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
		6 October 2003

1. MR JUSTICE MITTING: On 26th January 2003, the claimant was arrested and charged with the murder of his wife. He was brought before Guildford Magistrates' Court on 27th January 2003. Soon thereafter he was transfered in custody under the provisions of section 51 of the Crime and Disorder Act 1998 to the Central Criminal Court. He was in custody at the time of transfer and has been ever since. The custody time limit was, therefore, by virtue of paragraph (6B) of the Custody Time Limits Regulation 182 days from 27th January 2003. That limit therefore expired on 28th July 2003.
2. The bulk of the Crown's evidence was served on or shortly after 31 March. In early April 2003, the Crown obtained a report from a scientist, Dr Syed Rasul. A notice of further evidence was prepared, and according to the findings of the judge, Judge Dunn QC, served on or very soon after 29th April 2003. Although a short period elapsed between receiving the report and serving it, no criticism has ever been made of the elapse of time between those two events. In the report, Dr Syed Rasul noted the presence of blood stains on matching left and right trainers said to belong to the claimant, which, upon analysis, produced a match with a match probability of one in a billion with the DNA of the deceased. Plainly that is evidence of high importance both to the Crown and the defence.
3. The other pillars of the Crown's case were, and are, that a mobile telephone attributable to the claimant can be shown to have been used on the day on which his wife was killed, moving from London towards her home address in Guildford and to have been used by somebody contacting her that night at her home. The third pillar of the Crown's case was that extensive blood staining was found in a car said to belong to the claimant; which blood is attributable to the deceased woman with the same match probability as the blood on the trainers.
4. The claimant has had three solicitors in the course of the proceedings so far. He has at times been without the benefit of any legal advice, but at the time when the report of Dr Rasul was served, on or soon after 29th April 2003, he did have solicitors, the first who acted for him. The importance of that evidence was such that, in the view of Judge Dunn, a view which I unreservedly share, any competent defence solicitor would immediately have wished to obtain expert evidence to analyse and comment upon the blood stains on the shoes. No such report was obtained.
5. On 11th April, at the Central Criminal Court, the Recorder of London fixed the trial date for 1st September. It was appreciated then that an application would have to be made for the extension of custody time limits if the claimant were not to be released on or very soon after 28th July. The third set of solicitors were instructed by the claimant on 18th July and upon that date, such papers as the second set of solicitors had had were transferred to them. The papers did not include the report of Dr Rasul. Consequently, the claimant's present solicitors, against whom no criticism has been laid or could properly be laid, were unaware of the existence and contents of the report.
6. Meanwhile, on 2nd June, Dr Rasul sent to the Crown Prosecution Service a further report. It reiterated in the same terms that which he has said in his first report about the blood and DNA analysis of the shoes. It also spoke of the presence of blood on a jacket recovered from the claimant's son's home, but containing his belongings which, upon analysis, produced material which could be analysed for DNA. Dr Rasul concluded that DNA material, not necessarily blood, which matched that of the deceased woman with a match probability of one in a billion, was present. Judge Dunn concluded, plainly correctly, that the Crown were in error in not serving that report promptly upon its receipt. No explanation has ever been forthcoming as to why it was not served promptly. It was not in fact served until 7th August. It was service of that report which alerted the claimant's present solicitors to the need to obtain an expert report of their own; both upon the DNA material on the jacket and upon the trainers. The claimant's instructions were obtained on 13th August. Immediately his solicitors set about the process of obtaining the help of one of the limited number of experts in this field. Four were approached. The earliest that any could carry out a proper analysis and report at that date was some 10 weeks hence. That inevitably led to an application by the claimant to break the fixture on 1 September. That application was heard and granted with no opposition from the Crown on 26 August. The Crown then applied on 1 September for an extension of the custody time limits. I should add that, against some opposition, custody time limits had already been extended on 25th July until 8th September -- that is to say, until a date shortly after the date on which the trial was anticipated then to start.
7. Before Judge Dunn, it was argued for the claimants that the failure to serve the second report of Dr Rasul showed a lack of due diligence and expedition on the part of the prosecution and caused the application by the defence to break the fixture. It was asserted that no first report from Dr Rasul had been served on the defence. Judge Dunn accepted, of course, that no such report had come into the possession of the claimant's present solicitors, but he was satisfied as a matter of fact that the first report had in fact been served on the first solicitors. There is and can be no challenge to that finding of fact.
8. Judge Dunn concluded that the failure to serve the second report promptly was, as he put it, an error on the part of the prosecution. He concluded, however, that in all other respects they conducted the case with due diligence and expedition, and that taking the totality, as he put it, of the very many matters, they had conducted the case with due diligence and expedition so that the second of the two conditions under section 22(3) of the Prosecution of Offences Act 1985 was satisfied.
9. His judgment was extemporare and his reasons for rejecting the defence submissions are not set out with total clarity. If I understand them correctly, they appear to be twofold: first, that the root cause of the need to break the fixture was the failure of the first solicitors to set in motion promptly the obtaining of an expert report upon Dr Rasul's analysis of the DNA material on the trainers; secondly, because the first available date upon which the claimant could have been consulted by his legal advisers after service of the second report upon them was August 13th, and because in his view they could not have arranged an earlier consultation more promptly had the material been in their possession some two weeks before, it made no difference that they did not get the second report until 7th August. In his view they would still be in the same position had they obtained it when, as was put to him, they obtained the papers on 25th July. That latter conclusion was not apparently canvassed in advance with defence counsel and it is criticised factually because instructions, it is said, could have been obtained on either 25th July when the claimant was present when the application to break the fixture was made, or on 1st August when a consultation with him took place. It is submitted to me that had the defence realised that Judge Dunn was minded to reach that conclusion, he could have been told that those earlier dates would have been available for consultation. Had he been so told then he would not have reached the conclusion which I have recited.
10. Section 22 of the 1985 Act provides in subsection (3) that:

