1. Detained defendants’ pre-trial protections

When a defendant awaits trial his or her remand into custody engages Article 5(3) of the European Convention on Human Rights (ECHR) which states that: ‘Everyone arrested or detained [for trial] … shall be entitled to trial within a reasonable time or to release pending trial’.

Despite the wording of the article appearing to present these two outcomes as alternatives, the European Court of Human Rights (ECtHR) has determined that an accused person is entitled to trial within a reasonable period and release pending trial unless the prosecuting authorities advance relevant and sufficient reasons for refusing bail.Footnote ⁹

The tension therefore arising in the context of criminal trials is that between a defendant's right under Article 5(3) ECHR, and the prosecution's insistence (where sanctioned by the court) that the accused remain in custody until a trial can commence.Footnote ¹⁰ The Prosecution of Offences Act (POA) 1985, s 22(3) seeks to resolve the tension between the need to detain some defendants pending trial and their rights under the ECHR by enabling the Court to extend the CTL. The power to extend a CTL is provided for by the POA 1985, s 22(3), which states:

No attempt is made here to discuss those cases where it is argued that the prosecution has failed to act with due diligence and expedition. As such, it is unnecessary to address s 22(3)(b). Rather, the discussion herein relates to the provision addressing ‘good and sufficient cause’ to extend CTLs (s 22(3)(a)(iii)). In the context of this paper, this refers to cases which are trial-ready, ie due to begin, but delayed, and the cause of the delay is a conglomeration of Covid-19 restrictions and the measures the government has taken to reduce their adverse impact upon the system. Consequently, s 22(3)(a)(i) and (ii) also have no separate application here. On the CTL principles themselves, it needs to be borne in mind that beyond any finding that there is good and sufficient cause to extend, a free-standing discretion (‘may’) is still available to the judge. Thus, fulfilment of the POA criteria is not conclusive of refusal.Footnote ¹² This residual discretion is an important feature to note in light of subsequent developments arising from the official response to Covid-19 that will be touched upon.

In making an assessment under s 22(3)(a)(iii) as to whether the time a defendant can be detained pre-trial should be extended, a judge must consider the fundamental principles underpinning the provisions in the POA 1985.Footnote ¹³ These are: (i) to ensure that the periods for which unconvicted defendants are held in custody are as short as is reasonably and practically possible; (ii) to oblige the prosecution to prepare cases for trial with due diligence and expedition; and (iii) to give the court power to control any extension of the maximum period for which any defendant may be held awaiting trial.

Despite this guiding framework, the current challenge facing any judge who is making a determination on CTLs under the POA 1985, is the vexed question as to when a trial can be reasonably accommodated in light of the voluminous case backlog that has handicapped courts in getting cases to trial before CTLs expire.

To put the problem in context, before Covid-19 struck there was a backlog of some 37,500 Crown Court cases. It is estimated that there are more than 46,000 such cases awaiting trial.Footnote ¹⁴ In ordinary circumstances then, the backlog was already placing enormous pressure upon the system, with many cases likely to experience a protracted journey through the courts. While Covid-19 has undoubtedly elevated the backlog figure, it is a non-sequitur to say the pandemic is the cause of the case logjam, which far pre-dated the worldwide health emergency.Footnote ¹⁵ Despite this, the governmentFootnote ¹⁶ has implemented major alterations to the criminal process,Footnote ¹⁷ including CTLs, by statutory instrument and without proper parliamentary debate.Footnote ¹⁸ However, far from ‘ensuring that justice continues to be delivered’,Footnote ¹⁹ these measures, which rely on support from the senior judiciary, will augment the challenge of case disposal and weaken the position of defendants.

2. The official response to Covid

On 17 March 2020 Lord Burnett LCJ issued a public message which spoke to the major disruption which lay ahead:

Following this guidance, on 23 March 2020, the Lord Chief Justice pronounced that no new trials would commence until further notice.Footnote ²⁰ Whilst the LCJ's statement neutralised the defence argument that protection of the right to a fair and speedy trial ought, at least, to trigger the start of the case, the issue as to CTLs remained very much alive with trials now in abeyance.

