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Government announces children will be exempt from the recent extension to custody time limits

Friday 15 January 2021

Joanne Cecil of the Garden Court Chambers Youth Justice & Child Rights Team has worked tirelessly to achieve this fantastic result, alongside Henrietta Hill QC, Shu Shin Luh and Donnchadh Greene at the Children's Rights Group at Doughty Street Chambers.

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Following months of campaigning and legal action from Just for Kids Law, the Ministry of Justice has agreed to amend its recent extension to custody time limits to exempt children. New regulations excluding children from the extended custody time limits will be laid as soon as the parliamentary timetable allows 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, Just for Kids Law wrote jointly to the Ministry of Justice with The Howard League for Penal Reform and Liberty to raise concerns about the disproportionate impact of the extension of custody time limits on those remanded pending trial, particularly on children from BAME backgrounds. In the letters, it was stated that the regulations were potentially unlawful and requested that they be withdrawn.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.

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.”   

A version of this press release was first published on Just for Kids Law's website on 14 January 2021. Click here to view.

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