England and Wales Court of Appeal (Criminal Division) Decisions

DAVID PATRICK KIMBER, R v. [2001] EWCA Crim 643 (21st March, 2001)

Case No: 1998/05230/Y5

Neutral Citation Number: [2001] EWCA CRIM 643

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 21^st March 2001

LORD JUSTICE POTTER:

1. On 2^nd March 2001, we allowed an application by the Crown Prosecution Service ("CPS") to extend the time within which to re-arraign David Patrick Kimber ("the appellant") upon an indictment alleging the murder of Maria Vertannes to Friday 16^th March 2001 and we dismissed a cross application by the appellant to direct a verdict of not guilty to that indictment. We now provide the reasons for that decision.

2. On 23^rd July 1998 in the Crown Court at Bristol (before Mr Justice Owen and a jury), the appellant was convicted of murder and was sentenced to life imprisonment. On 10^th November 2000, based upon the decisions in Luc Thiet Thuan v. R. [1996] 1 All ER 1033 and R. v. Smith (Morgan) [2000] 3 WLR 654, another division of this Court (Henry LJ, Hooper J and Goldring J) allowed his appeal against conviction and ordered a re-trial. The Court directed that the appellant be re-arraigned on a fresh indictment at Bristol Crown Court within two months. Because of shortage of time, the Court did not then give its reasons which were subsequently handed down on 19th December 2000.

3. On 16^th November 2000 the Registrar of Criminal Appeals wrote to the Court Manager at Bristol with copies to the CPS and the defence. As is customary, the letter included the observation:

"As you will know, it is the responsibility of the Crown to see that a fresh indictment is preferred against Kimber but it is the responsibility of the listing officer to ensure that he is arraigned within a period of two months from 10 November"

4. That letter was received by the CPS on 20^th November 2000 and, on the same day, a fresh indictment was lodged by the CPS with the Bristol Crown Court accompanied by a covering letter which brought to the attention of the court manager the need for re-arraignment within two months.

5. Without the earlier notice or communication to the CPS or the chambers of counsel concerned in the case on either side which is customary, the Court listed the case for a preliminary directions hearing on Monday 18^th December 2000. The case simply appeared in the daily lists for that date which were faxed to the office of the CPS at 3.30 p.m. on Friday 15^th December. On that day, Miss Cassidy, the CPS employed barrister with overall responsibility for the case, was on annual leave and the caseworker assigned to the case was away training. The Trials Unit Business Manager was aware that the matter was listed before the Court of Appeal on Tuesday 19^th December 2000 for the handing down of the formal judgment in the appeal and was not expecting, or alert to the possibility, that the case might be listed in the Bristol Crown Court before that date. The result was that the listing of the case for Monday 18^th December was overlooked.

6. Unfortunately it was also overlooked in the chambers of prosecuting counsel. Consequently, no one was in court for the prosecution when the Recorder of Bristol, His Honour Judge Dyer, was ready to hear the matter. The Court contacted the clerk to prosecuting counsel by telephone. Miss Penny Wilson of those chambers happened to be present at court on another matter and was contacted by her clerk in order to assist. She had no papers and no knowledge of the case whatsoever.

7. However, junior counsel for the defence was present, expecting Mr Kimber to be arraigned. We take what then happened from his draft affidavit which is before us. Miss Wilson indicated to him that she had been instructed to represent the Crown and to apply for the case to be adjourned pending the handing down of the approved judgment of the Court of Appeal on the next day. He could see no reason why the re-arraignment could not take place as the appellant was undoubtedly going to plead not guilty and he pressed Miss Wilson to allow him to be arraigned, indicating that he had prepared a plea and directions form which dealt with all the details required. However, Miss Wilson, knowing nothing about the case, said that she proposed to apply for an adjournment. Defence counsel then told Miss Wilson that, as she had had so little involvement in the case, he would summarise the position to the Recorder of Bristol and set out the nature of her application. He then addressed the court.

