Custody Time Limits: Lord Chief Justice hands down judgment in judicial review of HHJ Raynor in R v Tesfa Young-Williams

A Divisional Court, presided over by the Lord Chief Justice, has today handed down judgment in R (Director of Public Prosecutions) v. Woolwich Crown Court [2020] EWHC 3243 (Admin) which concerns the regime for extending custody time limits in criminal trials during the pandemic. The case develops a number of principles which are important for defence practitioners.

The case considered two applications for judicial review: the first case was brought by the Director of Public Prosecutions in relation to the decision of HHJ Raynor on 8 September 2020 to refuse to extend custody time limits in the case of R v. Tesfa Young Williams. In that case, HHJ Raynor concluded that there was no ‘good and sufficient cause’ to extend the custody time limit due to systemic failings in the Government’s response to the pandemic within the criminal justice system, including: a lack of sufficient funds, a lack of Nightingale Courts and the unlikelihood of the HMCTS Recovery Plan reducing the backlog of cases. The second case was an unrelated application for judicial review relating to a decision of the Central Criminal Court to extend a custody time limit.

The cases were joined and the Divisional Court considered the correct approach in the criminal courts to applications to extend custody time limits during the Covid-19 pandemic. In the case involving Tesfa Young-Williams, the Divisional Court granted judicial review and declaratory relief on the basis that HHJ Raynor’s findings about a ‘systemic failure’ were wrong. Despite allowing judicial review, the Divisional Court made a number of important observations about the test to be applied under s.22(3)(iii) of the Prosecution of Offences Act 1985 (i.e. ‘good and sufficient cause’).

Of significance for defence practitioners is that the Court has made clear that there can be no ‘routine’ approach and that ‘sufficiency’ must be scrutinised even if the pandemic is a ‘good’ reason for extending the custody time limit. Further, the criteria set out by the Court relating to defendants’ circumstances points towards the relevance of ‘proportionality’, based on the likely sentence:

The principles set out by the Court are:

  • Delay attributable to the pandemic, which means that it is neither practicable nor safe to hold the trial in question within the CTL, provides a good cause for an extension.

  • Whether it also provides a sufficient cause depends on an examination of the individual facts of the case and of the defendant in question. 

  • No case should be regarded as ‘routine’.

  • The normal requirements of exploring administratively whether a trial can be brought on elsewhere within the CTL should be followed; so too whether any non-custody cases listed for hearing can be vacated to enable a custody case to come into the list. 

  • If practical arrangements cannot be made, it does not follow that it will be appropriate to extend the CTL in every case even though the need to delay a trial will be clear.  In some cases, a defendant should be released subject to exacting bail conditions. 

Factors which may come into play include:

  • The likely duration of the delay before trial;

  • Whether there has been any previous extension of the CTL;

  • The age and antecedents of the defendant

  • The likely sentence in the event of conviction. A defendant should rarely be kept in custody if he had served, or come close to serving, the likely sentence were he convicted.

  • The underlying reasons why bail was refused

  • Any particular vulnerabilities of the defendant which make remand in custody particularly difficult.

  • In multi-handed trials, consideration should be given by the parties and the court to whether delay could be reduced by separate trials.

  • The burden is on the prosecution to satisfy the statutory criteria for the granting of an extension.  No formal evidence about the impact of the pandemic will be needed in the light of the publicly available material and this judgment.

  • Any extension of a CTL should be for a comparatively short period, generally not exceeding about 3 months, so that the court retains the power to review the position in the light of changing circumstances. 

In DPP v. Woolwich Crown Court, Tesfa Young-Williams was represented by Kate O’Raghallaigh, who was instructed by Emma Sackville at Morrison Spowart.  

To access the judgment, click here.