In this regard, the ‘Coronavirus Crisis Protocol for the Effective Handling of Custody Time Limit Cases’ (the Protocol) was issued by the senior presiding judge, HM Courts and Tribunals Service and the Crown Prosecution Service on 7 April 2020,Footnote ²¹ which sought to give concrete guidance to judges tasked with safeguarding a defendant's right not to be detained for periods longer than the legal limit. While the protocol did not have the force of law,Footnote ²² its purpose was set out in the following language: ‘to set a temporary framework during the Coronavirus pandemic for the efficient and expeditious handling of cases that involve a Custody Time Limit (CTL). It does not create legal obligations or restrictions on (any) party’.Footnote ²³ Although the Protocol was also said not to ‘override independent judicial discretion’ its effect was precisely that, when it stated:

Following its issuance, the Protocol had a dual effect. First, the language realistically deprived judges of the entitlement to find that there was no ‘good’ and ‘sufficient’ cause to extend a CTL. Secondly, the content of the Protocol, with its omnibus ruling, also heavily influenced the exercise of a judge's residual discretion so as to truly scupper a favourable exercise of it. The inevitable corollary of tying judges to this government advice was, to adopt the language of the ECtHR,Footnote ²⁵ quasi-automatic prolongation of detention.Footnote ²⁶ In other words, an extension of the CTL was deemed to be the correct approach to take in every case. It is not clear then how this judicial diktat was to be reconciled with the Protocol's additional remark that ‘every case must be decided on its own merit’, especially when the entire purpose of the Protocol was to underscore that the global pandemic is an exceptional situation thereby satisfying the statutory criteria under the POA. Indeed, the likelihood that judicial discretion in such matters would take a backseat is evidenced by the dearth of decisions where an extension was refused in terms that brought it into conflict with the Protocol.Footnote ²⁷ As such, this Protocol encouraged, if not overtly mandated, a non-discretionary approach to CTL extensions in contradistinction to the statutory language of the POA 1985, s 23(3).Footnote ²⁸

While the persuasive force of this approach was arguably greatest while jury trials were prevented from taking place, they partly resumed on 18 May 2020Footnote ²⁹ in a limited capacity on account of the need for proceedings to adhere to strict social-distancing.Footnote ³⁰ The Protocol remained in place until 2 September 2020, when the President of the Queen's Bench Division and the Senior Presiding Judge withdrew it on the basis that it was ‘out of date and has served its purpose’. Their reasoning largely reflected the fact that jury trials had grown in sufficient number since their recommencement. Despite the situation in Crown Courts having ‘changed significantly’, judicial leaders were able to give continued effect to the Protocol by pronouncing that it ‘reflected much that has become good practice’. On their view ‘[a]rrangements that have made the listing of CTL extension applications straightforward and convenient will, no doubt, continue, wherever practical’. Crucially, they highlighted ‘[d]ecisions [as to CTL extensions] will continue to be made … with the restricted availability of courts an important factor’.

This last point requires underscoring because it endorsed continued detention of unconvicted defendants on the basis of what are essentially administrative considerations, dependent on the availability of resources. Plainly, in ordinary circumstances, this would stand in stark contrast to the protection afforded under Article 5(3) ECHR, and so the government's framing of the Covid-19 situation alongside the criminal courts reception of this situation warrants further examination.

3. Shifting goal posts

To minimise the frequency of CTLs being challenged in the courts, the Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 2020Footnote ³¹ (the Regulations) came into force on 28 September 2020, extending the CTLs in the Crown Court by two months (to 238 days).

In introducing the ‘temporary legislation’ the government issued a press release on 6 September 2020. Implausibly, it explained that increasing the period of pre-trial detention to nine months, and therefore, the length of the case, was part of a package of measures (termed the ‘Criminal Courts Recovery Plan’)Footnote ³² that would assist in ‘reducing delays and delivering speedier justice for all’.Footnote ³³ A number of questions flow from this claim. Most prominently, if the Protocol that had been in place since April ‘reflected much that has become good practice’, and CTL extensions would ‘continue to be made on a case by case basis’ why was it necessary to sanction a further and universal increase of nearly one third in the duration courts can detain an accused pre-trial?Footnote ³⁴ Not only does this mean that CTLs are being used to incarcerate unconvicted people for far longer than the regime ever envisaged (cf ‘short as is reasonably and practically possible’), but allowance for two further months of delay undermines the prosecution requirement to ‘prepare cases for trial with due diligence and expedition’. It is axiomatic that prosecutorial urgency impacts profoundly upon the ability of the defence to understand and prepare for the scope of the allegation it faces. The relevant maximum custody period is there to alert the Prosecution that time is moving on and areas such as disclosure require prompt attention. The appalling track record of the policeFootnote ³⁵ and CPSFootnote ³⁶ in recent years with regard to this aspect of the criminal process does not instil confidence that extended custody periods will therefore lead to speedier justice. In reality, the greater the period in which it has to investigate and prepare its cases, the more inefficient prosecutorial processes are likely to become.Footnote ³⁷

