If you had been arrested for a crime you didn’t commit, would you plead guilty if it meant a shorter sentence than the time you would spend in prison awaiting trial?

Such a scenario seems Kafkaesque, but this isn’t fiction. This is the real-life potential consequence of government plans to extend the amount of time someone can be kept in prison awaiting trial from six months to eight months, before a judge must review their detention.

Backlog of cases
The government press release says that the extended custody time limit will be implemented ‘while courts recover from the pandemic.’ The truth is that the courts have been flailing for a long time. In recent years, the government has cut funding for the criminal courts, reducing the number of sitting days for judges, leaving many courtrooms sitting empty, or closing them altogether. The result was an increasing backlog in criminal cases, with over 37,000 Crown Court cases outstanding in 2019.

Then the pandemic struck. The magistrates’ courts began only seeing urgent cases and jury trials at the Crown Courts were postponed, causing a further swell in the backlog. The inspectorate that monitors the Crown Prosecution Service recently warned that the backlog could take a decade to clear at pre-pandemic rates, and some criminal cases have been given a trial date as far away as 2022.

Lengthy waits for trials impact victims, too. Worryingly, the Victims’ Commissioner Dame Vera Baird said recently that victims are dropping out of prosecutions due to the growing backlog.

Remand in prisons
What’s more, many people on remand in prison do not receive a custodial sentence once they have had their day in court. More than a quarter of people remanded in custody by the Crown Court in 2017 did not go on to receive a custodial sentence, and 10 percent of those remanded in prison in 2019 were subsequently acquitted.

And overcrowded prisons are even more harmful to mental and physical health during the pandemic. Prisoners are locked in their cells for up to 23 and a half hours a day, with limited access to their families, fresh air and education. Extending the custody time limit will further increase the population and pile pressure on the buckling prison system.

The most concerning impact of the extended custody time limit, and long delays to court cases in general, is that innocent people may plead guilty to a crime they didn’t commit, if their sentence will be shorter than the amount of time they would spend awaiting a jury trial.

It is also troubling that the government has not published the Equality Impact Assessment for this decision. We know that remand is disproportionately used for black, Asian and minority ethnic people. In 2018, 45 percent of black, Asian and ethnic minority defendants in the Crown Court were remanded compared to 38 percent of white defendants. The extension of the custody time limit is likely to have a disproportionate impact.

Reducing the number of people on remand
To give credit where it is due, there have been some positive measures implemented by the government in recent months. In April, the government rolled out Bail Information Services across all courts. Bail Information Services help defendants satisfy requirements for bail, such as finding accommodation or accessing drug and alcohol treatment services, something the Criminal Justice Alliance and members of its Remand Expert Group had called for prior to the pandemic.

Disappointingly, prisons minister Lucy Frazer recently said that the Bail Information Services were shut down in August and were now only available on a ‘reactive basis’ at the request of the court. The minister said that there will be a further pilot of the services this autumn. Given that there were already pilots prior to COVID-19 with promising results, and that there were proactive services running in the courts throughout the pandemic, it begs the question: Why do we need another pilot? Use of remand is at a four year high. Bail Information Services should be rolled out nationally as a matter of urgency, with dedicated staff in each court. This will reduce the number of people on remand, who are currently experiencing highly restrictive regimes, and ease pressure on prisons during the pandemic and beyond.

The solution to the courts backlog
The government’s plans to extend custody time limits merely kick the can down the road and must be withdrawn. Article 5 of the Human Rights Act states that anyone arrested is entitled to trial within a reasonable time, or to be released pending trial. The only proper way to reduce the courts backlog without stripping people of this right is to increase investment in the courts. As the Justice Select Committee argued in its letter on this issue, ‘the best way of protecting the public is to ensure that the crown courts capacity is drastically increased.’ This would help ensure justice is delivered in a fair and timely fashion, for the good of defendants, victims and the wider public.