QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF TAHERI||(CLAIMANT)|
|LUTON CROWN COURT||(DEFENDANT)|
|CROWN PROSECUTION SERVICE BEDFORDSHIRE BRANCH||(INTERESTED PARTY)|
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(Official Shorthand Writers to the Court)
MR W ALEESON (instructed by Crown Prosecution Service Bedfordshire) appeared on behalf of the INTERESTED PARTY
Crown Copyright ©
Friday, 5th September 2003
"It is extremely unfortunate that his trial listed for today is not able to commence today. The reason for that I set out in the judgment which I gave not long ago today in dealing with Mr Miller's application to sever the indictment. The position is that at the plea and directions hearing this was said to be a case that would last five to seven days. I am told, although the court has no record of it but both parties agree, that when the matter was before the court on 23rd April it was said to be a two week case [I interpose that no doubt it was said to be between counsel a two week case but, as I have already observed, that conclusion was not vouchsafed to the court during the hearing]. Now the case has been listed before me today and there is not two weeks in which to hear the case because I am not going to be here beyond the end of next week."
Towards the end of his ruling he proceeded:
"I take the view that it is open to the court to grant an extension as sought in the circumstances which have arisen in this case, in which it has become impossible, through no fault of the prosecution or the defence or the court, to try the case on the date on which it was fixed for trial and impossible to fix a new date today without further investigation as to when that new date should be but in circumstances in which that new date will not be long away. In my judgment, it is open to me to extend custody time limits on the facts of this case and I regard it for the reasons I set out as correct and proper to do so."
He then proceeded to list the matter for mention on Wednesday 30th July for those alternative arrangements to be considered.
"The Court has worked hard to obtain an earlier date, both here or anywhere else in the region, and although I had hoped that a date in August might be capable of being found, that has proved not to be possible. We have therefore vacated a case from the list on 15 September and done so in order to free the necessary two weeks for this trial to take place, starting on that date."
"Looking at the whole history of this case, in which the first plea and directions hearing took place in December 2002, defence counsel indicated that there would be a severance argument, and directions were given for that to be supported by skeleton arguments and to be made at a separate hearing. That hearing was on 30 January. The application to sever failed, and the case was fixed shortly thereafter for 24 April. The custody time limit had to be extended for the purpose of that fixture, and they were extended and everybody was set up for a trial on 24 April. That trial did not go ahead ... through no fault on the prosecution's part, but wholly because the Defendant wanted the fixture broken because he wanted to be represented by different solicitors, or the solicitors previously acting for him did not want to act for him any longer ... The fact is that the initiative on that occasion came wholly from the Defendant's side. But for that, no doubt His Honour Judge Moss would not, on 23 April, have broken the fixture for the following day. Courts do not break fixtures lightly, but it had to be done because of the necessary change of representation on the Defendant's side.
The case was re-fixed for 23 July."
I pause at this point of the judge's ruling in order to note that no submission was made on behalf of the claimant to Judge Burke on 30th July that any criticism was to be made of the listing which had taken place for 23rd July. That is relevant to a submission which Mr Gledhill made to me this afternoon. I continue from the ruling:
"It is said that on 23 April the Court was informed that the length of trial would be two weeks, and not the original estimate of five to seven days. There is no record on the court file that that was so, and there is no letter from either the CPS or the defence solicitors confirming that so far as I am aware. Mr Miller has said that there was a mistake by the Court. That is possible. It is not possible now for me to determine what precisely happened. What is clear is that when the case was to be heard by me on 23 July, it was to be heard by me on the basis that it was going to be substantially shorter than two weeks ...
Now a further date has been obtained and, in my judgment, there is good and sufficient cause for extension of the custody time limits. The good and sufficient cause arises both out of the history that I have described and out of the need, in my judgment, to retain Mr Taheri in custody pending the trial of this case. This is a case in which substantial allegations are made of threat and intimidation, and there is a risk of interference with witnesses - and a real risk of interference with witnesses - if Mr Taheri were not in custody as he is. The reality is that the good and sufficient cause here primarily has to be based on the need for the limits to be extended pending a trial, which, as a result of the efforts that the Court has made will not be too long delayed. I recognise that it is some weeks, but it is much shorter than it otherwise might have been. In my judgment, looking at the whole of the matter, there is good and sufficient cause for the extension of custody time limits, and I am quite satisfied that there is no evidence that the prosecution has failed to act with all due diligence and expedition."
"The appropriate court may, at any time before the expiry of a time limit imposed by the regulations, extend, or further extend, that limit; but the court shall not do so unless it is satisfied -
(a) that the need for the extension is due to ...
(iii) some other good and sufficient cause and;
(b) that the prosecution has acted with all due diligence and expedition."
"... there is an almost infinite variety of matters which may, depending on the facts of a particular case, be capable of amounting to good and sufficient cause. It is neither possible nor desirable to attempt to define what may or may not amount to good and sufficient cause in any given case, and it would be facile to propose any test which would be applicable in all cases. All must depend on the judgment of the court called upon to make a decision, which will be made on the peculiar facts and circumstances of the case in question, always having regard to the overriding purposes to which we have made reference above.
