HELLO … I’M STILL ON REMAND… GET ME OUT OF HERE!

Fatima Jama considers a significant Administrative Court ruling on custody time limits that raises questions about the treatment of defendants presumed innocent until proven guilty.

Introduction

In R (oao Bernard) v Crown Court at Snaresbrook [2025] EWHC 3055 (Admin), Mrs Justice Eady DBE quashed HHJ Del Fabbro’s decision to extend custody time limits by five months for a young defendant facing domestic violence charges. The case provides guidance on the circumstances in which courts can keep defendants in custody beyond statutory time limits and highlights the constitutional importance of protecting defendants’ liberty rights.

This ruling follows a pattern of concerning custody time limit extensions that prompted my previous article “I’M ON REMAND … GET ME OUT OF HERE!”. Bernard demonstrates that these concerns can be well-founded, with judges sometimes reaching decisions which suggest that the presumption of innocence has slipped their mind.

The ruling comes at a critical time when Crown Courts face unprecedented backlogs and resource pressures. It serves as a reminder that these systemic issues cannot simply be used to justify keeping unconvicted defendants in custody for extended periods without proper scrutiny.

Background

Mr Ruben Bernard, a 22-year-old man with no previous convictions, was charged with serious allegations of harassment, multiple counts of assault by beating, and criminal damage relating to alleged domestic violence against his partner.

Mr Bernard was arrested on 03 April 2025 and remanded in custody after bail applications were refused. At his Plea and Trial Preparation Hearing on 02 May 2025, his trial was listed for 03 March 2026. The custody time limit expired on 03 October 2025, meaning the trial was scheduled five months beyond the statutory maximum period for pre-trial detention. A further case management hearing was listed for September 2025 in which the custody time limit would be revisited.

The prosecution applied to extend the custody time limit, citing the court’s inability to accommodate the trial any earlier. The matter came before HHJ Del Fabbro on 30 September 2025.

The Crown Court

The hearing before HHJ Del Fabbro raised issues concerning the presumption of innocence. When Mr Bernard maintained his innocence from the dock, the judge responded sharply, telling him to “Be a man. Stand up to what you have done.”  When Mr Bernard continued to protest his innocence, the judge dismissed him with “I do not want to know but stop muttering”. HHJ Del Fabbro ultimately granted the extension, reasoning that the courts faced unprecedented increases in trial numbers that made it impossible to accommodate the case earlier. He found that this constituted “good and sufficient cause” for the extension.

The Legal Framework

Custody time limits exist to protect fundamental rights. The Prosecution of Offences Act 1985 (the “Act”) sets a maximum period of 182 days for defendants remanded in custody between being sent to the Crown Court and the start of their trial. These limits reflect the principle that liberty should not be restricted for longer than absolutely necessary when someone has not been convicted of any crime.

Courts can extend custody time limits, but only in limited circumstances. Section 22(3) of the Act requires the court to be satisfied that the need for extension is due to “good and sufficient cause” and that the prosecution has acted with all due diligence and expedition. Even when these conditions are met, the court retains discretion to refuse an extension.

The case law establishes that certain factors can never justify extensions, such as the seriousness of the alleged offence, the need to protect the public, or that the extension is relatively short. These exclusions recognise that such factors would exist in virtually every case, potentially rendering custody time limits meaningless. As Eady J observed in (§36):

“As the case-law makes clear, certain matters cannot, of themselves, amount to good and sufficient cause for the purposes of section 22(3). Such matters include: the seriousness of the offence with which the defendant is charged (R v Governor of Winchester Prison, Ex parte Roddie [1991] 1 WLR 303, at p 306); the need to protect the public (R v Central Criminal Court, Ex parte Abu-Wardeh [1998] 1 WLR 1083 at p 1088F-G); or the fact that the extension is only for a short period (Ex parte Roddie at p 306).”

Resource limitations and listing difficulties present more complex considerations. Courts have recognised that a lack of judges, courtrooms, or other resources can constitute a “good” cause for extension. However, whether such causes are “sufficient” requires rigorous scrutiny. The courts have been particularly clear that systemic, ongoing financial constraints will rarely if ever justify extensions. To hold otherwise would allow the executive to bypass Parliamentary control over custody time limits simply by underfunding the court system.

The High Court’s Analysis

Mrs Justice Eady’s judgment identified multiple serious errors in HHJ Del Fabbro’s approach. The most fundamental was his failure to properly distinguish between a “good” cause and a “sufficient” cause for the extension. While accepting that listing difficulties might constitute a good cause, she concluded that the first instance judge had not adequately explained why they were sufficient in this particular case.

The High Court noted that Mr Bernard’s trial had been listed outside the custody time limit from the very beginning. Nothing had been identified at that stage as exceptional about the case. It was simply a routine three-day trial that had been given a standard listing. The prosecution’s application for extension had not identified any surge in criminal trials or other factors that would explain why this routine case could not be accommodated within statutory time limits.

The judge’s reference to “unprecedented increases in trials” was problematic for several reasons. First, he appeared to place the burden on the defence to disprove this assertion, when the burden throughout should have been on the prosecution to justify the extension. Second, no evidence had been provided by the court service to support claims about increased trial numbers. Third, even if such increases existed, they did not explain why a routine trial scheduled five months earlier could not have been listed within custody time limits.