Aside from this increased threat to the fairness of criminal trials, there is a further abiding danger that defendants now face. Although said to be temporary,Footnote ³⁸ the measure to extend CTLs has permanent effect on the liberty of those currently governed by this regime who are subsequently acquitted, for the simple reason there is no recourse available to them for being detained. Compounding this is a heightened risk of wrongful convictions where defendants weigh up the inducement of early release in the event of a confession, a rational calculation in the eyes of those facing potential penalties far less severe than the strictures of indefinite detention.Footnote ³⁹

This curtailing of an accused's liberty, and impinging upon their freedom as to plea, was achieved by way of statutory instrument, shunning ordinary channels of Parliamentary scrutiny. The lack of parliamentary oversight allowed the Justice Secretary to impose the two-month extension to the custody period upon reasoning that is highly questionable. Two reasons to support its introduction were offered. It was said to be necessary because ‘[i]t addresses the delays to jury trials that have been caused by the pandemic’. This rests on a misdirection as to the provenance of the backlog. Whilst the stoppage of jury trials for less than two months plainly aggravated attempts to tackle the swell of case numbers, courtroom delays are more attributable to longstanding underfunding of the system.Footnote ⁴⁰

Secondly, the government explained the ‘moves will protect victims and keep dangerous criminals off our streets’.Footnote ⁴¹ As in other areas of the criminal process,Footnote ⁴² this reasoning not only subverts the foundational principle underpinning custody time limits,Footnote ⁴³ which is to ‘protect the liberty of the citizen, assumed at the present stage not to be guilty’Footnote ⁴⁴ but it is also wrongheaded because the explicit priority given to victims ignores that many will be adversely affected by longer delays – some significantly so.Footnote ⁴⁵ Furthermore, while there will be cases where witness intimidation or the prospect of further violence loom large, these do not represent the majority filtering through the system. In this respect, a less draconian non-custodial approach involving preventative measures, including electronic tags, is surely to be preferred.Footnote ⁴⁶

4. A limit too far

One significant CTL ruling (Young-Williams)Footnote ⁴⁷ favouring this approach and which coincided with the announcement of the new legislation was heard at Woolwich Crown Court before HHJ Raynor on 8 September 2020.

Its significance lies in the judge's appraisal of two politically sensitive issues. First, whether current systemic problems (ie the backlog and consequent inability to fix a trial date) which necessitate repeat CTL extensions stem from ‘a lack of money provided by Parliament’. Secondly, whether the steps proposed by government ‘to alleviate the situation appear to have a prospect of success’.Footnote ⁴⁸

Young-Williams involved a 19 year-old defendant charged with several counts of serious drug offences (contrary to s 4(3)(b) and 5(3) of the Misuse of Drugs Act 1971), having an offensive weapon (s 1(1) of the Prevention of Crime Act 1953) and possession of criminal property (cash) (s 329(1)(c) of the Proceeds of Crime Act 2002).

Having been remanded into custody on 23 October 2019, the prosecution sought a first extension of his CTL on 16 April 2020. A second extension was agreed to on 17 June 2020. On 16 July 2020 a third extension was granted until 10 September 2020. A hearing for the prosecution's fourth application to extend the time limit was dealt with on 8 September 2020 at which point the defendant had been in custody for 321 days (amounting to 139 days beyond the custody limit that applied to him under the old rules).Footnote ⁴⁹

The ruling issued on that date by HHJ Raynor was forthright in its criticism of the government's administration of criminal justice in light of its impact upon the CTL regime, the outcome being that the prosecution's fourth application to extend the custody period was refused and the defendant was released from prison on condition that he wore an electronic tag.

Beyond any affirmation of the principle of individual freedom, the basis upon which Young-Williams was released is notable because the ruling had seismic implications for countless other CTL cases. In declaring that a lack of court capacity (which meant defendants would not face trial until the following year or later) was an unacceptable basis upon which to extend custody time limits, HHJ Raynor had opened a procedural Pandora's box that no doubt gave great anxiety to the Ministry of Justice (MoJ) and HM Courts and Tribunals Service (HMCTS). In future, other defendants approaching the expiration of their CTL would be able to canvass identical arguments when resisting applications to extend, with the upshot that many would be released from detention to await their trial.

