England and Wales
Pretrial detention limits are defined by the Prosecution of Offences Act 1985, Regulation 7 of the Regulations and the Prosecution of Offences Act (Custody Time Limit) Regulations 2012. Article 22 (4) of the Prosecution of Offences Act 1985 sets out the general rule that the trial must start during the Custody Time Limit (“CTL”) or the defendant must be released on bail (or if the defendant is already on bail the case must be discharged). Fair Trials International focuses on pretrial rights throughout Europe, and especially in the United Kingdom, and is a valuable resource for understanding the law and seeking assistance when detained in the United Kingdom.
General Status of Pretrial Detention Rights in England and Wales
According to the Fair Trials International report of 2011 “the pre-trial detention regime is rarely found to be in violation of the [European Convention on Human Rights]. . . . [L]egislation . . . limits the possibility of release for defendants who have previously been convicted of serious offences such as murder, manslaughter and rape. Defence lawyers and non-national detainees complain of discrimination in pre-trial detention hearings.” According to a 2013 report carried out by Her Majesty’s Crown Prosecution Service Inspectorate entitled ‘Follow-up Review of the Handling of Custody Time Limits by the Crown Prosecution Service’ explains that the CPS has implemented many of the recommendations made after an audit of their compliance with CTLs through better management of the CTL internal monitoring methods.
Domestic Laws Governing Pretrial Detention
Custody Time Limits
The duration of pretrial detention is limited by the Custody Time Limit. If a person is detained beyond the CTL, depending upon the charges lodged, he or she must be released.
Summary offenses are lesser offences that are tried in the Magistrates’ Court. The CTL for a person accused of a summary offence (starting from the date of first appearance before the Magistrates’ Court charging the defendant with the offence until the start of trial) is 56 days. Examples of summary offences are:
|Common assault and battery||Section 39 Criminal Justice Act 2003|
|Assaulting a Prison Custody Officer||Section 90 (1) Criminal Justice Act 1991|
|Taking a vehicle without consent||Section 12 Theft Act 1968|
|Driving while disqualified||Section 103 Road Traffic Act|
|Low value criminal damage (less than £5,000)||Section 22 and Schedule 2 of the Magistrates Court Act 1980|
Bail in the Case of Summary Offenses
Bail under the Bail Act 1976 may be granted to people accused of summary offences. Bail is refused in situations where the Court is of the opinion that the individual would (Schedule 1 Part 1(2) of the Magistrates’ Court Act 1980):
- Fail to surrender to custody (not show up for trial)
- Commit an offence while on bail
- Interfere with witnesses or obstruct the course of justice whether in relation to himself or any other person
Bail is also denied where:
- The alleged offence is indictable or triable either way
- The individual should be kept in custody for their own protection or for the welfare of a child or a young person
- The individual is waiting to be sentenced
Offences Either Way
“Offenses either way” are charges that can be tried in either the Magistrates’ Court or the Crown Court. They can be minor offences or very serious ones. Schedule 1 of the Magistrates’ Court Act 1980 lists offences triable “either way.” Some examples are:
|Threats to kill||Section 16 Offences Against the Person Act 1861|
|Inflicting bodily injury with or without a weapon||Section 20 Offences Against the Person Act 1861|
|Abandoning or exposing a child||Section 27 Offences Against the Person Act 1861|
|Theft||Section 7 Theft Act|
|Drug Offences||Misuse of Drugs Act 1971|
The CTL for a person accused of an offence triable either way (starting from a defendant’s first appearance in custody until the start of summary trial) is 56 days. If the Magistrates’ Court decides that the case is more suitable for Crown Court trial, the defendant chooses trial the CTL is 70 days or 56 days have passed before Crown Court allocation takes place.
Bail in the Case of Offenses Either Way
Schedule 1 2A (a) of the Bail Act 1976 states that a defendant need not be granted bail if accused of an offence triable either way. This means that bail is discretionary where the detainee is accused of an offence that is triable either way.
Indictable offenses are serious crimes that are heard in the Crown Court only. This includes offences triable either way that have been deemed to be better addressed by the Crown Court under sections 51 and 51 A of the Crime and Disorder Act 1998 (as amended by the Criminal Justice Act 2003). Examples of indictable only offences are murder, manslaughter, robbery and conspiracy. The CTL for an individual is charged with these they can only be tried in the Crown Court then the CTL is 182 days.