Perhaps most troublingly, Eady J took the view that HHJ Del Fabbro had allowed irrelevant considerations to infect his decision. His comment that Mr Bernard should “be a man” and admit what he had done, combined with his observation that it had not been possible to resolve issues due to Mr Bernard’s “complete denial,” suggested he viewed the not guilty pleas as somehow counting against the defendant. Eady J considered that this fundamentally misunderstood the presumption of innocence and the right to require the prosecution to prove its case.

The High Court also found that HHJ Del Fabbro had failed to properly consider factors relevant to his discretion. He had not addressed Mr Bernard’s young age and lack of previous convictions. He had not engaged with the length of the extension sought, which at five months exceeded the three-month guideline suggested in previous cases. Most importantly, he had not properly considered that Mr Bernard would likely have served most or all of any sentence by the time of trial, even on the prosecution’s case.

Constitutional Implications

The judgment emphasises crucial constitutional principles about the separation of powers and Parliamentary sovereignty. Parliament has decided that custody time limits should be subject to democratic control. When governments want to extend these limits generally, they must explain their reasoning to Parliament and face potential rejection.

This democratic safeguard would be meaningless if courts routinely extended custody time limits due to resource constraints. As the High Court noted, such an approach would allow the executive to circumvent Parliamentary control simply by underfunding the justice system. Judges must therefore be particularly vigilant when asked to extend custody time limits due to systemic issues rather than case-specific factors.

The ruling also reinforces the fundamental importance of the presumption of innocence. A defendant who maintains not guilty pleas is exercising constitutional rights. That exercise cannot be held against them, explicitly or implicitly, when courts consider whether to extend their detention.

The Remedial Order

Rather than ordering Mr Bernard’s immediate release, Mrs Justice Eady made a deferred quashing order. The decision to extend custody time limits would be quashed, but only after 14 days. This gave Snaresbrook Crown Court time to reconsider the matter properly and, if appropriate, impose bail conditions.

This pragmatic approach recognised that immediate release without conditions might not serve public safety or the interests of justice. However, it also ensured that Mr Bernard’s unlawful detention would end within a defined timeframe. The Crown Court was directed to reconsider the matter in accordance with the High Court’s judgment, applying the correct legal principles.

Implications

This judgment has significant implications for custody time limit applications across England and Wales. It confirms that courts cannot treat resource limitations as automatic justification for extending detention. Judges must scrutinise claims about unprecedented pressures and demand evidence rather than accepting assertions.

The ruling also clarifies that routine cases require particular justification for extensions. When a standard trial receives a standard listing that happens to fall outside custody time limits, courts must identify specific factors that make extension necessary and appropriate. General system pressures will not suffice.

Defence advocates should take encouragement from this judgment to robustly challenge custody time limit extensions. The High Court has shown it will intervene when Crown Court judges fail to apply proper scrutiny or allow irrelevant considerations to influence decisions. Maintaining not guilty pleas is a right, not a factor that counts against defendants.

For Crown Court judges, the message is clear. Custody time limit extensions require careful consideration of all relevant factors and clear reasoning about why extension is both necessary and appropriate. Comments suggesting defendants should admit guilt are inappropriate and may fatally undermine any decision to extend detention.

The prosecution must also learn lessons. Applications to extend custody time limits need proper evidence about why extensions are necessary. Vague references to system pressures or increased workloads will not suffice. If the prosecution cannot demonstrate specific reasons why a particular case cannot be tried within statutory limits, extensions should not be granted.

Broader Context

This case sits within a broader crisis in the criminal justice system. Court backlogs have reached record levels, with defendants waiting longer than ever for trials. Legal aid cuts have reduced access to justice. Prison conditions have deteriorated while remand populations have soared.

These systemic problems create real pressures on judges trying to manage impossible caseloads. However, the solution cannot be to normalise extended pre-trial detention. That would represent a fundamental shift in the balance between state power and individual liberty, accomplished through judicial decisions rather than democratic debate.

The government faces difficult choices about criminal justice funding. However, if current resources genuinely cannot deliver trials within statutory time limits, the proper course is to seek Parliamentary approval for longer custody time limits. That would require ministers to defend their funding decisions and courts policy to democratic scrutiny. It would also allow Parliament to consider whether extended detention is an acceptable price for current spending priorities.

Looking Forward

The Bernard case should prompt reflection across the criminal justice system. For defendants, it affirms that custody time limits remain meaningful protections against excessive pre-trial detention. Courts cannot simply rubber-stamp extensions based on system pressures.

For the judiciary, it emphasises the importance of maintaining independence from system pressures. Judges must apply the law even when doing so creates practical difficulties. They must also remember that defendants are innocent until proven guilty, regardless of the charges they face.

For policymakers, the case highlights an unsustainable situation. Either the justice system needs resources to deliver trials within current time limits, or Parliament needs to approve longer limits with full understanding of the liberty implications. The current approach of extending limits case by case through judicial decisions lacks democratic legitimacy and creates inconsistency.

Most fundamentally, the Bernard judgment reaffirms that liberty remains a fundamental right in our legal system. The state’s power to detain unconvicted citizens is limited by law. Those limits cannot be casually exceeded simply because the system struggles to cope with demand.

The Bernard case ultimately stands for a simple but crucial principle. In a society governed by law, the state cannot detain people indefinitely simply because it is convenient. Even when facing serious allegations, citizens retain rights that courts must protect. HHJ Del Fabbro forgot this principle when he told Mr Bernard to “be a man” and admit guilt. The High Court’s judgment ensures that such forgetting comes with consequences, protecting not just Mr Bernard but all future defendants who depend on the presumption of innocence and the rule of law.