficient reason for extending the CTL.

Furthermore, it was found that the 6-month extension, in this case, was an error of law, highlighting that para 44 (vii) of Woolwich noted that an extension would normally be no longer than three months so that the Crown Court can retain the power to review the case for changing circumstances.

To conclude, the Court found that:

“There is no proper basis that is disclosed upon which the prosecution could show that the need for an extension was due to good and sufficient reason.”

As a result, the application for judicial review was granted, and the decision was quashed and remitted back to the Crown Court at Lincoln for them to make a decision in line with the law. 

Marten illustrates the CPS can no longer simply utilise the COVID-19 pandemic and the resulting backlog as an overriding reason as to why the Court should be satisfied to extend CTLs. Any application for an extension must follow the pre-pandemic legal test and sufficient scrutiny of the issues that have resulted in the extension application must be undertaken.

UPDATE: There is a joined application for judicial review of the decisions of the Recorder of Bristol and of HHJ Tina Landale not to extend CTLs in two unrelated cases. That JR is due to be heard by the President of the Kings Bench Division and Mr Justice Chamberlain on 26th September 2022. Benjamin Ramsey’s pupil supervisor is counsel for one of the defendants (i.e. one of the Interested Parties) in those proceedings and is assisted by Mr Ramsey. Therefore, at the conclusion of that increasingly high-profile matter, see this site for discussion of the impact and of where it leaves the Marten authority.


Benjamin Ramsey is a pupil at Central Chambers. He will be available to accept instructions from the start of his second-six in Autumn 2022. Please contact the Criminal Clerks to enquire as to his availability for prosecution and defence instructions.

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