8. Within our summary of defence counsel's draft affidavit we now interpolate the transcript of what occurred in court.

"DEFENCE COUNSEL: .... I can summarise the position thus: there was a trial in respect of this matter in the spring of 1998. Thereafter, appeal proceedings were launched which were delayed pending the decision of the House of Lords in respect of an important authority. A hearing was ultimately heard and the Court of Appeal ordered that the 1998 case be retried. Miss Wilson, who has hitherto had absolutely no involvement in the case whatsoever - and I thank her for standing in the breach at such a late stage - is instructed to apply for the case to be adjourned and I make no opposition to that application. Mr Kimber is in custody and I do not make an application about that either.

JUDGE DYER: You are content with that, that it should be adjourned to a date to be fixed?

MISS WILSON: My Lord, yes.

JUDGE DYER: It is not suitable at the moment having a plea and directions hearing, but I do not think we can just leave it in abeyance. I think it ought to be brought back in front of me for something by, say, 15^th January.

DEFENCE COUNSEL: Yes.

MISS WILSON: My Lord, I would agree with that and a date can be fixed for a plea and directions hearing.

JUDGE DYER: Yes, plea and directions hearing, 15^th January 2001. And there is no problem with custody time limits before that date? (Conferring with clerk) Thank you.

Well, David Patrick Kimber, I will see you on ... the 15^th is not a Sunday is it? Just to make quite certain I have not just happened to have picked a Sunday (conferring with clerk). Monday. Very convenient. Right thank you. Thank you. Yes, Monday, 15^th."

9. We shall return to analyse this exchange. Suffice it to say here that defence counsel entirely failed to mention the time limit for re-arraignment either to Miss Wilson or to the Court. This was not an oversight. Returning to his draft affidavit, he has frankly set out why he did not do so.

10. Defence counsel deposes that, before coming to court, he familiarised himself with the order of the Court of Appeal confirmed in the letter from the Registrar, and it was clear to him that, if the prosecution did not secure re-arraignment by 10^th January then, under s.8(1)(b) of the Criminal Appeals Act 1968, the defence would be entitled to apply for the order for a re-trial to be set aside and a verdict of acquittal entered. However, he states that he considered it the responsibility of the Crown alone to ensure the timely arraignment of Mr Kimber and that it was no part of his duty to draw the potential time limit to the attention of the prosecution or the court. He asserts that if he did so, he could rightly be criticised by Mr Kimber and his professional clients for doing an act which is expressly not in the interest of Mr Kimber, and he cites paragraph 12(1) of the Code of Conduct for the Bar of England and Wales (7^th ed) ("the Code") which reads:

"When defending a client on a criminal charge, a barrister must endeavour to protect his client from conviction except by a competent tribunal and upon legally admissible evidence sufficient to support conviction for the offence charged"

11. He also refers to paragraph 303(a) which reads:

"A barrister must promote and protect fearlessly and by all proper and lawful means the lay client's best interests and do so without regard to his own interests or to any consequences for himself or any other person including any professional client or other intermediary or another barrister."

12. Finally, he confirms that he was also aware of paragraph 302 of the Code which reads:

"A barrister has an overriding duty to the court to act with independence in the interests of justice: he must assist the court in the administration of justice and must not deceive or knowingly or recklessly mislead the court."

13. In this respect he states that, if he had been asked whether there were any difficulties with regard to the order imposed by the Court of Appeal on 10^th November then, under paragraph 302, he would have regarded himself as obliged to answer the question and assist the court. However, as he was not so asked, he made no mention of the date. He also states that, subsequently, he informed leading counsel of what had happened and asked if counsel were under a duty to inform the Crown of the time limit point. He was advised that he was under no such obligation and that the Crown would in all probability rectify the situation within the next three weeks. For those reasons he did not inform the Court or Miss Wilson of the impending time limit.

