Delays in the court system – Covid-19

The Covid-19 pandemic has had a huge impact on how the courts have operated in the UK. Funding in the criminal justice system over the past few years led to severe backlogs in how cases are processed and dealt with in the courts. This has been further exacerbated by the coronavirus with the backlog reaching over half a million cases in recent weeks.

Facing a criminal charge is one of the most stressful experiences that someone may face. Cases may take weeks, months or years to come to a conclusion and this can be a huge source of anxiety. However, delays in criminal mattes may, in some circumstances, also be advantageous.

Summary-only offences, such as speeding and drink driving, are generally subject to a strict time limit. Prosecution for these offences may only proceed if the information is laid before the court within six months from the date of the alleged offence.

This can be quite a complex area of law but we have been successful in requesting that the prosecution drop cases in certain circumstances where it is clear that the prosecution was brought out of time.

For more serious offences, such as causing death by dangerous driving, there is no time limit in which you must be charged before the prosecution becomes time barred. Many clients are released under investigation in these matters, and it can involve a considerable length of time before any further action is taken.

Substantial delays in the investigation and prosecution of an offence may be put forward to the court as mitigation when the matter is heard for sentencing.

Article (6)(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms states that “[i]n the determination…of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”. This is incorporated into UK law via the Human Rights Act 1998.

The test for delay is sometimes known as the “reasonable time requirement”, so the court must examine whether there has been an unreasonable delay.

The court laid out a test in Dyer v Watson, and K v HM Advocate [2004] 1 A.C. 379:

1. First the court must question how much time has passed and does this give the court grounds for “real concern”?– this is a very high threshold to meet. The longer the time for a matter to be resolved, the greater the court’s concern. The court will consider how long a defendant has had to spend anxiously awaiting a resolution, and whether there is any prejudice to a future trial such as whether a defence witness has left the country.
2. If there is a real concern, the court must take a detailed look at the facts and circumstances of the case.
3. The final step will involve the court asking the prosecution to explain any delay which appears excessive. This will take account of the complexity of the case as a starting point. If the defendant is thought to be a cause of the delay, then this will defeat any argument raised (although, putting the prosecution to proof and asking them to prove the case against you is not an example of being unreasonable). The court will also look at how the case has been administered by the authorities, for example if a case is adjourned as a result of an urgent matter needing to be dealt with, then this may still be viewed as reasonable).

Any time frame for a delay will always end at the point where the appeal process has been completely exhausted.

The relevant starting point in any criminal proceedings will be when a defendant was formally charged or served with summons. It will not start from an interview under caution. However, this does not mean that any unreasonable delay caused by the police is irrelevant in mitigation.

The court can choose to stay proceedings (preventing the matter from continuing indefinitely) However this is a very rare outcome and the courts are often resistant to take this approach in cases unless there are exceptional grounds to do so.

The courts can offer a reduction in sentence which is often viewed as a more proportionate outcome (Attorney General’s Reference (No 2 of 2001) [2001] EWCA Crim 1568.) However, delay arguments in general are generally thought to be exceptional (Attorney General’s Reference (No 79) [2009]).

The Sentencing Guidelines – Overarching Principles now includes reference to ‘delay since apprehension’ as a factor reducing the seriousness of an offence, or reflecting personal mitigation:

Whilst the above test for a court to examine where there has been an unreasonable delay is strict, there is no set framework for the court to follow when determining, if appropriate, how a sentence should be reduced.

The court will follow earlier cases for guidance when making their determination. Below is a recent example:

• R v Tilby [2019] EWCA Crim 1623 – a mother was charged with one count of child cruelty and a guilty plea was entered. There was a delay of 2 years between the incident and the charge. Whilst the court advised that this was a complex investigation, a reduction was six months against the custodial sentence was granted. The court considered mitigating factors relating to the mother’s physical and mental health, but there was little discussion as to whether or not the delay strictly contributed to the reduction.

The courts in civil matters have given further consideration (in a robust manner) as to how cases should be progressed in light of the Covid-19 pandemic:

• Municipio De Mariana v BHP Group Plc [2020] EWHC 928 – when considering an application by the defendants for further time to gather evidence as a result of the pandemic, the court must consider various factors such as the expectation for legal professionals to make use of modern technology, as well as to go further in their professional duties than might otherwise be expected to ensure that deadlines are met.

• We are likely to see far reaching consequences of Covid-19 in how criminal cases are progressed as a result of the huge backlogs in the court system.
• Delays in a case being resolved can form part of your mitigation and can lead to a lower penalty in certain circumstances.
• Delay as a mitigating factor is a high test to meet, particularly if a case is to be appealed on this point, so raising delay as an appropriate factor at the earliest opportunity, is likely to be the best course of action.
• It will be a matter for the Court to determine whether any delay was unreasonable and whether it had a detrimental affect on the offender.