The law’s delays
If custody time limits can easily be extended, what’s the point of having them?
Despite endemic delays in the criminal justice system, the High Court has said that a judge at a busy London court should not have ordered a defendant to be held in custody for five months beyond the statutory time limit.
In a judgment delivered last Thursday, Mrs Justice Eady made a deferred quashing order. Unless the defendant can be tried in the meantime or there is a successful appeal, he will have to be released on bail by 4 December.
Ruben Bernard is a man of 22 with no previous convictions. He has been accused of
The alleged victim is the mother of his young child.
When the defendant first appeared in court on 5 March this year, bail was refused on the basis that there were substantial grounds for believing he would interfere with witnesses and commit further offences.
Custody time limits were introduced 40 years ago. They can be extended for “good and sufficient cause”.
Under the current custody time limit, the defendant’s trial should have begun by 3 October. At a hearing on 30 September, prosecutors applied successfully for the time limit to be extended until next March.
The case came before Judge Del Fabbro at Snaresbrook Crown Court. In an extempore judgment, he said:
It is submitted on behalf of the defendant that a lack of resources — funding by central government — of the criminal justice system is the root cause of the issues which Crown Courts and other courts face, day in and day out.
There is no evidence to back that up. It is but one factor amongst many, many others, some of which I have touched upon, including the fact that there are unprecedented increases in trials coming before these courts, something which was unheard of a decade ago in terms of volume and the nature of the allegations which these courts have to try. So, it is but one of several factors.
The reality is that this case has to take its turn amongst many other priority cases. And by priority, I mean high-priority cases: they all involve defendants who are in custody, but many of those cases, they are vulnerable witnesses, children that give evidence and so on…
So, taking all those factors into account and being at what is considered to be one of the busiest courts in the land, I have day-to-day knowledge and understanding of the listing system at this court.
It is operating at its full potential, it does what it can to accommodate trials of this nature at the earliest opportunity and I know, as a matter of fact, that there are regular meetings between the list office here and the regional cluster, so that regional listings will notify this court if there are any other available slots for a case to be heard at a neighbouring court.
It so happens that this week there are no other courts available to take this case and efforts this morning to secure an earlier date — earlier than 2 March — have proved futile, because the list office has confirmed that there is no other slot available.
So, in those circumstances, I have to consider whether those reasons provide good and sufficient cause for extending the custody time limit. I do find that those are good and sufficient causes for extending the custody time limit.
The defendant challenged that decision by bringing a claim for judicial review. In the High Court last week, Eady said
the reason apparently accepted as necessitating the extension in this instance — lack of resources due to “unprecedented increases in trials“ — does not establish sufficient cause for not bringing this three-day trial on for hearing within the custody time limit.
Even assuming that the judge was correct in identifying this as the reason why a listing could not be found within the custody time limit, there is nothing that would explain why that was sufficient reason for granting the extension.
Comment
It cannot be easy for circuit judges to decide when to extend custody time limits. In March this year, Mr Justice Hilliard granted a claim for judicial review by the Crown Prosecution Service after a judge at Maidstone Crown Court had refused an extension.1
The deferred quashing order, introduced in 2022, seems a good idea in cases such as this. It enables an order to remain in force for a short period while a decision-maker thinks again.
The legislation also allows for — though does not require — prospective-only quashing orders. As I noted here at the time, this was supported in parliament by Lord Brown of Eaton-under-Heywood, the former law lord, who died in 2023.
He observed a year earlier that prospective quashing orders “would give the quietus to what has been called the ‘metaphysic of nullity’ — the constraining theory that any legal error makes a decision or instrument not merely voidable but void ab initio”.
That’s not the sort of language you hear any more, even in the House of Lords.
R (Payne-Woodham) v Maidstone Crown Court [2025] EWHC 3055 (Admin), reported only on Westlaw UK as far as I can see. Counsel was unwell on what should have been the first day of the trial and the recorder would not have been able to sit for an extra day.
Several years ago, the Canadian Supreme Court recognized that a criminal accused (defendant) has a constitutional right to a trial within a reasonable time. The name of the judgment is Jordan.
Anyone interested in this topic may want to have a look at the Canadian jurisprudence and commentaries on it.