I’M ON REMAND … GET ME OUT OF HERE!

Fatima Jama analyses the decision in R. (on the application of CPS) v Maidstone Crown Court [2025] (Currently available only in summary form at 2025 WL 01085051).

Introduction

R. (on the application of CPS) v Maidstone Crown Court [2025] highlights a shift in the interpretation of custody time limits (“CTLs”) under the Prosecution of Offences Act 1985 (the “Act”). The High Court tackled the difficult question of what truly constitutes “good and sufficient cause” for depriving a defendant on remand of their liberty beyond statutory CTLs. At its core, this case examines whether a sick defence barrister, alongside subsequent judicial diary clashes, justified keeping a defendant remanded past their CTL. Fatima Jama scrutinises the court’s reasoning, explores the practical implications for criminal cases, and considers the potential effects on defendants’ rights within an already overly stretched criminal justice system.

Background

The defendant was charged with serious sexual offences and remanded into custody with the CTL expiring on 13 March 2025. The defendant’s trial was due to commence on 17 February 2025 with a five-day time estimate. However, defence counsel became unwell on the first day of trial, though they indicated they would likely return the following day. This created a diary dilemma; the judge would not be available to complete the full five-day trial if the start was delayed. Consequently, the trial was pulled from the list and rescheduled for 04 July 2025, well beyond the defendant’s CTL.

When the Crown Prosecution Service subsequently applied to extend the defendant’s CTL to the new trial date, the judge refused. The reasoning hinged on a strict interpretation of the Act, which states that the appropriate court may extend a time limit imposed by regulations before the limit expires, but only if satisfied that the extension is necessary due to specific reasons and that the prosecution has acted with due diligence and expedition. The judge concluded that the illness of an advocate was not a matter listed in section 22(3)(a)(i) of the Act, that the omission could not be considered an oversight by Parliament, and therefore it would be wrong to use the illness of defence counsel as some other “good and sufficient cause” when it was expressly excluded from the illness criteria.

“A circuit judge refused that application on the basis that there was no “good and sufficient cause”, as required by the Prosecution of Offences Act 1985 Pt III s.22(3), for an extension. He held that the illness of an advocate was not a matter listed in s.22(3)(a)(i), which referred to the “illness or absence of the accused, a necessary witness, a judge or a magistrate”, that that omission could not be considered an oversight by Parliament, and that therefore it would be wrong to use the illness of defence counsel as some other good and sufficient cause when it was expressly excluded from the illness criteria.”

“22 Power of Secretary of State to set time limits in relation to preliminary stages of criminal proceedings.

…

(3)         The appropriate court may, at any time before the expiry of a time limit imposed by the regulations, extend, or further extend, that limit; but the court shall not do so unless it is satisfied—

• that the need for the extension is due to—

• the illness or absence of the accused, a necessary witness, a judge or a magistrate;

• a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more accused or two or more offences; or

• some other good and sufficient cause; and

• that the prosecution has acted with all due diligence and expedition.”

The Decision

At the hearing before the Administrative Court, the defence (for reasons which are not clear) conceded that the combination of defence counsel’s unavailability and its knock-on effect on judicial scheduling could amount to good causes for extending the CTL. The defendant’s representatives submitted that it had been a matter of judicial assessment as to whether those causes were sufficient, and that the Crown Court judge would have considered other factors including the difficulties in listing cases, the length of the extension, and the fact that the defendant had no previous convictions; the public interest would be served by granting him bail with stringent conditions.

It followed that the Crown Court judge erred in law and had reached a decision that no reasonable court could have arrived at. Citing R. v Manchester Crown Court Ex p. McDonald [1999] 1 W.L.R. 841, [1998] 11 WLUK 128, the High Court reaffirmed that the overriding purpose of the Act was to ensure custody periods remain as brief as possible, to force prosecutors to prepare cases promptly, and to place courts under a duty to control any extensions. The High Court quashed the Crown Court judge’s decision and sent the case back to the Crown Court to reconsider the CTL issue afresh.

Analysis and Impact

In evaluating the High Court’s decision, it is important to acknowledge that this was an ex tempore judgment, delivered without the benefit of detailed written preparation. The spontaneous nature of such rulings limits the depth of judicial reasoning and may not fully explore all relevant considerations or authorities. Ex tempore judgments, while valuable for providing immediate resolution, typically lack the comprehensive analysis found in reserved judgments where courts have additional time to consider complex legal questions. The limited reasoning provided in such circumstances might not fully address Parliament’s clear intention that CTLs serve as a meaningful constraint on prosecution delays rather than a flexible guideline.

By adopting a literal reading of the Act, one could argue that the Crown Court judge effectively prioritised the exact text over the realities of criminal court proceedings. This approach failed to acknowledge that legislation simply cannot list every possible scenario that might arise in criminal proceedings. This is particularly important given how interdependent various parties are within the criminal justice system. The High Court’s decision offers a more flexible perspective that acknowledges counsel’s unavailability, particularly when it sets off a scheduling conflict cascade, can legitimately be considered “good cause” for prolonging CTLs.