14. Unfortunately the Crown did not rectify the situation for the following reasons. On the basis that defence counsel agreed to the adjournment to 15^th January 2001 (the date suggested by the Court), Miss Wilson too consented, lacking as she did any reason or information which would cause her to question that as an appropriate date. She, or her chambers, then reported the date back to the CPS. Miss Cassidy has deposed that the Trials Unit Business Manager of the CPS received a telephone call from Miss Wilson's chambers to the effect that the case had been adjourned to 15^th January 2001. However, because the Business Manager was aware that the case was listed for formal judgment in the Court of Appeal on 19^th December 2000 she did not appreciate the importance of that date. As to Miss Cassidy herself, having heard that, as a result of the hearing on 18^th December, the case had been adjourned, she assumed that it had been properly re-listed within the relevant eight-week period which was known to the court and thus she did not think it necessary to check the file to ensure that was so.

15. Nor, following Judge Dyer's order, did the listing office at Bristol Crown Court pick up the error that had been made. It was the Senior Listing Officer at Bristol Crown Court who had the responsibility for the listing of the case. Having arranged for the matter to be listed and dealt with by way of re-arraignment before the Recorder of Bristol on 18^th December 2000, he checked the Court's computer records before the Christmas break and saw that the plea and directions hearing had been adjourned to 15^th January 2001. However, he made the assumption, with nothing to suggest otherwise, that the re-arraignment had taken place on the 18^th December, the question of directions being put over to the New Year. It was only after the adjourned hearing on 15^th January 2001 that he learned that the defendant had not been arraigned on 18^th December, and as a result, the deadline of 10^th January 2001 had not been met.

16. Before turning to the law it is appropriate to gather together the strands of what happened and to reach appropriate conclusions of fact. First, it is clear that all parties (including the Crown Court at Bristol) had been informed of the time limits. Quite properly, steps to have the case listed quickly were put in hand so that the case was, in fact, brought before the Court before the judgment of the Court of Appeal (announced orally at the conclusion of the hearing) had even been handed down.

17. Secondly, at the hearing before Judge Dyer, the Court and the prosecuting counsel proceeded in total ignorance of the deadline and were not enlightened. In his draft affidavit, defence counsel does not identify two other provisions of the Code (at paragraph 708) which read:

"A barrister when conducting proceedings in Court:
...
(c) must ensure that the Court is informed of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable towards the contention for which he argues;

(d) must bring any procedural irregularity to the attention of the Court during the hearing and not reserve such matter to be raised on appeal; ..."

18. We consider it is clear that the duty of defence counsel was not, in the events which happened, limited in the manner he has propounded (see paragraphs 10-13 above). Having undertaken to summarise the position to the Court, on the basis that Miss Wilson was ignorant of it, he was plainly obliged to do so in such a way as to put the judge fully in the picture as to the deadline for re-arraignment so that he could make an informed decision as to the appropriate order to make. Not only did he fail to do so, but he agreed the date of the 15^th January knowing full well that by that date it would not be open to the Court to proceed with a plea and directions hearing as envisaged. Finally, knowing that he was the only one in court acquainted with the details of the case, he remained silent when the Judge specifically raised the question of the custody time limit. There was, of course, no problem with that particular limit: there was, however, a time limit far more fundamental which gave rise to the prospect that, if the case did not come back before then, Mr Kimber would be entitled to a verdict of not guilty. It is clear to us that, by summarising the matter to the court in the general way he did, without any reference to the deadline of which he was well aware, and by saying "Yes" when Judge Dyer suggested the date of 15^th January 2001, defence counsel represented to the court that such date was an appropriate date when it was not.

19. In this Court, Mr Neil Ford Q.C. for the appellant has not sought to defend defence counsel's failure to inform the Court of the deadline of 10^th January 2001. Mr Ford submitted that allowance had to be made for the fact that he had to make a difficult decision on the spur of the moment. That is an entirely fair point, but it is also appropriate to note that defence counsel remained of the view that he had behaved perfectly properly, at least up to the time that his draft affidavit was served.