To fully appreciate the significance of the judicial intervention that followed, it is necessary to set out the route by which HHJ Raynor arrived at his decision. Having disregarded the validity of the Protocol that had been issued on 7 April 2020, the judge still held that coronavirus amounted to an ‘exceptional situation’.Footnote ⁵⁰ Judge Raynor then drew a distinction between ‘routine’ cases and ‘exceptional’ cases and held that coronavirus, by itself, did not automatically turn the former into the latter. This meant that although system delay had become inbuilt following the pandemic (ie routine), extensions ought not to be allowed for this reason alone. The effect of this ruling was that all future prosecution applications to extend a CTL could no longer exclusively rely on the existence of the virus in arguing there was ‘good’ and ‘sufficient’ cause to, as required by s 22(3) POA 1985. It was necessary for any judge to go a step further to examine the evidence ‘of what measures MoJ/HMCTS considered and/or actually implemented – so as to justify the non-availability of a trial date’.Footnote ⁵¹

In determining whether the balance favoured an extension, the judge explained he was required to weigh up the level (or lack) of funding from the MoJ to tackle the backlog (and provide trials within the CTLs) with the likely efficacy of the government's strategy in place under the umbrella ‘recovery plan’. In noting that these issues are interwoven, HHJ Raynor held the recovery plan was not adequate to meet the crisis.

HHJ Raynor took it upon himself (ie ‘in the absence of evidence from a senior MoJ/HMCTS official’)Footnote ⁵² to review the available material, in great detail, of the government's efforts (concrete and in proposal form) to tackle the case backlog, including Nightingale Courts, £80 million additional expenditure (which he deemed too little) and 1,600 new staff (whose introduction he said was too late).Footnote ⁵³

As to the use of the Nightingale Courts, the judge was hardly inviting controversy by highlighting both the inadequate number on hand, and their ineffectualness.Footnote ⁵⁴ As to the single emergency court set up in London, HHJ Raynor explained that much of its caseload had merely been diverted from another local court. Accordingly, ‘[it] was not, for a period, providing any significant additional capacity’.Footnote ⁵⁵

In concluding that there was overarching ‘systemic failure’, the judge held that the core measures that had been taken by MoJ/HMCTS brought the state into conflict with its obligations under the ECHR, namely its duty to try unconvicted defendants within a reasonable time, irrespective of whether the appropriate test is ‘regardless of cost’ or even a lesser requirement of ‘high cost’ or ‘cost proportionate to the exceptional situation’.

5. The ‘administration’ and ‘justice’ functions of the judiciary

Two days prior to Young-Williams, the government announced that it would increase CTLs by two months. As such, the government faced what it no doubt saw as the politically invidious optics of ‘dangerous criminals’Footnote ⁵⁶ being released from prison on account of its inability to manage the case backlog. It also had to contend with HHJ Raynor's excoriating judgment on the governmental attempts to manage the criminal justice system during Covid-19. In fact, this represented Judge Raynor's second refusal to extend custody time limits,Footnote ⁵⁷ although it was not until Young-Williams that media attention was excited.Footnote ⁵⁸ Unable to shed its ostensible commitment to the independence of the judiciary by intervening directly, the government was able to rely instead on the senior judiciary to push forward its agenda.Footnote ⁵⁹ The exercise in damage limitation that followed was swift.

Having comported himself with a critical eye over the government's recovery plan, HHJ Raynor's rulings in favour of non-extension were plainly anathema to the message that ‘[t]hroughout the pandemic this government has taken the necessary steps to protect the public while ensuring that justice continues to be delivered’.Footnote ⁶⁰ Although he had displayed a level of independence in close accordance to the traditional encomium surrounding his judicial role (ie willing to ‘stand between the subject and any attempted encroachments on his liberty by the executive’Footnote ⁶¹), HHJ Raynor's involvement with CTL applications was brought to an abrupt end. Not only was the judge stripped of the opportunity to handle the CTL hearing affecting his own trial but all CTL matters thereafter.

In a remarkable chain of events, HHJ Raynor found himself bumped from a hearing scheduled for the following day.Footnote ⁶² The judge had been due to hear counsel's arguments on a third CTL extension in relation to a different defendant. That case (R v P and Others) was in the event listed instead for a mention during which it was announced to all parties that a decision had been taken by the Senior Presiding Judge that a High Court judge would be drafted in to hear the CTL extension application instead.Footnote ⁶³

The accelerated nature of his substitution, it is submitted, could only have been brought about by his stance on what he ruled to be bungled and inadequate attempts by government to deliver criminal justice against a background of Covid-19. It also follows that the judge's unsparing appraisal of HMCTS in Young-Williams gave an air of predictability to the likely outcome of any subsequent CTL application he adjudicated upon (especially one the following day which sought to challenge the adequacy of HMCTS’ response to date to the global pandemic). Put bluntly, had HHJ Raynor been allowed to hear further applications to extend CTLs, he would have set an ongoing (persuasive albeit non-binding) precedent of releasing defendants out of custody with an impression likely to surface that government was at fault. The implications of other judges adopting this sea-change of opinion towards further extensions would, inevitably, have brought much unwanted public attention to a criminal justice system already in disarray.

