Resuscitating criminal courts after Covid-19: Trialling a cure worse than the disease
| Author | Mike McConville,Luke Marsh |
| Published date | 01 April 2022 |
| Date | 01 April 2022 |
| DOI | 10.1177/13657127211064355 |
| Subject Matter | Articles |
Resuscitating criminal courts
after Covid-19: Trialling a cure
worse than the disease
Mike McConville
University of Nottingham School of Law, Nottingham, UKof Great Britain and Northern Ireland
Luke Marsh
The Chinese University of Hong Kong, Sha Tin, New Territories, Hong Kong
Abstract
AbstractThis article, focusing on the issue of custody time limits litigated under Covid-19 con-
ditions, sets out how reasoned decisions to refuse to extend custody for unconvicted defen-
dants excited the disapproval of senior judges such that fundamental changes were made to
evidence, procedure and proof as well as effecting permanent manipulation of the composition
of the adjudicating panels authorised to deal with such cases. This additionally raises fundamen-
tal questions about the administration and governance of the courts, the independence of the
judiciary in decision-making and the basic utility of the presumption of innocence in such cases.
Keywords
case backlog, custody time limits, judicial independence, presumption of innocence,
unconvicted defendants
Introduction
This article focuses on the role of the senior criminal judiciary in custody cases as revealed by the treat-
ment of untried defendants who find that the courts’inability to provide a trial date has resulted in lengthy
pre-trial detention periods stretching far beyond those envisaged by Parliament when it first enacted the
legislative provisions underpinning the Custody Time Limits (CTL) regime.
While a two-month extension to the legal limit untried persons can be detained pending trial (from 182
days to 238 days) enacted during the pandemic
1
may be objectionable in its own right,
2
this article,
focused upon the Crown Court in England and Wales, argues that this development obscures deeper
Corresponding author:
Luke Marsh, CUHK LAW, Hong Kong SAR.
E-mail: luke.marsh@cuhk.edu.hk
1. This was achieved by way of statutory instrument, amending the CTL regulations on 28 September 2020.
2. See, for example, JUSTICE and Bar Association (2020).
Article
The International Journal of
Evidence & Proof
2022, Vol. 26(2) 103–120
© The Author(s) 2021
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DOI: 10.1177/13657127211064355
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structural forces at work with ramifications for the theory and practice of evidence and proof and for the
integrity of the criminal justice system itself. Since the emergence of Sars CoV-2 (hereinafter corona-
virus/Covid-19), and following a series of significant CTL decisions, unconvicted defendants have
become a vulnerable breed; legally innocent but detained (often) without trial in dangerous conditions.
3
In this article, we analyse the reasoning employed by the senior judiciary to justify a variant-process
arising from the pandemic in terms of evidence, proof and procedure. Our aim is not to question the
merits of the Government’s case-backlog strategy in this regard.
4
Nor do we question the public
health need to suspend jury trials as a result of the pandemic and the resultant unprecedented conse-
quences of securing appropriate social distancing in courtrooms and all parts of Crown Court buildings.
And, finally, we do not question whether individual decisions regarding the extension of custody in the
cases we analyse were correct or not.
The CTL regime: balancing liberty and risk
The principle at common law, in line with Article 5 of the European Convention on Human Rights
(ECHR),
5
is that everyone has a basic right to personal liberty. The general presumption in favour of
liberty is reflected in s. 4 (1) of the Bail Act 1976, which grants a right to bail unless conditions specified
in Schedule 1 to the Act are satisfied. Schedule 1 provides, among other things, that an accused but
unconvicted defendant need not be granted bail if a court is satisfied that there are substantial grounds
for believing that he would, if released on bail (whether subject to conditions or not), fail to surrender
to custody, or commit an offence while on bail, or interfere with witnesses or otherwise obstruct the
course of justice. In taking decisions on the granting of bail the court is required by paragraph 9 of
the Schedule to have regard to specified considerations as appear to it to be relevant, such as the
nature and seriousness of the offence, the character, antecedents, associations and community ties of
the defendant, the defendant’s bail record and the strength of the evidence of his having committed
the offence. Thus, the general right of any unconvicted person to remain at liberty until convicted
may be curtailed if certain stringent conditions are shown to be satisfied.
However, as was recognised in RvManchester Crown Court ex parte McDonald
6
(ex parte
McDonald), if the law ended at that point, it would manifestly afford inadequate protection to uncon-
victed defendants, since a person could, if the Bail Act conditions were satisfied, be held in prison await-
ing trial indefinitely, and there would be no obligation on the prosecuting authority to bring him to trial as
3. The Ministry of Justice (2021) reported (as of 30 April 2021) that 16,676 prisoners or childrenin custody have tested positive for
Covid-19 since the start of the pandemic, across 127 establishments, almost all of whom were adults; that 193 prisoners, children
in custody and supervised individuals have died having tested positive within 28 days of death or where there was a clinical
assessment Covid-19 was a contributory factor in their death; and that of the 193 deaths, 163 were suspected or confirmed to
be caused by Covid-19, 118 were prisoners and 45 were supervised individuals. Notably, courts have given recognition to
this situation by allowing a reduction in prison terms that would otherwise have followed in ‘normal’conditions. See Rv
Manning [2020] EWCA 592 per Burnett LCJ at para. 41. See further: R v Jones [2020] EWCA Crim 764; R v Wayne [2020]
EWCA Crim 1303; Vacciana [2020] EWCA Crim 1724; and Khan [2021] EWCA Crim 335 in which the Court of Appeal con-
cluded that in sentencing the trial judge ‘was entitled in the circumstances of this case to give some weight, albeit modest, to the
impact of the current pandemic on prison conditions’at para. 28. See also Patel [2021] EWCA 231; Conteh & Anor [2021]
EWCA 670; Dixon [2021] 797.
4. Largely encased within its Criminal Court Recovery Plan. This comprises measures to alleviate the extensive delays to trials,
including the installation of plexiglass screens in courtrooms. See further Her Majesty’s Courts & Tribunals Service
(HMCTS) (2020).
5. This reads: ‘1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the follow-
ing cases and in accordance with a procedure prescribed by law…’;‘3. Everyone arrested or detained in accordance with the
provisions of paragraph (1)(c) of this Article shall be brought promptly before a judge or otherofficer authorised by lawto exer-
cise judicial power and shall be entitled to trial within a reasonable time or to release pending trial…’.
6. [1999] 1 Cr App R 409.
104 The International Journal of Evidence & Proof 26(2)
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