20. In R. v. G. B. L. (28^th November 2000, unreported) the Court of Appeal dealt with a case in which the judge had failed to direct the jury appropriately. Having dealt with the point of law, Latham L.J. observed:

"It is a matter of regret that the judge's attention was not drawn to the fact that he failed to direct the jury in accordance with that principle. That seems to us to be an obligation which lay on both counsel in the circumstances of a case such as this. Judges are entitled to assistance from counsel in relation to directions as to the law, and it seems to us that it is important that counsel should appreciate that that duty rests on both the prosecution and the defence."

21. The same is in our view true in relation to matters of the kind arising in this case. Quite apart from the provisions of the Bar Code, an advocate (whether barrister or solicitor) should not do anything which encourages or knowingly permits the court to proceed on a false basis.

22. We turn now to what happened subsequently. In relation to Miss Wilson, we do not criticise her at all. She was in no way responsible for the mistake made by the court, having stepped in at minimal notice and being unaware of the deadline. Thereafter she reported back to the CPS the date of the adjourned hearing. As for the CPS, the matter having been expeditiously brought before the court well within the time limit, the assumption was simply made that the directions given by the court had been given in the knowledge of, and so as to comply with, the time limit; it simply did not occur to Miss Cassidy that the court would have proceeded in ignorance of the time limit. Thus, the CPS were aware of the need for expedition; however, the relevant lawyer believed that the requirement had been satisfied.

23. With that analysis, we now turn to the law. Section 8(1) of the Criminal Appeals Act 1968 as amended by section 43(3) of the Criminal Justice Act 1988 provides:

"(1) A person who is to be tried for an offence in pursuance of an order under section 7 of this Act shall be tried on a fresh indictment preferred by direction of the Court of Appeal but after the end of two months from the date of the order for his re-trial he may not be arraigned on an indictment preferred in pursuance of such a direction unless the Court of Appeal give leave.

1(A) Where a person has been ordered to be tried but may not be arraigned without leave, he may apply to the Court of Appeal to set aside the order for re-trial and to direct the court of trial to enter a judgment of acquittal of the offence for which he was ordered to be re-tried.

1(B) On an application under sub-section (1) or (1A) above the Court of Appeal shall have power - (a) to grant leave to arraign; or (b) to direct the entry of a judgment and verdict of acquittal, but shall not give leave to arraign unless they are satisfied - (i) that the prosecution has acted with all due expedition: and (ii|) that there is a good and sufficient cause for a re-trial in spite of the lapse of time since the order under section 7 of this act was made."

24. The leading authority upon the approach to the section is the case of R. v. Coleman (1992) 95 Cr App R 345, another case in which a series of oversights had occurred, leading to the expiry of the time limit for re-arraignment under an order for re-trial following an appeal, following which the prosecutor applied for leave to re-arraign the defendant out of time. In respect of that application, Lord Lane CJ, stated:

"This Court, we remind ourselves, in the terms of the Act "shall not give leave to arraign unless they are satisfied that the prosecution has acted with all due expedition" - the second limb does not affect us, that has been satisfied.

The way in which, it appears to us, it should be approached is this. Can we be satisfied that the prosecution have acted with all due expedition? If we cannot, then we are obliged to refuse the application. "Expedition" in this context must mean promptness, or possibly speed. It is certain that in the circumstances which we have described, there was no promptness or speed exhibited by the applicant. The reason there was no promptness or speed was because no one realised that promptness or speed was required.

What then does the word "due" mean? If it means "required in all the circumstances of the case" and no more than that, it might be possible to say that since Hawker's appeal had yet to be heard, and since the two men would clearly have to be retried together, no amount of promptness was required, and any promptness that was required was minimal. Consequently the required speed was achieved. That is one interpretation of the word "due".