When arguments on CTL extensions were eventually heard in R v P and Others, counsel for the defence ventilated a litany of concerns arising from the hurried and ‘highly irregular’Footnote ⁶⁴ removal of HHJ Raynor and the shuffling in of the Presiding Judge of the South East Circuit, Mrs Justice Whipple:

With this perception openly circulating,Footnote ⁶⁵ an application by the defence was made for Mrs Justice Whipple to recuse herself from hearing the CTL extension application. Rejecting any suggestion of actual or perceived bias on account of her alleged links to HMCTS, the Presiding Judge refused the application and found herself able to adjudicate the matter with ‘impartiality and objectivity, on the basis of evidence and argument put before [her]’.Footnote ⁶⁶

Cognisant of the growing ‘press and public interest’ and that ‘the decision in this case has the potential to be of wider interest beyond this case’, Whipple J used the occasion to unbuckle any further threat of suggestion that an Executive-Judicial alliance prevented senior judicial criticism of the government's recovery plan:

Whilst this line of argument may appeal to a pragmatic understanding of the line drawn between judges who are required to rule upon government policy they simultaneously have to administer, it circumvents the more awkward truth that HHJ Raynor's decision, if more widely adopted, would have likely resulted in the CTL regime becoming unworkable.

In light of the inevitable consequences for the defendant of the switching out of Judge Raynor for another more senior judge, and, to rebut the serious but putatively well-founded allegation that the court was ‘forum-shopping’ the Court's quick judicial replacement required a credible explanation. The only one offered by Whipple J was that ‘the SPJ considered this application for CTL extension to be suitable for determination by a High Court Judge, and indeed a High Court Judge with some experience of running the criminal courts gained from being a presider’.Footnote ⁶⁷

Setting aside the insufficiency of the proposition – one an anathema to ordinary practice expectations – that it is necessary for a High Court judge to deal with a day-to-day application such as a CTL, the supplementary reason regarding experience running courts invites closer inspection. Whipple J's underlying claim would appear to be: the pandemic makes these exceptional times; this raises the complexity of the CTL issue: and, if judges are going to get into the realm of criminal justice system funding where criticism of the government may lie, it has to be a judge who is familiar with attempts made to address the problems and understands what resources are available.

In this regard, the importance of the judicial role in its oversight of the executive was made explicit by Lord Woolf in the leading CTL authority (Gibson Footnote ⁶⁸):

This dictum reinforces the importance of a judge being able to apply a rigorous level of scrutiny to situations where a lack of resources to hold trials necessitates a CTL extension. In this sense, that part of Whipple J's justification for removing HHJ Raynor, focused on the need for a judge to have sufficient experience of the system, is surely a valid one. However, not only does the claim of a need for ‘some experience’, beyond that of an experienced circuit judge such as HHJ Raynor,Footnote ⁷⁰ flatly contradict Whipple J's earlier statement that ‘every judge in the land knows about the recovery plan’ but it is equally curious that there is no evidence of similar ‘removal efforts’ elsewhere with judges less reproving of government.

With full knowledge that her seniority would trounce the appeal of HHJ Raynor's ‘first-hand experiences at the coalface since lockdown began’,Footnote ⁷¹ Mrs Justice Whipple presented an entirely different picture of the government's handling of the court crisis.Footnote ⁷² The position taken was one of staunch optimism: ‘There is a plan’.Footnote ⁷³ The learned judge felt ‘[t]he planned steps have a prospect of success’.Footnote ⁷⁴ Evidence of their implementation was ‘all around’.Footnote ⁷⁵ Trial capacity was ‘being undertaken at speed and on large scale’. And although Whipple J conceded ‘there is still a very great deal to do’, she had ‘not been persuaded that there is substance in [counsel's] criticisms of HMCTS’Footnote ⁷⁶ nor by HHJ Raynor's assessment that ‘the plan is too little too late or that there is at present a systemic failure’.Footnote ⁷⁷

While it is correct to say that HHJ Raynor's decision was largely anomalous,Footnote ⁷⁸ mandated uniformity in decision-making on CTLs should cause greater alarm.Footnote ⁷⁹ Whereas the large majority of CTL rulings follow the ‘good practice’ laid down by the now-defunct Protocol, namely that the ‘global pandemic is… a good and sufficient cause to extend CTLs’,Footnote ⁸⁰ the unhesitating manner in which a critical judicial voice was extinguished reveals how the senior judiciary is prepared to set its face against admitting the possibility of governmental ineptitude.Footnote ⁸¹

A plausible corollary of the decision in R v P and Others, therefore, is that CTL decisions which risk deviating from ‘good practice’ by non-conformity (ie presenting a negative view of the executive's response to the Covid-19 crisis) will be siphoned off to those in senior leadership roles, who, it is said, are in a more suitable position to give an appraisal of the government's efforts. The evidence suggests that the outcome here will be all ‘one way’.

