Children exempted from extended custody time limits following legal challenge

Today the Government has announced that children will be exempt from the recent extension to custody time limits following a legal challenge from Just for Kids law to the lawfulness of the Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 2020.

The Regulations, which came into force on 28 September 2020, extended the standard custody time limit in the Crown Court from 182 days to 238 days, a period of nearly 8 months without automatic judicial oversight. This is the first extension of the custody time limits since they were introduced in 1987. The extension applied to all remanded to custody in the Crown Court on or after 28 September 2020 and made no distinction between the position of children and adults.

On 10 November 2020, Just for Kids Law sent a letter before action challenging the Regulations on the grounds that the failure to exclude children from the extension of custody time limits was unlawful and irrational; in breach of Article 5 and Article 14 ECHR; breached the Public Sector Equality Duty and the duty to consult the Children’s Commissioner given the significant change of policy and its implication for prolonged deprivation of liberty in respect of children on remand.

Following the pre-action correspondence the Ministry of Justice agreed to consult the Children’s Commissioner but denied that the extension of the custody time limits was unlawful as it applied to children. This is despite the Government’s own Equality Impact Assessment found that children and defendants who are Black or an ethnic minority were disproportionately affected by the extension of the Custody Time Limits. According to the Ministry’s own figures, they were more likely to be remanded in custody during any point in Crown Court proceedings even in circumstances where they were ultimately acquitted or received a shorter custodial or community sentence.

On 4 December 2020 Just for Kids Law issued their claim for judicial review in the absence of agreement by the Ministry of Justice to amend the regulations to exclude children from the extended custody time limit. The claim was stayed pending consultation with the Children’s Commissioner.

The announcement today by the Ministry of Justice to introduce a new statutory instrument to exclude children from the extended custody time limit marks an important concession on the Government’s part in protecting children’s rights during the pandemic. A circular has been issued to Her Majesty’s Court Service, the Crown Prosecution Service, and Judicial Office confirming that the regulations exempting children are to be laid in Parliament “as soon as parliamentary time allows”. The circular confirms that the exemption will apply retrospectively to children who were under 18 and had their first appearance for an offence at the Crown Court prior to the laying of the forthcoming regulations. Cases concerning a child defendant where a trial date has already been listed beyond the 182 day period will be required to be relisted to a date within the 182 day CTL. The Ministry of Justice has stated that the Bar Council, the Criminal Bar Association and the Law Society have also been notified of this decision.

Henrietta Hill QC, Shu Shin Luh and Donnchadh Greene of the Public Law team and Joanne Cecil of Garden Court Chambers were instructed by Karolina Rychlicka and Jennifer Twite of Just for Kids Law.

Just for Kids Law’s press release with further details is available here.