Just for Kids Law welcomes Government U-turn to exempt children from extended custody time limits

14 Jan 2021

Following months of campaigning and legal action, children’s legal charity Just for Kids Law is pleased to welcome today’s decision from the Ministry of Justice to amend its recent extension to custody time limits to exempt children. New regulations excluding children from the extended custody time limits will come into force on 19 February 2021* and will have a retrospective effect which means that children who have been remanded in the Crown Court since 28 September 2020 will have their automatic custody time limits reduced and their trials relisted within the previous shorter custody time limits. The Ministry of Justice is now in the process of circulating the decision to all relevant stakeholders for appropriate action to be taken.

Previously, the Government introduced regulations which extended the custody time limits in the Crown Court by two months in an attempt to address ongoing delays in the criminal justice system which have worsened during the pandemic. The regulations, which came into force in September 2020, meant that a child could spend almost eight months in custody before they have even had a trial.

When the regulations were initially published, we were very concerned that they would have an overwhelmingly disproportionate impact on children, particularly Black, Asian and Minority Ethnic (BAME) children. Despite only making up 18% of the total population of children, the Government’s own statistics show that over half of children held in custody (52%) are from a BAME background (the majority being Black) and 57% of children on remand are from a BAME background.

In September, we wrote jointly to the Ministry of Justice with The Howard League for Penal Reform and Liberty to raise our concerns about the disproportionate impact of the extension of custody time limits on those remanded pending trial, particularly on children from BAME backgrounds. In our joint letters, we stated that the regulations were potentially unlawful and requested that they be withdrawn. In their initial response, the Government refused to withdraw the regulations, relying on an argument of ‘unprecedented challenges’ that the pandemic has brought to the justice system.

Just for Kids Law therefore issued a Pre-Action letter to challenge the Government’s refusal to withdraw the regulations, focusing on the impact the regulations have on children, following which, the Ministry of Justice agreed to consult the Children’s Commissioner and reconsider their position.

Today, the Ministry of Justice announced that they will introduce further regulations exempting children from the extended custody time limits. The regulations will apply retrospectively to children who had their custody time limits set under the September 2020 regulations, and so all children remanded at the Crown Court will have a custody time limit of 182 days even if their first appearance took place prior to the laying date of these new regulations. Their trials will also be required to be relisted to take place within the shorter custody time limits.

We would like to give a special thanks to our our colleagues Henrietta Hill QC, Shu Shin Luh, and Donnchadh Greene at the Children's Rights Group at Doughty Street Chambers and Joanne Cecil at Garden Court Chambers who have been working tirelessly with us to achieve this fantastic result for children and young people on remand.  

Jennifer Twite, Head of Strategic Litigation at Just for Kids Law said: “We’re delighted that the Government has made the right decision in exempting children from its extension to pre-trial custody time limits. Pre-trial detention is damaging for children and its use has a particularly disproportionate impact on Black and Ethic Minority children.

“Today’s decision means that children will again have the benefit of a shorter custody time limit which means that they will spend less time in custody and their trials will take place sooner. This is especially important during the pandemic, which exacerbated the conditions of detention in children’s prisons and increased isolation by reducing contact with family and access to vital services.”   

Notes to editors:

*The date that the new custody time limit extension regulations will come into force was added to this press release on 29 January 2021. The Statutory Instrument, which was laid on 29 January, is available here.

About Just for Kids Law 

Just for Kids Law is a UK charity that works with and for children and young people to hold those with power to account and fight for wider reform by providing legal representation and advice, direct advocacy and support, and campaigning to ensure children and young people in the UK have their legal rights and entitlements respected and promoted and their voices heard and valued. 

About The Prosecution of Offences (Custody Time Limits) (Coronavirus) (Amendment) Regulations 2020

From 28 September 2020 and ending on 28 June 2021, the 2020 Regulations will amend Regulation 5 (Custody time limits in the Crown Court) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 by increasing the maximum periods of pre-trial custody in cases before the Crown Court as follows:

For either-way offences not dealt with summarily, the period of time before the start of trial and either:

  • The defendant’s committal for trial; or
  • When a bill of indictment is preferred against the defendant in accordance with section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (the “1933 Act”), is increased from 112 days to 168 days

For indictable-only offences, the period of time before the start of trial and when a Magistrates’ Court sends the case to be tried at the Crown Court, is increased from 182 days to 238 days (less any time ordered to spend in custody by the Magistrates’ Court).

The 2020 Regulations do not apply to those individuals who are already in custody and subject to a custody time limit that began before 28 September 2020.

Where an individual is remanded in custody for the first time after 28 September 2020 and before 28 June 2021, the custody time limits set out in the 2020 Regulations will apply to that individual even if the relevant custody time limit expires after 28 June 2021.

On 28 June 2021, custody time limits will revert to the 1987 Regulations, unless further legislation is passed through Parliament.

Further information

Doughty Street Chambers' press release with further details is available here.

Garden Court Chambers' press release with further details is available here.