If Whipple J had truly been privy to a perspective unseen by HHJ Raynor, this raises additional questions relating to data transparency, allowing one to hoist the concern that information bearing crucially upon the liberty of the individual is only entrusted to the few,Footnote ⁸² which risks offending the principle of ‘open justice’. The implications of a power to encroach upon the freedom of the individual being centralised in the hands of a small circle of senior judges is not an abstract concern. Indeed, in allowing the prosecution to extend the CTL for a third time, Mrs Justice Whipple recognised that the defendant's trial would not be heard ‘any earlier than January 2021’ which meant the defendant would be in pre-trial detention for a total of 16 and a half months.Footnote ⁸³ On the evidence of this alone, unconvicted defendants are now being detained for periods of time that were never envisaged under the original CTL regulations by high-ranking members of the judiciary. Their charitable impression of HMCTS during Covid-19, and, concomitantly, their drive to silence the appearance of dissent, speaks to their capacity to deflect what Stephen Sedley described ‘the Orwellian boot’.Footnote ⁸⁴ While politically convenient, Whipple J's rejection of the contention that systemic failure has befallen criminal justice will make future challenge to CTL extensions highly unlikely to succeed, casting further systemic uncertainty over the already weakened position of defendants and a pall over the once venerated, but now vulnerable, presumption of innocence.

6. Judicial mismanagement of CTL procedures

In this section it will be argued that the approach endorsed in R v P and Others, allowing for the substitution of an experienced circuit judge with a High Court judge, is not only misconceived for the reasons discussed but also risks introducing harmful inconsistency on fundamental principles that apply to CTL extensions.

In this regard, Whipple J's claim that ‘some experience of running the criminal courts gained from being a presider’ was needed for a CTL extension hearing and therefore legitimated the removal of HHJ Raynor from his own, flies in the face of the approach laid down by the CTL authorities requiring that evidence is given on oath by HMCTS when a determination is being made as to the adequacy (or otherwise) of its efforts in managing the case flow of criminal courts. It is submitted that this approach is the correct one to take, thereby aiding any evidential gap that may arise with judges considered to have less experience of running courts during Covid-19. The existence of legal authority on this point aside, to argue otherwise would lead to the non-sensical inference that the vast majority of judges in England and Wales lacked the capability to review and decide upon testimonial evidence, calling into question their very competence more generally.

That said, the line of authority spelling out the correct procedure to be taken on this matter has compelling force on its own. In delivering his damning indictment of the government's handling of the criminal justice system during Covid-19, HHJ Raynor drew attention to a series of cases, two of which are of importance here: R (McAuley) v Crown Court at Coventry (Practice Note) Footnote ⁸⁵ and R (Raeside) v Crown Court at Luton.Footnote ⁸⁶

McAuley is instructive not least because of the explicit terms in which the issue of resource constraints impinging upon the custody period was discussed:

The President of the Queen's Bench Division went on to say if there were a systemic problem with courtroom availability, the Secretary of State must amend the regulations and seek the approval of parliament:

Similarly, Raeside confirmed where a lack of a courtroom was a reason given for a CTL extension being necessary, the court needed to hear evidence on oath.Footnote ⁸⁹

In skirting any need ‘to give HMCTS the opportunity to answer those criticisms before coming to any conclusions’, Whipple J instead drew upon her own experienceFootnote ⁹⁰ to fill the ‘evidential gap’Footnote ⁹¹ and, in noting that counsel for the defence (P) had argued that it was ‘for the CPS to invite HMCTS to participate’Footnote ⁹² remarked dismissively: ‘I am not so sure about that’.Footnote ⁹³ To explain her doubt as to the issue Whipple J continued:

The reasoning employed here, which implies that the validity of the ratio from McAuley in this context is baseless, represents a worrying example of judicial obfuscation in an area of the law that, fundamentally, dilutes defendant protections. Remarkably, this interpretation of a leading CTL authority rests on a misconception. In McAuley it was the prosecution seeking a CTL extension having been notified by the Court that there was no judge and/or courtroom available. The Divisional Court did not say it was therefore the defence's responsibility to call evidence to prove that HMCTS were at fault or that there was a systemic failure, nor should it be. In any event, the practicalities of this alone render the burden being placed on the defence unworkable, although this, in the scheme of relevant considerations, is low down.