The courts have held, although reluctantly, that the unavailability of a suitable judge or a suitable courtroom within the maximum period specified in the regulations may, in special cases and on appropriate facts, amount to good and sufficient cause for granting an extension of the custody time limit [Lord Bingham then referred to examples in previously decided cases] ... This is, however, a cause to be approached with great caution. We respectfully adopt the observation of Auld LJ in Abu-Wardeh's case  1 WLR 1083, 1090:
'After much hesitation, I have come to the view that there is no indication in section 22(3), considered below or in its statutory context, that the words 'good ... cause' should be construed in any stricter sense than that the suggested cause must be a reason for postponement of the trial and, for that reason, an extension of the custody time limit. In applications based on unavailability of a judge or courtroom, as on any other cause, the judge has another means of ensuring that it does not subvert the statutory purpose of speedy trial for those in custody. It is to examine the circumstances rigorously to determine whether the cause is also 'sufficient' for any extension and, if so, for the length of extension sought. As the authorities to which I have referred make plain, each case must be decided by the judge hearing the application on its own facts. On such an issue, the issue of sufficiency, I consider that the judge is entitled to have regard to the nature of the case and any particular limitations that that may impose to the status and seniority of the judge to try it and to the difficulty of making such a judge available. He must decide in the circumstances whether any such difficulty is a sufficient cause and a sufficient cause for an extension of the length sought.'
We also adopt observations very recently made by Toulson J sitting in the Crown Court at Winchester in Reg v Blair and Bryant; Reg v Taylor:
"Wearing my hat as presiding judge of this circuit I am all too aware of the difficulties faced by listing officers in present circumstances, but at the same time I have to apply the statutory provisions. If difficulties of providing a judge and a courtroom are too readily accepted as both a good and sufficient reason for extending custody time limits, there is a real danger that the purpose of the statutory provisions would be undermined. These are provisions expressly designed to protect the liberty of the citizen, assumed at the present stage not to be guilty. Of course the decision to place him in custody involves a balance of his interests against those of the public; but to keep him in custody beyond the time reasonably necessary for his case to be prepared for trial, for administrative reasons which are essentially unconnected with his case, is another matter altogether. There is no redress against that mischief for somebody who at the end of the day is found to be innocent, and those are all no doubt factors which Parliament had in mind in laying down the provisions that it did. In construing and applying statutory provisions which impose a custody time limit, but create an exception, one must be very careful that the exception is not allowed to grow so as to emasculate the primary provision. Of course there may be situations where the particular case can only be tried by a particular class of judge, where such a judge is only going to be available at a particular trial centre for a particular time, where other similar cases are already awaiting trial, and where there is no reasonable alternative but to make the defendant wait because the case cannot readily be transferred to another court centre. I am wholly familiar with these problems as they presently affect this circuit. But in this case we have a case which is serious, but not of exceptional complexity. It can be tried by any circuit judge. It is not estimated to take more than three weeks at worst. Yet I am being asked to extend the 16-week time limit by an additional 17 weeks. If I reached that decision in this case on that ground it seems to me that it is virtually saying that in any case, regardless of what level of judge may try it, listing difficulties may be regarded as a just and sufficient cause for extending a statutory period by a very large margin indeed. I recoil from that, because it seems to me that to do so would indeed be to defeat the statutory purpose.'"
"The first submission that has been made by [counsel for the claimant] is that administrative error is not capable of justifying an extension of a custody time limit. It is not capable of being, he submits, a good and sufficient cause. That is a submission that I do not accept. It seems to me that it is quite impossible to say that an error made by the court, or indeed by anyone, is incapable of giving rise to a need to extend custody time limits within the meaning of section 22(3). Everything will depend upon the circumstances of a particular case. But I do take the view that if delay is caused by administrative error, then the court must do everything that it conceivably can to minimise the effect of that error so that if there are difficulties in listing a case which has had to be put out because of such an error, those difficulties will not prevail with the court unless it can be shown that they really are insuperable. Secondly, as it seems to me, the judge who decides whether there is a need to extend must have regard to the nature of the error which has led to the request for an extension. If it be an administrative error, then he will be the less easily persuaded that it amounts to a good and sufficient cause for an extension. However, I reject the submission that it is incapable in law of amounting to a good and sufficient reason."
At the end of his judgment Collins J proceeded:
"The court in ex parte McDonald made it plain that if it was clear that a judge, or recorder or a magistrate had had regard to all the relevant legal considerations, then the court would be most reluctant to intervene in what was after all an exercise of discretion, and the court should only intervene if satisfied on the normal judicial review principles that the decision was flawed."
I gratefully accept and adopt what Collins J had to say about the principle to be applied where an administrative error is relied upon as a ground for extending custody time limits.