"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 --

(i) the illness or absence of the accused, a necessary witness, a judge or a magistrate;

(ii) a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more accused or two or more offences; or

(iii) some other good and sufficient cause; and

(b) that the prosecution has acted with all due diligence and expedition."

11. No question was canvassed before Judge Dunn on the interpretation of the opening words of that subsection. At my instigation -- I say that so any blame for raising the issue is not unfairly laid at the door of Mr Southey who has appeared for the claimant -- the correct interpretation of the opening words have been canvassed today.
12. On a simple reading of the opening words: "at any time before the expiry of the time limit imposed by the regulations", it would appear that an application to extend custody time limits could only be made before the expiry of the 182 days provided for in paragraph (6B) of the regulations. That construction would contradict what, in my experience and in the experience of counsel, is the universal practice of the courts in accepting that they have power to extend a custody time limit where it has already been extended beyond the initially prescribed period. Any other conclusion would produce formidable practical difficulties: for example, where an otherwise properly conducted case due to start soon after the expiry of the period specified in the regulations could not begin because of the unexpected illness of the trial judge, then even though the custody time limit had already been extended, it could not further be extended and a defendant would have to be released immediately upon bail. If that were to be the proper construction of the regulations, then the possibility that such a thing might happen would have to be considered as a good and sufficient reason and so would result, in many cases, in the unnecessary extension of custody time limits to accommodate such a possibility.
13. In my judgment, the practice of the courts universally followed is soundly based upon the wording of the regulations. All that is required is that the words: "before the expiry of a time limit imposed by the regulations", are interpreted so as to include a time limit imposed by the regulations as extended, if appropriate, by the court. The time limit would still be imposed by the regulations albeit that it would have been extended under the statute by the court. I now turn to the principal submissions made by Mr Southey for the claimant.
14. Dr Rasul's second report was expert evidence. Consequently, before the Crown could rely upon it under the Crown Court (Advance Notice of Expert Evidence) Rules 1987, the Crown had to apply under Rule 5 for leave to adduce the evidence. The need to apply for leave arises from the fact that the Crown had failed to comply, on the judge's findings, with Rule 3 which requires any party proposing to adduce expert evidence to furnish a copy of any report as soon as practicable to the other party. Rule 5 provides that, a party who seeks to adduce expert evidence in any proceedings and who fails to comply with Rule 3, shall not adduce that evidence in those proceedings without the leave of the court. No such leave has ever been applied for by the Crown. The position, therefore, as it arose before Judge Dunn on 1st September was that the Crown had properly served Dr Rasul's first report, had not served his second report as soon as reasonably practicable and so had no right to adduce that evidence at all. I asked Mr Summers, who represented the Crown today, whether, if the Crown had been put on the spot, they would have opted to apply for leave with the consequence that the trial date would have been vacated, or would have opted to proceed on the material that they had served in good time. He told me that they would have opted for the latter. I accept his assurance because it seems to me to accord with the practical common sense of the Crown's position. They have, as I have already indicated, three principal limbs to their case against the claimant. The evidence relating to the jacket adds only marginally to one of them.
15. The position it seems to me, therefore, is that if Judge Dunn had been alerted to the need for the Crown to seek leave to adduce the evidence about the jacket, and had he had the issue canvassed in front of him, he would have elicited that response and so would have concluded that, pending the grant of leave, the failure to give notice of that evidence in good time was not -- at least not yet -- material. He did have in mind, because he heard submissions to this effect on 26th August, that the defence needed time in which to obtain an analysis of the evidence about blood and DNA on the shoes. Mr Maloney, who appeared for the claimant on that occasion, said this in his submissions to Judge Dunn.