If on the other hand it means simply "reasonable" or "proper", which would on the prima facie reading of it seem to be the case, then the prosecution have not exercised "reasonable and proper" speed. They forgot all about this necessity, if ever they knew about it, and did not take the action until someone jogged their elbow very many months later.

True it was that there was some mix up and difficulty between the Crown Prosecution Service, the Crown Court at Grimsby and the Criminal Appeal Office. But it was open to the Crown Prosecution Service, the applicant here, to take steps at very early stage to expedite matters and to see that application was duly made within two months. That they did not do, for reasons which we have already explained.

We conclude in the circumstances that it is the latter meaning of the word "due" which is correct. The fact that co-incidentally their inefficiency, purely owing to extraneous factors, did not cause any great delay to Coleman in his trial is neither here nor there. It does not mean that they have acted with all due expedition. They have failed to comply with the terms of the Act which we have read out, simply because they never appreciated that expedition was required.

It seems accordingly we are obliged by the wording of section 8, as amended, to decline to give leave to arraign. Consequently this application fails."

25. The court then directed that the court of trial enter a verdict of acquittal of the offences of burglary and robbery (which had led to a sentence of 10 years imprisonment) on which the defendant had been ordered to be re-tried.

26. In opposing the application to extend time within which the arraignment must take place, and in support of the cross-application by the appellant to set aside the order for re-trial pursuant to section 8, Mr Ford QC has submitted as follows. He accepts that the prosecution acted expeditiously in sending an indictment to the Bristol Crown Court with a covering letter indicating that the Court of Appeal had ordered re-arraignment within two months of 10^th November 2000. However, he submits that the prosecution did not discharge its obligations to act expeditiously simply by submitting an indictment to the Crown Court and requesting an arraignment within two months of the order for re-trial: see R -v- Horne, The Times, February 27^th 1992 CA; see also R -v- Coleman (above).

27. Mr Ford argues that it should have been a straightforward task to ensure arraignment within two months of the order of the Court of Appeal and that the time limit, like any limitation period, should have been placed in an appropriate diary in the offices of the CPS. He submits that the only reason the matter was not properly dealt with by a re-arraignment on 18^th December 2000 was because the CPS, not having made any special enquiry, failed to pick the matter up from the court list delivered by 3.30 p.m. on Friday 15^th December. Having, by omission, failed to brief counsel for that day, the CPS placed counsel instructed at the last moment in a position where she was applying for an adjournment of the plea and directions hearing without knowledge of the relevant deadline for re-arraignment. Thus counsel was not in a position to ask the court for an earlier date than that suggested by the court of its own motion and agreed to by defence counsel.

28. Mr Ford further submitted that it was no part of the duty of the defence to assist the prosecution in securing a re-arraignment and that, once the date of the adjourned hearing had been communicated to the CPS, it still had three weeks in which to secure re-arraignment within the appropriate time. This could have been done had the CPS dealt with the case properly and monitored its progress with appropriate care and attention. In those circumstances, Mr Ford submitted that the prosecution, far from acting with "all due expedition" had failed to act with any expedition at all following its submission of the indictment to the Bristol Crown Court.

29. Mr Mark Evans QC for the CPS submitted that the fact that the case had been listed at very short notice and not picked up either by the CPS or by prosecuting counsels' clerk was not a consequence of want of all due expedition. The case was, in the event, listed for re-arraignment well within time. Thereafter, it was perfectly reasonable, he argued, for Miss Cassidy to proceed on the premise that the matter had been before the Court, that the Court, aware of the deadline from the CPS's letter, had dealt with the case appropriately and that the position of the retrial was protected. Following the language of Coleman "reasonable or proper promptness or speed" had been demonstrated and the CPS had discharged its duty adequately. He also underlined that the intervening Christmas vacation meant that little working time was in reality available between the initial and the adjourned hearing.