Bail in the Case of Indictable Offenses
The Bail Act 1976 states that an individual is not entitled to bail if he or she has been has been charged with serious crimes such as murder, attempted murder, manslaughter, rape or attempted rape. In this case an individual will be remanded in custody.
Custody Time Limit Extensions
The CTL may be extended under Section 22(3) of the Prosecution of Offences Act 1985 due to:
- The illness or absence of a defendant, a necessary witness, a judge or a magistrate
- Where the court orders separate trials in case of two or more defendants or where there are two or more charges
- Some other good and sufficient cause
Human Rights Act of 1998
The Human Rights Act of 1998 incorporates the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) and recognizes certain fundamental human rights afforded to all U.K. pretrial detainees. Schedule 1 Article 5 of the Human Rights Act states: (1) Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (3) Everyone arrested or detained in accordance with the provisions of paragraph (1) (c) of this Articled shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial Note: To be held on Judges Remand is to have been convicted of an offence but is waiting to be sentenced.
International or Multilateral Treaties Concerning Arbitrary Detention
European Convention on Human Rights (“ECHR”)
Click here to see Pretrial Rights International’s summary of pretrial detention rights under the European Convention on Human Rights.
Click here to see Pretrial Rights International’s summary of pretrial detention rights under the ICCPR.
The following case studies are provided to help you understand how pretrial detainees in the United Kingdom are able to preserve and fight for their human rights, including the right to be free from arbitrary detention and the guarantee of a fair and speedy trial. R v. Manchester Crown Court exparte McDonald (and Consolidated Applications)  1 Cr. App. R. (R v. Manchester Crown Court Exparte McDonald) (Cornhill CJ) sets out the criteria for Custodial Time Limits. What the court must require is such diligence and expedition as would be shown by a competent prosecutor conscious of his duty to bring the case to trial as quickly as reasonably and fairly possible. In considering whether that standard is met, the court will of course have regard to the nature and complexity of the case, the extent of preparation necessary, the conduct (whether co-operative or obstructive) of the defence, the extent to which the prosecutor is dependent on the co-operation of others outside of his control and other matters directly and genuinely bearing on the preparation of the case for trial. R v. Leeds Crown Court exparte Wardle  All England Reports (D). In this case the question of law was “when in a Magistrates’ Court does the charging of an offence cause a fresh custody time limit to run?” The Appeal Court restated R v Manchester Crown Exparte McDonald and said: It is thus plain that Parliament intended that there should be limits to the period during which a person could be detained. The Secretary of State has imposed those limits by the Regulations at the expiry of which bail must be granted. No question arises on this appeal as the meaning of the Regulations where only one charge is brought and whether or not it includes one or several offences. The question is whether when an offence is subsequently charged whether by alteration of an existing charge or the addition or substitution of a new charge a new limitation period arises in respect of the altered or new charge. It is clear that the additional substitution of a new charged does not affect the limitation period for the original offence charged. That can only be extended by an order under section 22 (3) of the 1985 Act if the prescribed conditions are satisfied. The courts have also clearly recognised that a new period does not begin where the additional substituted charges are sought to be added in circumstances which constitute an abuse of the process of the court though it is not clear what is the ambit of that exception. Note: England and Wales is part of the European Union and cases that are decided by the European Court of Human Rights have direct effect in England and Wales as though they were a part of the national law. Punzelt v Czech Republic (2001) 33 EHRR 49 ECHR The court reiterates that the reasonableness of the length of detention must be assessed in each case according to its special features. Continued detention may be justified in a given case only if there are clear indications of a genuine public interest which, notwithstanding the presumption of innocence, outweighs the right to liberty…The persistence of a reasonable suspicion that the person arrested has committed is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. The court must then establish whether the other grounds given by the judicial authorities continues to justify the deprivation of liberty. Where such grounds were ‘relevant’ and ‘sufficient’, the court must also ascertain whether the competent national authorities displayed ‘special diligence’ the conduct of the proceedings
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