Delay in the Criminal Justice System: a Defence Perspective

By Connor Byrne

The impact of delay on victims of crime has been placed at the heart of the conversation around delay in the criminal justice system (article here). However, if you are accused of a crime, the impact of delay in your case progressing and concluding can be just as serious. It is important to be aware of the different ways in which delay can arise, and the ways that delay can be dealt with in the correct circumstances. This article will consider delay from the defence perspective from allegation an allegation being made all the way through to sentence.

Before Court

The first form of delay to note is a delay in an allegation being made, or an investigation commencing. Summary only offences generally have a time limit of 6 months from the date of the alleged offence, or the ‘matter of the complaint being known’ i.e. the complaint being made or the person being identified (s.127 Magistrates Courts Act 1980).

However, indictable offences (meaning both either way offences and indictable only offences) have no such time limit. This means that a police investigation may begin years or decades after the events concerned.

In cases where an allegation dates back years or decades, there are additional issues to consider and overcome. Memories fade, and documentary evidence may have been lost. These issues might affect the ability to put forward a defence case but can also affect whether there is sufficiently reliable evidence to charge.

Police bail

Following arrest and interview, if the police are not ready to either charge a suspect with an offence, or determine that no further action will be taken, then the suspect will be released on police bail or released under investigation. 

In summary, being released on police bail means that a person is required to attend the police station at a future date, and the police may also impose bail conditions. Further information can be found here.

The length of time a person is on police bail may vary, but it is usual for the initial bail period to be 3 months. A further extension up to the 6-month mark must be authorised by an Inspector, and a further extension up to the 9-month mark must be authorised by a Superintendent. Any subsequent extensions of police bail must be authorised by a Magistrate every 3 months, and there is no legal limit to the length of time a person may be on police bail, but the Court must be satisfied the investigation is being conducted diligently.

Release under investigation

Instead of being released on police bail, or following a period of release on police bail, a suspect may be ‘released under investigation.’ This means that the police have not concluded their investigation, but there are no bail conditions and no requirement to report to the police station on a future date. There is no legal limit on the length of time a person can be released under investigation.

Unfortunately, the period of release under investigation can often be several months or even years. During this period, defence lawyers can continue to be in contact with the police to request updates and keep the person under investigation informed of any changes or developments.

At Court: Waiting for Trial

If you are charged with a criminal offence, your decision as to whether you will plead guilty or not guilty will be a factor in how long it will take for your case to be finished. If a person pleads guilty, it is likely that the case will be dealt with in a shorter timeframe, as in most cases, the next step after a guilty plea will be sentence.

The remainder of this article will consider delay for those who plead not guilty. For those waiting for trial, the amount of time you will wait will vary significantly depending on a number of factors.

Delay in the Magistrates’ Court

Whilst the phrase ‘summary justice should be speedy justice’ is often used, Magistrates’ Courts are not immune to delays and backlogs. For example, the Ministry of Justice data states that the average wait at the Magistrates’ Court, for a defendant who has pleaded not guilty to one or more summary offences, is now 217 days from their first appearance to the end of the case.

A recent report by Transform Justice sets out observations from volunteers who watched over 2,300 hearings in Magistrates’ Courts in London. In that sample, 37% of hearings ended in a delay or adjournment. Whilst some adjournments, such as an adjournment for a Pre-Sentence Report, are to be expected, other sources of delay such as defendants not being produced from custody or IT issues give rise to greater cause for concern. 

Delay in the Crown Court

Delays in the Crown Court have dominated the headlines in recent months, and the seriousness of this issue cannot be underestimated. The Ministry of Justice data states that the average wait for those who enter not guilty pleas is 60 weeks. This statistic refers to cases which concluded in July to September of 2025; it is very possible, if not extremely likely, that those entering the system now face even greater average delays. In our experience, it is not unusual for trials now to be listed into 2029 or 2030 in some London Crown Courts.

One significant factor affecting delay before trial is whether a person is awaiting trial on remand (in prison), or on bail.

For those in prison, a shorter delay is common, as the Crown Court will prioritise their cases.  The Prosecution of Offences (Custody Time Limits) Regulations 1987 sets out the time limits for those awaiting trial in custody. The custody time limit is the period of time a person can be kept in custody awaiting trial. This period is set as 182 days for most Crown Court cases and ends when a defendant pleads guilty or a jury is sworn. However, it is frequently now the case that Crown Courts cannot list a trial within that 182-day time limit, and applications to extend the custody time limits are often accepted on the basis that it was impossible to list the trial any earlier. 

In the recent case of R (Bernard) v The Crown Court Sitting at Snaresbrook [2025] EWHC 3055 (Admin), the High Court questioned such extensions becoming automatically acceptable, finding that the fact there is a backlog of cases or resourcing issues in the Crown Court would not always be a ‘sufficient cause’ to extend a custody time limit and that ‘rigorous scrutiny’ should be applied before extending a custody time limit in such cases.

Delay and Sentencing

If a person is convicted following a trial, the delay they have faced can have an impact on the sentence they receive in two significant ways. 

Firstly, delay can be a mitigating factor where ‘there has been an unreasonable delay in proceedings since apprehension’. This means that this mitigation may apply when there has been a delay in the investigation or Court proceedings and would not apply where there has been a delay in an allegation being reported. The Court may take such a delay into an account where the delay is ‘not the fault of the offender’ and the delay has had ‘a detrimental effect on the offender’.

Secondly, if a person awaits trial on bail with a condition of an electronically monitored curfew for 9 hours or more a day, this is called a ‘qualifying curfew’. Section 325 of the Sentencing Act 2020 identifies that such a qualifying curfew should be reflected in any sentence of imprisonment. This is because an electronically monitored curfew for 9 hours or more a day already represents a significant deprivation of liberty. Two days spent on qualifying curfew must result in one day being deducted from a sentence of imprisonment. 

Conclusions

It is important to recognise that the wheels of justice are turning slowly at the moment and the impact for those accused of a crime and their families. Whether this is likely to improve, even with the proposed reforms, is uncertain. Further comment will follow in considering Part 2 of the Leveson Report, published recently, and whether inefficiencies identified and the solutions proposed are likely to reduce delay.

If you require advice or further information in relation to anything raised in this article, please contact our team.

SPEAK TO OUR TEAM TODAY