30. In our view, the words of the Act require the court to be satisfied that the prosecution has acted with all due expedition (or in the language of Coleman `reasonable or proper speed') to procure that re-arraignment of the defendant takes place within the two month period required. In deciding whether or not that is so in a case where the deadline has been missed, the court does not look simply at the end result, nor does it conduct a minute examination of the systems employed in the offices or chambers of those involved in the prosecution. It simply looks to see whether, within the system as it ought to operate, reasonably expeditious steps for re-arraignment have been taken. If, as in Coleman, it appears that the prosecution were unaware of the existence of the statutory deadline and hence took no steps to comply with it, there must by definition have been an absence of due expedition. If, however, the prosecution are aware of the requirement and take steps, but fail, to comply with the time limit, one looks to see whether the steps taken were reasonably expeditious, albeit they did not achieve that result. This involves a broad post mortem of events of the kind which we have conducted above and a judgment as to the reasonableness of the acts (or omissions) in all the circumstances.

31. Taking that broad approach, we accept Mr Evans' analysis. It is not in dispute that, with knowledge of the necessity to re-arraign within two months, the CPS duly applied for, and obtained, a date. Despite the oversight of the CPS and prosecuting counsel's chambers in respect of the date listed for re-arraignment (in respect of which the short notice could really afford no proper excuse), prosecuting counsel was in fact present upon 18^th December when the events we have described took place before the Recorder. Whatever the deficiencies in Miss Wilson's instructions (and whether the failure of the prosecution in this respect could properly be regarded as a lack of expedition is arguable) it seems plain to us that she at least, as the representative of the prosecution, was entitled to assume that the date given for the adjourned hearing was within the deadline. The court had offered it and defence counsel, who had offered to present the matter to the court, had assented to that date.

32. That being so, it seems to us that the question simply becomes whether or not the failure of the CPS following that hearing to check that the adjourned date was indeed within the deadline amounted to an absence of due expedition/reasonable promptness in securing the re-arraignment. We consider that in the particular circumstances and, in particular, the reasonableness of assuming that the court had been aware of the deadline for re-arraignment, reasonable expedition has been established on the part of the prosecution.

33. We have considered with care Mr Ford's submission that a proper office diary system of the type used by solicitors to note limitation dates in relation to their litigation files should have been, but was not, in place in the offices of the CPS, ready reference to which would have avoided the error. It appears that no such system was in operation and it was only by checking the record in the case file, (which Miss Cassidy failed to do) that the mistake would have been revealed. That is a point of some force, and no doubt the offices of the CPS will be well advised to act upon it. Nonetheless, the question before us is whether or not in this case the prosecution displayed reasonable or proper expedition to procure re-arraignment. While in broad terms the reasonableness of the steps taken fall to be judged against the background of the system in which they operate the focus is upon the actual steps taken or omitted to be taken to re-arraign this appellant. As we have already indicated, it seems to us that the steps taken up to 18^th December were indeed expeditious and that, thereafter, although no further steps were taken, that was so in the reasonable belief (albeit mistaken) that they were not necessary. It was reasonable of the CPS to assume that the case had been properly dealt with by the court on that date, and the failure of the CPS to check that the order made by the court was appropriate does not in all the circumstances mean that they failed to act with due expedition.

34. Mr Ford did not suggest that there was not a good and sufficient cause for a retrial in spite of the lapse of time since the order for retrial (the matter to which the second limb within section 8(1B) of the Act is directed) and we are satisfied that there is. Thus, the CPS have satisfied the tests set out in the Act and, for that reason, we have extended the time for re-arraignment to Friday 16^th March 2001, making it clear that it should, in any event, take place as soon as possible.

35. As will be apparent from the terms of this judgment, there are serious lessons to be learned by those responsible both for prosecuting and defending in cases of this nature, as well as by the Court Service, in order to ensure that the problems with which we have had to grapple in this case do not to re-occur.