"It is vital that our own analysis is carried out in order to determine whether or not firstly that is blood, but secondly, whether or not the distribution is such as whether to be likely as the result of contact with Mr Haque or some other form of lodging of the DNA on the training shoes in that way."

16. Thus, it seems to me that, having taken into account all relevant rules and material, Judge Dunn would have been bound to conclude that the need to break the fixture arose principally from the failure of the first solicitors to obtain expert evidence on the material on the trainers. In fact, on a fair reading of Judge Dunn's judgment, he did so conclude so that his decision in that respect is unimpeachable.
17. The law as developed by the Divisional Court in recent years is not in issue. Lord Bingham CJ in R v Leeds Crown Court ex parte Quereshi 18th May 1999, laid it down in these terms:

"The court made plain in ex parte McDonald, as indeed is plain on the face of the statute, that when seeking an extension or a further extension of a custody time limit the Crown must show that there is good and sufficient for making the extension and that it has acted with all due expedition. What, however, was not made plain in ex parte McDonald (because the question did not arise) is that these two provisions are in my judgment linked. It is not in doubt that the Crown must show proper grounds for keeping a defendant in prison awaiting trial for a period longer than the statutory maximum. But the Crown must also show that such an extension is not sought because it has shown insufficient vigour in preparing the case for trial. Put crudely, the prosecution cannot prepare for trial in a dilatory and negligent manner and then come to the court to seek an extension of the custody time limit because the prosecution is not ready for trial. Nor, if the effect of its dilatoriness is to put the defence in a position where the defence is not ready for the trial can the Crown seek an extension and show that it has acted with all due expedition. It is in the ordinary way the business of the prosecution to be ready. If therefore the Crown is seeking an extension of the time limit it must show that the need for the extension does not arise from lack of due expedition or due diligence on its part. It seems clear to me, however, that the requirement of due expedition or due diligence or both is not a disciplinary provision. It is not there to punish prosecutors for administrative lapses; it is there to protect defendants by ensuring that they are kept in prison awaiting trial no longer than is justifiable. That is why due expedition is called for. The court is not in my view obliged to refuse the extension of a custody time limit because the prosecution is shown to have been guilty of avoidable delay where that delay has had no effect whatever on the ability of the prosecution and the defence to be ready for trial on a predetermined trial date."

18. Lord Bingham goes on to make it clear that the Divisional Court had in mind not only the provisions which then existed which referred only to good and sufficient cause, but also those about to be introduced. He concluded by observing:

"I repeat that I can see no reason why Parliament should have wished to oblige the court to refuse an extension of a custody time limit because there has been some avoidable delay, even where this has not had any effect on the beneficial object which the statute is intended to achieve, namely the objective of keeping defendants in prison awaiting trial for no longer than is justifiable."

19. In R(Rippe and others) v Chelmsford Crown Court, Keene LJ, extending and clarifying the approach in Quereshi, said this:

"35. As a matter of law, he was right to approach this case by focusing on what had caused the postponement. The courts have said several times that a lack of due diligence and expedition on some matters will not prevent an extension of the custody time limits if that is not the cause of the need for the extension . . .

"36. In my view, one has to have regard to what were the factors, or in particular the principal factor, which led to the need for the custody time limits to be extended."

