Extension, expiry and the defence solicitor's diary discipline

Extension is a judicial decision before expiry

A custody-time-limit extensionGlossary termCustody-time-limit extension must be obtained through Prosecution of Offences Act 1985 s 22(3) before the existing limit expires. Filing a request does not, by itself, extend the limit. An ordinary adjournment of the application past expiry does not preserve power to revive the expired CTL. The specific protection for a timely prosecution appeal from magistrates, explained below, is different.

Under regulation 7 and CrimPR 14.21, the prosecutor must ordinarily give written notice of the intended extension application to the court and defendant. The court arranges the hearing after the expiry of five days from giving notice in the Crown Court, or two days in the magistrates’ court. The prescribed units here are days, not the rule 14.7 business-day formula. Distinguish that written notice from the application itself: an application can be made orally, although a properly reasoned written application is sound practice. It should identify the offence, present expiry, proposed new date and statutory grounds, and set out the chronology proving all due diligence and expedition. A shorter notice period or dispensing with notice requires the lawful power, including the applicable waiver or impracticability provisions, and a fair opportunity for the defendant to answer. A shortened notice period is not an extension of the CTL itself.

The court needs time to determine the application, give reasons and specify the new expiry. The defence should obtain the notice, underlying chronology and supporting material early, check service and calculation, and identify the exact statutory issue. The court’s record should show the previous limit, the extension decision and the new date, not merely “CTL dealt with”. Each defendant and affected charge must be identified.

Both statutory limbs must be established

The prosecution bears the burden of satisfying the court, on the balance of probabilities, of both requirements in section 22(3):

1. The need for the extension is due to illness or absence of the accused, a necessary witness, a judge or magistrate; a court-ordered separation of trials; or some other good and sufficient cause.
2. The prosecution has acted with all due diligence and expedition.

Good and sufficient cause concerns why trial cannot properly begin in time. Diligence and expedition concern what the prosecution has done to progress it. A genuine external problem does not excuse a causative failure to prepare, and careful preparation does not establish a reason for an unnecessary extension. Identify both findings separately.

A sudden necessary witness illness, unavoidable third-party delay despite timely requests and chasers, or a properly justified joint-trial problem can provide a cause on the facts. The seriousness of the offence, the shortness of the requested extension and a previous refusal of bail do not themselves do so. Courtroom, judge or listing unavailability needs a specific account of the circumstances and alternatives, not a generic assertion that the system is busy. Avoid the opposite absolute that every listing difficulty is legally incapable of being sufficient.

Diligence includes the relevant work of police and prosecutors. Ask when the evidence was recognised as needed, requested, chased, received, reviewed and served; when witnesses and experts were contacted; when any problem emerged; what alternative arrangements were attempted; and whether the trial could have been ready in time. The standard is demanding but realistic, not perfect performance by an organisation with no other cases.

Causation matters. As explained in O v Crown Court at Harrow, paragraphs 53–57, an identified lack of diligence should be connected to the need for the extension; refusing an otherwise justified extension is not a disciplinary penalty for an unrelated error which did not affect readiness. Equally, the prosecutor cannot avoid a relevant delay by calling it a small administrative lapse. Give the court the actual chronology and effect.

Challenge the decision by the correct route

Under s 22(7), the defendant can appeal a magistrates’ extension to the Crown Court. Under s 22(8), the prosecution can appeal a magistrates’ refusal. CrimPR 14.22 requires written notice served on the parties and the officers of both courts, setting out the offences, the decision, relevant limit and grounds, as soon as practicable. A prosecution appeal must be served before the existing limit expires.

The Crown Court hearing is arranged as soon as practicable and no later than the second business day after service under rule 14.22. Under s 22(9), a prosecution appeal instituted before expiry treats the limit as unexpired pending determination or abandonment. That is the specific reason detention does not become unlawful merely because the appeal hearing occurs after the original date. It is not a general saving for a late initial application or for an appeal first brought after expiry.

An appeal may be abandoned under the prescribed notice procedure before its hearing without permission; once the hearing begins, the court’s permission is required. Record the abandonment and its effect on custody immediately. A Crown Court CTL ruling is not followed by the same statutory appeal to another criminal court. An urgent judicial-review challenge may be available on proper public-law grounds under s 22(13); it is not an automatic rehearing of an unfavourable discretion. The appeals chapter explains the general supervisory routes.

Expiry normally gives bail, not dismissal

Subject to the specific serious-offence restriction below, expiry without a valid extension gives a statutory entitlement to bail. Obtain the court’s operative release order and ensure the custodian receives it; a diary entry alone does not release a prisoner. The prosecution continues. The court can impose lawful, necessary non-financial conditions, but regulation 8 prohibits requiring a surety or security as the price of CTL-expiry bail. Consent cannot create a financial-condition power which the Regulations withhold. Regulation 8 also modifies s 3(6) so that its requirements operate after release on bail, not as conditions to be completed before release. This is a statutory distinction, not merely advice to avoid unreasonable delay.