The prospect of an accused's freedom being overridden by misinterpretation of the law is as concerning as it is surprising, not least because it comes from a senior member of the judiciary who outflanked a circuit judge in his own case on the ground that they were the more appropriate person to handle such matters. This leads to a further powerful argument why having the most senior judges in exclusive control of decision-making in the arena of CTLs is, counter-intuitively, problematic.

Bearing in mind that Mrs Justice Whipple is one of the four presiders on the South East Circuit, to say the Criminal Courts Recovery Plan is not her ‘cause’ is to downplay her key role in how the courts have functioned during the Covid-19 crisis. In light of Whipple J's leadership position, one might be forgiven for struggling to envisage how a judge associated with the administration of justice at the level she operates would ever ‘conclude that the position has become one where there is a systemic failure to be able to provide for trials within the custody time limits’.Footnote ⁹⁵

It is no surprise, therefore, that there is scant regard in R v P and Others given to the need to call evidence as to the efficacy of the government's plans which could be tested. Instead, observations aimed at those involved in keeping the courts running were couched in affirmative language. The manner in which serious legal argument, bearing upon the liberty of the individual, is glided over (‘I do not need to decide the point’), in exchange for approbation for the wider system underscores the undesirable tension now permeating the CTL regime which arises from a judicial approach that feels more akin to a self-certification process (‘…if I had found any attraction in [defence counsel's] submissions, I would have felt it necessary, as a matter of basic fairness, to give HMCTS the opportunity to answer those criticisms’).Footnote ⁹⁶ With no judicial will on display in Re P and Others to require a full examination of evidence from HMCTS on oath, it would appear fanciful to imagine that the predicament of unconvicted defendants facing long-distanced trial dates will improve.

In spite of this, affording circuit judges the authority to rule upon CTL extensions is surely sensible, transparent and a fair contingency where links between the senior judiciary and HMCTS mean impartiality may be seen to be open to doubt. From a practical standpoint too, widening the pool of judges to oversee a commonplace (but vital) aspect of the criminal process would relieve pressure from the upper ranks of the judiciary at a time when workloads have been intensified by the backlog crisis in the courts. As such, the current move to restrict those with standing to hear CTL applications to a coterie of senior judges, as appears to be the direction of travel following R v P and Others, is an irrational one.

7. A line in the sand: R v Woolwich CC, ex p DPP

Developments since R v P and Others show that the Senior Judiciary have helped reduce, if not eliminate, governmental accountability for the criminal case backlog. Despite Whipple J's best efforts to dampen the impact of Young-Williams by presenting an ‘informed’ perspective of HMCTS's efforts to alleviate the backlog during the pandemic, in contradistinction to that of HHJ Raynor, the High Court judge did not explicitly reject Young-Williams as having no authoritative status (the matter at hand being a CTL extension application rather than a legal challenge on the substantive content of Judge Raynor's decision).

Instead, this task was left to the DPP who pursued a claim for judicial review of HHJ Raynor's finding of systemic failure in the court system, with HMCTS being principally at fault. The Divisional Court's judgment in R v Woolwich CC, ex p DPP Footnote ⁹⁷ (ex p DPP) that followed is significant in this context because it represents the Senior Judiciary seeking to draw a line under the matter of Young-Williams, in a way that curtails examination of the government's management of criminal courts during the pandemic.

The judgment's importance in this respect is two-fold. First, for its declaration that HHJ Raynor's decision was unlawful. Secondly, for the manner in which it sets out guidance on the future approach to be taken at CTL applications during the pandemic. On this first point, it is important to underscore that the argument made here does not depend on the substantive issue, ie whether the government's efforts during Covid-19 are ‘too little too late’.Footnote ⁹⁸ As will be discussed, this latest development does not detract from the wider points raised here as to the integrity of judicial decision-making under the CTL regime and, concomitantly, threats to the presumption of innocence.

