England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		5th September 2003

Friday, 5th September 2003

1. MR JUSTICE PITCHFORD: This is an application for permission to proceed to judicial review of a decision of His Honour Judge Burke QC made at the Crown Court in Luton on 30th July 2003 extending a custody time limit to 18th September 2003, the applicant having been committed for trial on 13th November 2002.
2. Having considered the skeleton arguments and briefly argument yesterday, on 4th September, I was satisfied that the claim was properly arguable and invited counsel to consider that future representations should be on the basis that this was the final hearing. Counsel agreed with that course. I have granted leave and now propose to give judgment on the merits.
3. On 18th September 2002 the claimant, Mr Taheri, was arrested and charged with several either way offences of harassment and threats to kill. He was brought before the magistrates' court and remanded in custody, bail having been refused. The justices subsequently declined jurisdiction and after various adjournments Mr Taheri was committed to the Crown Court on 13th November 2002. The claimant has therefore been in custody for two weeks short of a year.
4. A plea and directions hearing was held at the Crown Court on 16th December 2002 at which a time estimate of seven days was given for the trial. A trial date was set for 23rd April 2003 and on 3rd March the custody time limit was extended to the date of trial.
5. The day before the trial was due to take place the case was mentioned on the application of Mr Taheri since matters had arisen which required an application to permit him to change his solicitors. That application was heard by His Honour Judge Moss. It was granted. It became apparent that it was not possible for the defence to be ready for trial on the following day.
6. A transcript of the proceedings on 23rd April has been obtained, from which I am told by counsel it is apparent that counsel then looking after Mr Taheri's interests, Mr Montrose, informed the judge that he had been provided with two possible trial dates, the sooner of which was 6th May 2003 and the later of which was 23rd July 2003. Having taken instructions specifically for the purpose from the defendant and those instructing him, counsel informed the trial judge that they could not be ready for 6th May and would elect to accept the trial date of 23rd July 2003.
7. Unknown to Judge Moss, discussions had taken place between prosecuting counsel, Mr Aleeson, who appears for the interested party today, and Mr Montrose upon the estimate of the length of trial formerly provided to the court as seven days. Mr Aleeson made a note on his brief to the effect that the time estimate was now ten days. It seems to me probable that that discussion took place between counsel with a view to informing the court of the amended time estimate for the purpose of listing. However, it is apparent from the transcript of proceedings on 23rd April that they did not inform the court of the change of estimate. Mr Aleeson explains this by reference to the probability that he and Mr Montrose realised that it may not be possible to form a concluded view about the estimate of time for trial until the new solicitors had carried out whatever investigations they needed for the purpose of trial.
8. So the matter was listed on 23rd July. When, on that day, the parties appeared before His Honour Judge Burke QC, they informed him that the time estimate was indeed now ten days. The judge was listed to sit only until 1st August and could sit no longer due to leave commitments. It therefore became apparent that the trial would have to be adjourned yet again unless there was another judge in the building who could immediately take the case and sit for as long as it required.
9. Having heard an application from the prosecution for extension of the custody time limits, and an objection on behalf of the applicant, the judge granted an extension to 31st July 2003 for the purpose of ascertaining the first available date when trial could take place either at Luton or at any other Crown Court in the region, it having become apparent that there was no-one immediately available to take the trial as an alternative to Judge Burke.
10. In giving his ruling upon the prosecution's application, the judge said:

"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.

11. The date ascertained was 15th September 2003, and that date was obtained only by moving another fixture. At the adjourned hearing on 30th July the judge considered further submissions and gave judgment extending the time limit to 18th September. In giving his second ruling, the judge said this:

"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."

And later:

"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."

12. It is common ground that the custody time limit from the date of committal is 112 days pursuant to regulation 5(3), Prosecution of Offences (Custody Time Limits) Regulations 1987. That period expired on 11th March 2003. By section 22(3) of the Prosecution of Offences Act 1985, as amended by section 43 of the Crime and Disorder Act 1988:

"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."

13. Guidance upon the application of these provisions was given by Lord Bingham CJ in R v Manchester Crown Court ex parte McDonald [1999] 1 WLR 841. Lord Bingham said at page 847 letter H:

"... 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 [1998] 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.'"

14. Mr Gledhill notes that the case with which I am faced is one of class 4 alleged offences, which could be tried by any judge or recorder, and that there is not an unusual complexity requiring it to be tried by a judge at any particular level or with any particular specialism.
15. The factors to which Lord Bingham referred in Manchester Crown Court ex parte McDonald were restated by May LJ in R (Cunningham) v Birmingham Crown Court [2002] EWHC 527 (Admin), in particular at paragraph 31.
16. Collins J in Reg v Manchester Crown Court (Minshull Street) ex parte S, CO/3313/99, judgment delivered on 23rd August 1999, was faced with an application for judicial review of a decision to extend custody time limits rendered necessary by an error made by court staff in labelling one of the case files. In the course of his judgment Collins J said:

"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.