Do not frustrate the right by making release depend indefinitely on an impossible address or unavailable monitoring arrangement. Any condition must have its own legal basis and remain compatible with the entitlement to release. An electronically monitored curfew is not automatically available simply because it is non-financial: the electronic-monitoring gateway and arrangements must still be satisfied. A separate valid remand, sentence or other detention power may continue to prevent physical release; identify it expressly rather than extending the expired charge by implication.

For a Crown Court CTL, regulation 6 supplies an anticipatory process. Ordinarily the prosecution gives written notice at least five days before expiry stating whether it seeks conditions and which ones, and arranges production within the two days preceding expiry. The court has the specified powers to shorten or dispense with those procedural steps. A proper extension notice removes the need for duplicate conditions notice under regulation 6(3). The defence can seek representation at the conditions hearing, state non-opposition or submit written reasons against the proposed conditions. The resulting bail is to operate from expiry. These are not new grounds for extending custody.

The exceptional section 25 restriction survives

Regulation 6(6) expressly preserves CJPOA 1994 s 25. A qualifying defendant facing a listed serious offence with the specified previous conviction can therefore still be refused bail after CTL expiry unless exceptional circumstances justify release. This is a limited statutory exception, not a general discretion to detain any defendant whom the court regards as dangerous after a CTL has expired. Apply the exact current charge, previous conviction and qualifying disposal, and the judicial assessment of all relevant circumstances.

What happens if someone absconds after CTL-expiry release?

Under s 22(5), CTLs do not protect a person who escapes from magistrates’ or Crown Court custody before expiry, or who, having been released on bail in consequence of expiry, fails to surrender or is arrested under Bail Act s 7(3)(b) for a suspected or anticipated condition breach. The provision directs the Regulations’ CTLs for the relevant preliminary stage to be disregarded. Regulation 8 correspondingly removes the section 7(3)(a) and (c) warrantless-arrest routes after CTL expiry: the relevant condition-breach arrest is paragraph (b). Actual failure to surrender can still engage the warrant and section 6 routes. It does not make the breach a new standalone offence, and a fresh custodial decision must still be lawfully made. But the defendant cannot simply insist that the already expired limit forever prevents re-remand.

Contrast ordinary pre-expiry bail, where an unused balance normally pauses and resumes, with release in consequence of expiry. Record the legal basis and wording of the release order, including a prospective order designed to take effect because of expiry. The calendar date of the hearing alone is not enough to classify the release. Do not obtain a false “fresh CTL” merely by mislabelling the order, and do not lose the distinction by calling every grant “ordinary bail”.

A diary that can be independently checked

At the first custodial remand, the defence solicitor should open a record for each defendant and charge with the allegation, first remand, statutory regime, excluded first day, provisional expiry, holiday adjustment and next remand date. Retain the court order and obtain an independent check by a colleague or the firm’s checking process. A calculator can test arithmetic; it cannot decide which offence or statutory route applies.

At every subsequent event, record the date, source document and consequence: allocation; sending; new or amended charge; indictment; actual release; re-remand; accepted plea; legally effective trial start; extension notice; hearing; reasoned decision; appeal; abandonment; or another custody basis. Record why a period was counted, deducted or disregarded. Reconcile the defence, prosecution, court and custody-provider records promptly rather than assuming one is necessarily right.

A useful escalation message states: which defendant and charge; which remand and statutory period; the independently calculated expiry and assumptions; the discrepancy; the order or hearing needed; who must act; and when action must occur to prevent unlawful detention. The responsible solicitor owns the legal calculation and application; the court determines the order; the custodian implements it. Confirm implementation, not merely submission.

Continue the case, not just the clock. After a bail or remand decision, follow Case Management, Indictments and Disclosure to prepare trial effectively, the trial chapter for the actual start event, and the appeals chapter for the appropriate challenge. For a child, use the youth chapter’s remand and accommodation safeguards. An accurate CTL diary protects liberty, but it does not replace preparation, disclosure, participation or a properly argued bail application.

Authorities: Prosecution of Offences Act 1985, s 22(3), (5), (7)–(9) and (13); 1987 Regulations, reg 6 and regs 7–8; CrimPR, rr 14.21–14.22; O v Crown Court at Harrow, judgment, principal reasons and Article 5 analysis.

The court must assess good and sufficient cause and due diligence and expedition for an extension. Apply the precise period and consequences for the actual route explained above; do not interchange days, clear days and business days. Authority: Prosecution of Offences Act 1985 section 22 and the applicable Custody Time Limits Regulations.