20. In a case such as this where there are two possible approaches to causation, it seems to me that that approach is to be preferred. The two possible approaches are: first, for the court to look at what is the real, root or principal cause of the need to break the fixture, and the other is to see whether anything done by the prosecution in any way contributed to that need. In my judgment, the former is the appropriate test not the latter. To reiterate, applying those tests, Judge Dunn's conclusion that the root cause of the need to break the fixture was the failure of the first solicitors to obtain a report in good time, seems to me to be both unimpeachable and right.
21. Mr Southey makes a further submission that he acknowledges was not put in these terms to Judge Dunn. Because, he says, the second report of Dr Rasul was not served until 7th August, the claimant's present solicitors were not alerted to the existence of expert evidence and of the need to obtain it until late in the day. Had they been so alerted when they got the papers on 18th July, or those put to Judge Dunn on 25th July, they would have been able to set in motion the obtaining of expert evidence earlier and so the trial date now fixed for early January of next year could perhaps have been fixed at a modestly earlier date. Consequently, Mr Southey submits that, although the need to break the fixture may not be attributable to any fault on the part of the Crown, the need to set a new fixture so far ahead as January is in small part attributable to their fault. Because that submission was not made to Judge Dunn, he did not have the opportunity of checking with the Central Criminal Court listing office to see whether an earlier date would have been available if the need for expert evidence had been drawn to the claimant's present solicitor's attention on either 25th July or 1st August.
22. I am in no position to do what Judge Dunn could perhaps have done. If I were to reach any view about it, it would be a view not based at all on reliable material let alone evidence, but would be pure speculation. I decline so to speculate. If this issue was live, then it should have been canvassed before Judge Dunn. That is not a criticism of Mr Southey or of those who instruct him, or of those who represented the claimant on 1st September. It is simply an observation to the effect that I can not speculate when the material was not canvassed before Judge Dunn.
23. For the reasons which I have given, the essential reasoning adopted by Judge Dunn seems to me to be sustainable. To the extent to which it is open to criticism -- that he did not take into account the fact that the material relating to the jacket could not be adduced by the Crown without leave, and the fact that he did not give to the claimant's representatives the benefit of the thought process that was going through his mind before he delivered his reasons. It does not seem to me that it would be right to quash his decision. The effect of so doing, whether or not I were to make any other order, would be that the claimant would have the right immediately to apply for bail to the Crown Court because all relevant time limits would have elapsed.
24. In a case such as this where the judge has arrived at the right decision, in large part at least for essentially the right reason, it would not be in the interests of justice for me to exercise the discretion which I have to quash the order. For those reasons, this application for judicial review is refused.
25. MR SOUTHEY: Thank you, my Lord. May I raise two matters with the court?
26. MR JUSTICE MITTING: Yes.
27. MR SOUTHEY: Firstly, may I ask for a detailed assessment of the claimant's costs for the purposes of the Legal Services Commission?
28. MR JUSTICE MITTING: Yes.
29. MR SOUTHEY: I do not know if that has been received. I suspect it may not have been, due to the fact that legal aid would have been granted urgently, and so I would ask the court (inaudible). My Lord, the second point is this --
30. MR JUSTICE MITTING: Let us deal with that first. You have no interest in that. I do make an order for detailed assessment of the claimant's costs.
31. MR SOUTHEY: My Lord, the second point is this -- which really I suppose is an observation rather than an application in some respects. My memory of the provisions regarding appeals are that we have 14 days both to seek leave to appeal and to seek a certificate. Given that your Lordship raised a fresh point that I was not anticipating in some respects, and that that is a point of some significance, all I wish to do at this stage is to say we will be taking instructions and potentially seek to make an application. What I would suggest is that, if we were to make such an application, there is no reason that I am aware of why it cannot be dealt with on the papers and we cannot make our application for leave and for the question to be certified on the papers. Were we to do that, I am not saying that we necessarily will, but I just wanted to put that before the court as a potential course of action and to ask for the court's approval.
32. MR JUSTICE MITTING: If so advised, you want to do it on paper?
33. MR SOUTHEY: Yes.
34. MR JUSTICE MITTING: I can see no objection to that. Can you?
35. MR SELLERS: None, My Lord.
36. MR JUSTICE MITTING: You may.
37. MR SOUTHEY: Thank you.
38. MR SELLERS: My Lord, I am instructed to make an application for costs. I appreciate that I am only an interesting party and that it is against the Legal Services Commission, but those are my instructions.
39. MR JUSTICE MITTING: Is there any purpose in making such an order to take from one government pocket and put it in another?
40. MR SELLERS: We all have a duty to the respective sources of that fund to consider whether costs are responsibly expended. My Lord, I entirely appreciate that, if your Lordship granted leave straight away, where that leaves me, but my application exists nonetheless.
41. MR JUSTICE MITTING: I can see no purpose whatever in making an order for costs and I decline to do so.
42. MR SELLERS: So be it.
43. MR JUSTICE MITTING: Thank you both for an interesting and, I hope, not too stridently interrupted argument.