By way of summary, the LCJ (sitting with Holroyde LJ) took issue with HHJ Raynor's position on the difficulties surrounding the CTL regime, namely that ‘at the heart of the problem in restarting and then increasing the volumes of jury trials was a lack of funding by HMCTS and the Ministry of Justice’.Footnote ⁹⁹ They therefore rejected Judge Raynor's finding that underfunding had resulted in ‘broad systemic failure by both to provide for jury trials within CTLs’.Footnote ¹⁰⁰ It was explained that Judge Raynor had erred in two main respects. As to the issue of funding, HHJ Raynor had misunderstood that ‘[t]he problems in accelerating the capacity of the system to hold jury trials have been practical and logistical, rather than financial’,Footnote ¹⁰¹ a finding supported by, it was said, ‘materials publicly available describing the efforts made by the Working Group and HMCTS to get jury trials up and running after lockdown at the end of March 2020’.Footnote ¹⁰²

Respectfully, this dismissive reasoning masks the uncomfortable truth that successive governments over the past decade have systematically stripped all spare capacity out of the justice system, leaving the dwindling criminal court estate woefully under-resourced during the pandemic. The Court's unwillingness to recognise the nexus between historic underfunding and current courtroom capacity is, accordingly, more than questionable.

As to the matter of Judge Raynor's judicial method in determining that governmental efforts to resolve the criminal court backlog were inadequate, the learned judges were critical of his reliance on ‘material which has not been subject to any evidence or argument’.Footnote ¹⁰³ Ex p McDonald makes clear here that evidence will not always be necessary in CTL applications; rather, ‘[w]hether evidence will be necessary, or whether the court can rely on information supplied by counsel, will depend on the nature and extent of any controversy… It is, however, always for the court and not for the parties to be satisfied’.Footnote ¹⁰⁴ In this regard, it is submitted that the Court in ex p DPP did not give sufficient weight to the pressing predicament in which HHJ Raynor found himself; the prosecutor who had attended the CTL hearing in Young-Williams did so ‘[w]ithout evidence from an HMCTS senior manager’.Footnote ¹⁰⁵ Plainly, this was not a hearing that could be further adjourned to await evidence, without the CTL threshold being passed.

Furthermore, bearing in mind that the liberty of a legally innocent defendant was at stake, HHJ Raynor's self-directed efforts to determine whether continued detention was lawful in the absence of any evidence from HMCTS was arguably in line with his obligations under the Criminal Procedure Rules (CrimPR).Footnote ¹⁰⁶ This line of argument operates on the basis that a judge, when addressing his mind to the question of bail (with which there is procedural overlap with the POA 1985, discussed above), is subject to the ‘overriding objective’ (rule 1.1) which mandates that all parties (including the judge) ensure ‘appropriate information is available to court’ (rule 1.1.(2)(f)), including where there has been a ‘significant failure’ (rule 1.2.(1)(c)) of one party to comply with the CrimPR.Footnote ¹⁰⁷

In turning to the second notable and interlinked aspect of ex p DPP, the position canvassed throughout this paper as to the requirement of evidence in CTL hearings was endorsed by the LCJ: custody decisions must be based on evidence led by the prosecution (in this context sourced from HMCTS). Yet in spite of the authoritative restatement of the CTL case law on this central point, the liberty of untried defendants under the CTL regime remains precarious. Within the same breath, the LCJ removed the requirement of evidence altogether on the specific issue of the performance of government in ensuring adequate court capacity during the health crisis, when he stated:

This judgment therefore cements the effect of the original Protocol to the extent that delay attributable to the pandemic, which means that it is neither practicable nor safe to hold a trial within the CTL, provides a ‘good cause’ to extend the period. The upshot of this is that the ability of defence counsel to forensically examine the government's management of criminal courts during the pandemic has been neutered.

It is of further concern that the LCJ's declaration in ex p DPP is premised on the empirically unsound notion (one mirrored by Whipple J in R v P and Others)Footnote ¹⁰⁹ that the government's efforts to lessen the problem of courtroom capacity are universally felt. As the criminal courts’ own rulings attest,Footnote ¹¹⁰ regional differentials of government strategy exist, with some court circuits less affected than others, demonstrating that a blanket approach is as objectionable as it had become under the Protocol. Where ex p DPP differs from that early instrument, is on the second limb of the POA 1985, s 22(3)(a)(iii).

To mitigate the harshness that inevitably results from untried defendants being subject to automatic prolonged custody extensions, the LCJ stipulated: ‘[w]hether it provides a sufficient cause depends on an examination of the individual facts of the case and of the defendant in question’.Footnote ¹¹¹ In making this assessment, the judgment provides a list of factors for judges to take into account (eg ‘the likely duration of the delay before trial; whether there has been any previous extension of the CTL’ and the ‘likely sentence in the event of conviction’).

Although, then, the approach following ex p DPP might offer some greater hope that unconvicted defendants will be released on bail, the ‘non-exhaustive principles’ offered by the LCJ appear to add little, if anything, to the discretionary power already available to those adjudicating upon CTL extensions. Their impact is also heavily conditioned by the prospect that pre-selected panels of judges more executive-aligned in disposition will be making such far-reaching determinations.Footnote ¹¹²