17. Mr Gledhill submitted, before the recent production of a transcript of proceedings on 23rd April, that there was fault in the court; that the court had been informed that the estimate was ten days, but no-one had realised that when the case was listed to commence on 23rd July rather than 21st July; and that avoidable errors by listing staff do not constitute a good and sufficient cause for extending the time limits to 18th September. It now transpires, however, that the court was not told on 23rd April, certainly during the hearing, that the estimate of time for trial had now become ten days. No note or correspondence with the court outside open court suggests that the court was ever told that the estimate for trial had been extended to ten days. It is noteworthy that when, on 8th July, the court sent a pro forma to the claimant's new solicitors, asking whether there had been any change in the time estimate since that given at the plea and directions hearing, the new solicitors replied that they did not know because the case was transferred to them after the plea and directions hearing. That rather suggests that, by oversight, the court was not informed, as it should have been, of the change of the estimate. Faced with this hurdle, Mr Gledhill, with ingenuity, submitted that it was the duty of the prosecution to have informed the court of a change of estimate; furthermore, that Judge Burke, before reaching the conclusion he did, should have examined the relisting procedure which took place on 23rd April with a view to ensuring that the first available date for trial was indeed 23rd July 2003.
18. I am afraid I cannot accept either of those submissions. First, it seems to me that the onus was upon the defence to inform the court of the likely estimate once each party had made its contribution to the plea and directions form in December 2002 if there was to be a change in that estimate. More to the point, it was not the responsibility of the court that the case was listed at a time when it could not, in the result, be accommodated. Secondly, it seems to me that there was no duty upon Judge Burke, when considering the background to this matter, to go behind the history as it was presented to him by counsel, neither of whom had any observation to make about the wisdom and propriety of the alternative listing on 23rd July other than in connection with the time estimate point.
19. In my view, the trial judge was required to resolve the application before him upon a consideration why it was that the case came to be listed at a time when it could not be accommodated by reason of the change of time estimate, and the resolution of that issue must have depended on the evidence available: what was the cause of the listing? Was it the defendant's failure to notify the court of a change or was it the court's failure to record what it was told by counsel or solicitors.
20. This was, it seemed to me, a factual issue capable of resolution by an examination between 23rd and 30th July of the tape recording of proceedings on 23rd April. No such examination took place at the request of either one of the parties or otherwise. In my judgment, it was an examination which should have taken place before the judge was invited to reach a conclusion on 30th July that good and substantial cause had been demonstrated.
21. Yesterday, on 4th September, I inquired of counsel whether the tape was still available, and it transpires it was. I accepted an application by Mr Aleeson, not resisted by Mr Gledhill, for an adjournment until today so that the contents of the tape could be checked. As I have indicated, a transcript of the proceedings of 23rd April has been prepared, and it would appear that counsel was in error in failing to notify the court of the change in the time estimate, unless, as Mr Aleeson believes to be the case, no concluded view had been reached or could be reached as to the correct time estimate before the new solicitors had decided, with the defendant, how the case was to be conducted. It must follow that the listing of the trial for Wednesday 23rd July, in the absence of any contrary indication, was a perfectly proper one and that the court staff at the Luton Crown Court are to be absolved of any responsibility for the failure to proceed on that day.
22. It will be apparent that the judge in his ruling of 23rd July placed no responsibility for the turn of events upon prosecution, defence or the court, whereas on 30th July he came to the conclusion that he could not decide how the error had been made. The true position has in the result been revealed, and the decision that I shall make will be based upon the facts as they have been proved to be rather than the facts as they were accepted at the time the application was made to the judge.
23. Despite the appearance in part of the judge's ruling of the 30th July that he was placing weight upon the nature of the offence and the desirability of the defendant remaining in custody, it is apparent that the judge was correctly concentrating on the cause relied upon by the prosecution, namely the error in listing. It seems to me that the judge, upon the material before him, may have been criticised for reaching the view that he was satisfied of the existence of good and sufficient cause, but upon the facts, as it turns out they were, he could, in my judgment, have had no alternative but to reach the view that he did. The circumstances were indeed exceptional. The fault was not that of the court. The probability was that the fault was that of the defence for failing to make clear that the original estimate of time had changed.
24. It seems to me that in the result the grounds upon which the learned judge exercised his discretion have firmed in favour of the prosecution, and for the reasons I have given the claim will be dismissed.
25. MR GLEDHILL: My Lord, I make an application for a public funding assessment of my costs. There may not be a certificate on file because I think there was an emergency extension of legal aid to cover today's hearing, but I will undertake to lodge that within seven days if your Lordship is prepared to grant my application for an assessment.
26. MR JUSTICE PITCHFORD: Yes, on that basis certainly.
27. MR GLEDHILL: I am much obliged.
28. MR JUSTICE PITCHFORD: Thank you both very much.