The Cost of Covid: Caught in the System
Hint - complex terms in bold and blue have definitions, just click on them to see the legal meaning!
Imagine this – you have been arrested for a crime that you did not commit. You are interviewed at a police station, spend the night in a cell, and get taken to the nearest Magistrates’ court the following morning. As the matter you are charged with is so serious, it is sent straight to the Crown Court. Your lawyer asks the judge in the Magistrates’ Court for bail on your behalf. The court denies you bail, and you are remanded in custody. You are loaded onto a prison van and taken to the nearest prison with available space. 28 days later, you appear before a Crown Court judge and enter a not guilty plea to your charge. You ask your lawyer to apply for bail. Again, the court denies you bail, and you must stay in prison until your trial date.
Prison is tough. You’ve never been inside before, and, sometimes – because of COVID restrictions – you must spend 23 hours a day in your cell. This is having a terrible impact on your mental health. You’re frightened for your safety as, recently, deaths from COVID in prison have significantly increased. You can’t wait for your case to be heard before a jury and to tell your side of the story. Hopefully, you’ll be acquitted, and you can put this whole ordeal behind you. However, that opportunity is some time away. Your trial is not going to be heard for months. And, thanks to the pandemic, you are going to have to wait even longer to have your chance of freedom.
The backlog
Before the COVID-19 pandemic, delays in the court system were rife. By the end of 2019, the backlog of criminal cases in the Crown Court reached a new high, with 37,434 matters waiting to be heard. Many law experts have argued the court backlog is caused by the government’s failure to put enough funding into the criminal justice system. For example, in the summer of 2019, over half of all Crown Courts across England and Wales lay empty, because there were not enough judges to hear the cases as their ‘sitting day allocations’ – i.e. the number of days the government were willing to pay for judges to work – were cut.
The pandemic has made the situation much worse. The number of outstanding cases in the Crown Court have now risen to 53,000. Some defendants, victims and witnesses are having to wait up to four years from the time of an alleged offence to the case reaching trial. Lawyers, campaigners and academics alike have expressed their ‘grave concerns’ over what long term impact these delays are going to have on the justice system.
Custody Time Limits
The courts are not allowed to keep a defendant in prison indefinitely whilst they await trial. There are rules, known to lawyers as ‘custody time limits’, that dictate the maximum time a person can be kept in prison whilst they await trial. They are there to ensure that the periods for which unconvicted defendants are held in custody awaiting trial are as short as reasonably and practically possible. These rules also exist to oblige the prosecution to prepare cases for trial with all “due diligence and expedition” – in other words, the prosecution must act as carefully but as quickly as possible in getting a case to trial.
Previously, defendants awaiting trial in the Crown Court could be held in prison for up to 182 days (roughly six months). When that period comes to an end, the court has the power to extend it for even longer if a) the prosecution requests the court to b) certain situations apply and c) if the prosecution has acted ‘with due diligence and expedition’. If the time limit is not extended, the defendant must be released after 182 days.
Due to the delays to jury trials caused by the pandemic, the government bought in the Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 2020, which increased the custody time limit from 182 days to 238 days (roughly eight months). These new time limits came into force on 28 September 2020. The new custody time limits will remain in place for nine months (i.e. until late June 2021-- the government is yet to indicate if custody time limits will revert to 182 days after this period).
Many people spend time in prison on remand only to be either acquitted or given a non-custodial sentence (for example, being ordered to do community service, or be subject to a tagged curfew for a set period). In 2019, some 3,000 people were acquitted in the Crown Court having spent time in prison on remand. Under the new regulations, innocent people will be held in prison for even longer.
Initially, the new time limits applied equally to children (i.e. a person between the age of 10 – the age of criminal responsibility in English law – and 18) and adults. However, in December 2020 a charity called Just for Kids Law challenged the government, asking them to exclude child defendants from the custody time limit extension. They were successful in their challenge, and from 14 January 2021, children were exempt from the extension to custody time limits. Considering that a third of all children in prison are on remand and, of those children on remand, two-thirds of them will not be given a prison sentence after trial, this legal challenge potentially saved hundreds of children being remanded unnecessarily for even longer periods of time.
Call to action
Back in March 2018, you probably wouldn’t have predicted that, two years later, we would be amid a global pandemic. There are probably innocent people in custody right now who would never have imagined that they would be in prison for several months, not having been convicted. Most people don’t encounter the prison system, so unless they are involved in the law in some other way, they don’t consider the impact of the pandemic on members of our prison population who are awaiting trial.
Whether you are a lawyer in the making or have no interest in the legal profession, all who enjoy the fruits of law, order and justice have a part to play. It is incumbent on us to put ourselves in the situation of the person at the beginning of this article and to think about what we can do to challenge authorities to make the system fairer for all. Perhaps you could do this by keeping an eye on developments about custody time limits in COVID. If you think that something is not fair or just, act. Write letters to those who can make a difference. Strive to achieve your personal academic best to set you on the road to legal practice or academia. Or volunteer with an organisation whose principles you agree with. You have a voice – and there are voiceless people who are relying on you to speak on their behalf.
Author Comments
Magistrates Court - All criminal court cases start in a magistrates’ court, and around 95% will be completed there.
Crown Court - Magistrates’ courts always pass the most serious crimes to the Crown Court.
Remanded in Custody - When a person is remanded in custody it means that they will be detained in a prison until a later date when a trial or sentencing hearing will take place. The majority of prisoners on remand have not been convicted of a criminal offence and are awaiting trial following a not guilty plea.
28 Days - According to Criminal Procedure Rules, when a matter is ‘sent’ from magistrates’ court to the crown court, there must be a hearing called a ‘Plea Trial and Preparation Hearing’ (PTPH) where the defendant enters their plea. The Criminal Procedure Rules are rules about criminal court procedure in magistrates’ courts, the Crown Court, the Court of Appeal and, in extradition appeal cases, the High Court.
Certain Situations - Such situations may include, for example, if a trial cannot go ahead due to the illness of the defendant, or a necessary witness in the trial
Children on Remand - Two-thirds of all children remanded in Custody are Black and ethnic minority.
About the Author:
Yasmin is a barrister at Lamb Building Chambers in Temple, London.
Lamb Building is a ‘Common Law’ set, meaning Barristers from several different fields practice from there. She specialises in Regulatory , Public and Criminal Law. She is currently on a secondment to the Bank of England.
Before coming to the Bar, she studied English Language and Literature at King’s College London. She took a gap year after her degree, in which she did a series of “mini pupillages” (work experience shadowing barristers in court), completed work experience in the Houses of Parliament and did some travelling. During that year, Yasmin decided that she wanted to become a barrister.
She won a scholarship from The Honourable Society of the Middle Temple to fund her Graduate Diploma in Law (the ‘GDL’ – this is the course for non-law graduates who want to convert to Law). After completing the GDL part-time over two years, she worked for a law firm as a court advocate. She also spent some time working in the British Embassy in Moscow.
Yasmin won another scholarship from Middle Temple and a scholarship from the University of Law to fund her Bar Course (the course that enables you to be called to the Bar and practice as a barrister in England and Wales). She secured pupillage whilst studying on the Bar Course (‘pupillage’ is the training a barrister needs to complete in order to practice). She was called to the Bar by Middle Temple 10 days after starting her pupillage, and 60 years after her Grandfather was called to the Bar in the same hall.