However, The Prosecution Of Offences Bill Lords Volume 77: debated on Tuesday 16 April 1985 (the “1985 debate”) clearly reveals Parliament’s intention for CTLs to function as a meaningful constraint on prosecution delays, not merely as flexible guidelines. The then Home Secretary Leon Brittan articulated this purpose explicitly in the 1985 debate, emphasising that CTLs would serve as “a discipline to prevent unnecessary delay on the part of all who bring prosecutions.” The mechanism was designed with serious consequences, release on bail if custody limits were exceeded, precisely to compel prosecutors to act expeditiously.

The statutory framework in the Act deliberately establishes specific criteria for extensions, with “good and sufficient cause” intended to cover genuinely exceptional circumstances rather than routine scheduling issues like counsel’s unavailability. When the High Court adopts a more permissive interpretation of this provision, it risks undermining the fundamental safeguards Parliament built into the system.

The High Court’s critique identifies the problem with judicial flexibility here. If courts can effectively bypass the stringent requirements of the Act through expansive readings of the “good and sufficient cause” provision, they potentially hollow out the protective function of CTLs. The parliamentary record makes clear that these limits were meant to have teeth, to impose genuine discipline on the prosecution process. The argument that counsel’s unavailability creates scheduling conflicts that constitute “good cause” seems to stretch the statutory language beyond its intended purpose. If systemic problems within the criminal justice system are causing delays, the appropriate response would be legislative amendment rather than judicial reinterpretation that weakens the protective measures Parliament deliberately enacted.

Mr Brittan’s statement that “If a custody limit is reached, the accused will have to be released on bail. The clause provides for the regulations to apply appropriate provisions to release in those circumstances. The court might be empowered, for example, to require the accused to stay at a specified address or to keep away from witnesses” demonstrates that Parliament intended CTLs to function as a strict deadline, not a flexible target. When courts dilute this intent through overly permissive interpretations, they risk substituting their own policy judgments for those explicitly made by Parliament.

A worrisome concern is the judgment’s possible consequences on a defendant’s liberty. Pre-trial detention is perhaps the most extreme form of state power for an individual’s freedom; a detention which can take place before an individual’s guilt is confirmed. For defendants, the consequences are profound. Pre-trial detention can be accompanied by numerous adverse consequences such as loss of employment, homelessness, separation from family, and a decline in mental wellbeing.

The European Court of Human Rights has repeatedly emphasised that this particular form of detention must be exceptional and only used when absolutely necessary for the shortest possible duration given the infringement of Article 5 (right to liberty and security of person) and Article 6 (right to a fair trial within a reasonable time) European Convention of Human Rights. This approach is evidenced in multiple cases including S v Denmark (2019) 68 EHRR 17, where the Court ruled that although detention to prevent crime can be justified under Article 5(1)(c), such detention must meet strict requirements including imminence of the offence. The Court has similarly emphasised restraint in Ostendorf v Germany (2013) 34 BHRC 738, where it maintained that preventive detention without criminal charge requires particular scrutiny. In Guzzardi v Italy (1981) 3 EHRR 333, the Court established that Article 5 is “not adapted to a policy of general prevention directed against an individual” based merely on their “propensity to crime.” These principles were further developed in Hicks v Commissioner of Police of the Metropolis [2017] UKSC 9, where the UK Supreme Court recognised preventive detention as justified only when necessary to prevent imminent crime and for the shortest duration required.

While the High Court did not overlook the consideration of the overriding purpose of keeping custody periods as short as possible. It appears that the decision may remove a level of discretion to limit defendant custody periods, thereby broadening the gap within which a defendant may be remanded beyond the CTL.

The case illuminates the profound resource constraints plaguing our criminal justice system. The need to reschedule the defendant’s trial nearly five months later reveals the severe limitations in judicial availability and court capacity. These delays are not merely administrative hiccups but fundamental failures of the system to deliver timely justice. Extending CTLs in response to such systemic pressures effectively places the burden of these institutional shortcomings onto defendants. Rather than addressing the root causes, inadequate funding, insufficient judicial appointments, and overburdened court schedules, the decision provides a mechanism for managing symptoms by keeping defendants imprisoned for longer periods.

Undue pressure may be placed on defence advocates. Knowing that their illness or unavailability might lead to extended detention for their clients, defence teams may feel increased pressure to proceed with hearings despite personal health concerns. The domino effect of this is already present: criminal barristers are leaving the profession at an accelerating rate, and one of the factors behind this is the stress of working within a struggling legal system.

Conclusion

The decision in R. (on the application of CPS) v Maidstone Crown Court may have wide-reaching consequences for English and Welsh criminal procedure. The High Court’s reasoning provides answers that pose more serious issues relating to balancing the defendant’s liberty with the necessity of pursuing, promptly and efficiently, serious offences and protecting the public. The judgment illustrates an appreciation of the practicalities of the court and the working relationships that exist between different players in a criminal process. Yet at the same time, it may contribute to what becomes routine acceptance of excessive pre-trial detention.