How can delays in the criminal justice system affect a defendant’s sentence?

It is widely accepted by practitioners that the criminal justice system remains in disarray following the Covid 19 pandemic, with huge delays particularly in the Crown Court. Many defendants face months, if not years, on bail awaiting trial.

In addition, it is known that the police can take many months to investigate criminal offences and there can be lengthy waits while the Crown Prosecution Service (CPS) makes a decision on whether a suspect should be prosecuted or not.

None of these delays are the fault of the defendant, who often waits in a heightened state of anxiety fearing the next stage in his case. It therefore begs the question: how might these delays be reflected at the outcome of the case? Will the defendant be morally compensated with a slightly more lenient sentence?

The Sentencing Guidelines

The Sentencing Guidelines make clear that a delay in proceedings since apprehension will be considered a mitigating factor, effectively reducing the seriousness of the offence being dealt with. It indicates a reduction in sentence can be applied across the board in all types of criminal offences.  The General Guideline: Overarching Principles states that:-

“where there has been an unreasonable delay in proceedings since apprehension which is not the fault of the offender, the court may take this into account by reducing the sentence if this has had a detrimental effect on the offender.”

 Significantly, the Guidelines go on to say:-

“No fault should attach to an offender for not admitting an offence and/or putting the prosecution to proof of its case.”

Consequently, it is submitted that a defendant may still receive reduction in sentence regardless of how unmeritorious or frivolous the defence he runs at trial may be.

The Overarching Principles appear to set a two-stage test. First, what is the reason for the delay and, secondly, has the delay caused a detrimental effect on the defendant.

 “Not the fault of the offender”

The first part of the test requires the sentencing judge to consider what has caused the delay in proceedings.

The Sentencing Guidelines make clear that delays caused other than by the defendant may lead to a reduction in sentence.

Delays attributable to the Police & Crown Prosecution Service

In the case of R v Timpson [2023] EWCA Crim 453, the Court of Appeal commented on the unfortunately all too common scenarios seen in the criminal justice system when:-

“Offences are committed, they are reported promptly to the police who investigate them with reasonable expedition. The investigation concludes with evidence available to justify charging of the offender. Then, many months, sometimes years, pass before the offender is charged. That type of delay will result in some reduction in the eventual sentence, particularly in cases where the offender pleads guilty.”

Interestingly in this judgment, the Court appears to suggest that a sentencing Court may reduce sentence to different extents depending on the seriousness of the offence. The Court of Appeal commented “we observe that the reduction would be most unlikely to be as great as 25 per cent, particularly where the offences were serious, but some reduction would follow”.

It is submitted that Timpson is authority for the basis that if delay can be attributed to failings by the police or CPS, then a reduction to a defendant’s sentence should be applied.

Delays caused attributable to the Court

Article 6 of the Human Rights Act sets outs:

“In the determination of his civil rights and obligations or 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.”

The case of Timpson also addresses when delays in the court service mean that a public hearing may not take place within a “reasonable time”.

In his judgment, Lord Justice William Davis states:

“where the courts are faced with some unusual or exceptional circumstances, which create a significant backlog, the backlog leading to delays, there will be no interference at all with the defendant’s Article 6 rights, so long as the courts take remedial action insofar as they can.”

The judgment addresses the backlog caused by the Covid 19 pandemic and comments that given the Judiciary and HMCTS engaged in a “recovery programme”, a defendant’s rights under Article 6 would not breached.

It follows from this judgment therefore that delays attributable only to the Court’s backlog of listings is unlikely to lead to a successful submission that a reduction in sentence should be applied.

Delays attributable to the Defendant

The case of R v Iqbal  [2023] EWCA Crim 1583 provides an example of when blame for delay has been placed at the feet of an offender.

The Defendant was initially arrested in February 2018 for conspiracy to defraud. She contested the matter contending that she was acting under duress and a trial date was set for November 2019. She eventually pleaded guilty on a basis and was sentenced in April 2023. However, in the meantime, in October 2019 she set her house on fire and claimed this was the work of the gang who were forcing her to act under duress. She was convicted of arson and perverting the course of justice following this. The Court of Appeal affirmed the sentencing judge’s view that no reduction should be applied for the delay in proceedings as the November 2019 trial date had been vacated following her false allegation that her house had been set on fire by the people forcing her to act under duress.

“Detrimental effect on the offender”

The second limb of the test as to whether a reduction in sentence should be applied is whether the delay has caused a detrimental effect on the offender.  It would appear from the case law that this element of the test maintains a particularly high threshold.

In the case of R v Abadilla [2023] EWCA Crim 1772, it was argued that delay in the defendant’s trial being heard meant that the forming of a relationship with his newly-born son was disrupted. The defendant faced charges relating to sexual offences against a child and so there were restrictions on the level of contact he could have with his son. The Court of Appeal ultimately concluded that it was not the delayed trial that caused this disruption but the defendant’s proclivity to commit sexual offences.

It is submitted that a demonstrable and significant decline in a defendant's mental health caused by the anxiety of awaiting court proceedings to begin may be sufficient to satisfy this element of the test.

Conclusion

In light of the case law surrounding this issue, it would appear that a defendant seeking a reduction in sentence on account of delay faces a not insignificant hurdle. First, he is likely to have to demonstrate that delay in proceedings was down to the police or CPS not initiating a prosecution expeditiously. Delays caused by the court system are unlikely to be sufficient. Second, he faces the difficulty of collating evidence to show a detrimental effect suffered by him.

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