QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF D DALEY, M FORREST, H MCKENZIE, S MARKS||(CLAIMANT)|
|WOLVERHAMPTON CROWN COURT||(DEFENDANT)|
|THE CROWN PROSECUTION SERVICE||(INTERESTED PARTY)|
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MR D JONES (instructed by DPP) appeared on behalf of the DEFENDANT
Crown Copyright ©
"The service of the case was ordered by 20 December to allow time to prepare the case for an effective plea and directions hearing on 17 January. That hearing was ineffective for a number of reasons, but it is plain that one of the reasons was that the defence had not got, and so the defendants had not been able to see, any of the surveillance video evidence. I underline the word 'evidence' . . .
"The fact is that it is not for the defence to have to request the prosecution to serve its evidence."
There is then a reference to the order that was subsequently made in February requiring service of the video evidence by 13 February and the fact that the prosecution did not comply with it until 18 February. The judge then said:
"In my judgment . . . the evidence which is contained by way of video surveillance on video tapes is of crucial significance to any defendant wishing to prepare his case, and it is impossible for defence counsel or solicitors to advise on plea without having had sight, and without the defendant having had sight, of such evidence. It is in my view fundamental and cannot be put, as it were, to one side on the basis that it is fully described in witness statements . . .
"It is also inevitable and it must have been foreseen that it was inevitable that they would have to be produced as evidence. Maybe there needed to be mosaics in order for undercover officers not to be revealed on the tapes, but taking a maximum of 20 tapes and a maximum of 10 minutes or so each, in my judgment, there was ample time for the prosecution to do that so that they could have been served by 17 December. That they were not served before the plea and directions hearing was a significant contributory factor to that hearing being ineffective. That they were not served until late after the order for service by 13 February meant that the second plea and directions hearing was rendered ineffective . . .
"It follows from all that I have said, and it must be clear from all that I have said, that I cannot find in this case, despite the fact that the prosecution have in many other respects acted with considerable diligence and expedition, particularly in tracing solicitors and re-serving papers, I cannot find in relation to this crucial evidence that they acted with all due diligence and expedition. I also find that the lack of those videos was causative of the late fixing of the trial date so that it was fixed outside the custody time limit."
Finally, he added:
"Accordingly, I do not extend the custody time limits which will expire at midnight on 1 May 2003. It is to be hoped that in the light of this ruling the court, for it is the responsibility of the court, not for the prosecution, the court can find a judge and a court room to try the case before the custody time limits expire. If that is not possible, then at that time the defendants will have to be admitted to bail. As to conditions, that is a matter to be canvassed at that time and not today."
"Now here, as I have explained, this case could not have been tried either here or elsewhere before 28 April, no matter when or how early this year the plea and direction had been held."
In other words, he was taking the view that accepting a degree of lack of due diligence and expedition, albeit mistakenly assuming that to have been found only to have been 5 days, that lack of due diligence and expedition had not affected the listing date because the case could never have been listed before 28 April, and when 28 April came to be vacated, that was not the result of any act or omission on behalf of the prosecution; it was the result of cases overrunning and other vicissitudes of daily life in a busy Crown Court centre. He added:
"It seems to me that in order to succeed with an application the Crown must, on the balance of probability, demonstrate two things. The first is that the need for the extension of the custody time limit is due to some good sufficient cause, and secondly, that the prosecution has acted with all due diligence and expedition. As I read the authorities, the second question only arises if the first is proved, and only arises adversely if the failure contributes to the need for the extension. It is not a freestanding bar to an extension whatever the reason why the extension is applied for. I am therefore satisfied that there is good and sufficient reason why the time limits here should be extended, and I am satisfied that the Crown have acted with due diligence in the sense that their failure at an earlier stage to supply the videos on time did not contribute in any way to the need for them to seek the present extension."
"At that stage, the earliest certain date the listing officer could offer was May 28 . . . the judge asked that that date should be taken but requested the listing officer to see if an earlier date could be found. She did canvass Birmingham, Stafford, Shrewsbury, Stoke, Nottingham, Northampton, Warwick, Coventry and Worcester. None could offer an earlier date and several reminded her that they did not have any court rooms big enough to accommodate a case of such size."
"When she began looking for a judge to hear this case on March 27 there was no judge available from April 28 for 5 weeks."
What is not apparent to me from the ruling is that a similar investigation took place as to what the listing possibilities would have been if the plea and directions hearing had taken place not on 13 March, but on 17 January or 21 February. It seems from one document placed before me that on 24 January, another case in Wolverhampton called Britain and Others was fixed for 7 April. That was an important case involving five defendants.
"It will rarely be appropriate to grant permission to apply for judicial review [I know that might seem like closing the stable door after the horse has bolted] when the outcome has become academic because the proceedings have moved on or would have moved on to the next stage."