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
		19th December 2003

1. MR JUSTICE ELIAS: I have before me what were originally three applications for permission to apply for judicial review from three accused who are awaiting trial, and in respect of whom custody time limits have been extended. They are seeking to challenge the ruling of the judge, HHJ Faulks, that the custody time limits should be extended. They submit that the judge erred and that he ought to have released them on bail.
2. The trial date is the 5th January next year. Given the close proximity of that date, and also the fact that Christmas and New Year intervenes, the parties have sensibly agreed that this should be converted into a full hearing of the application. Accordingly, I grant permission and I deal with this matter now as a full judicial review application.
3. In order to understand the context in which these applications arise, I need to say a little bit about the background. The three applicants are Willison, Atkinson and Dawson. They, together with a fourth man, Bowron, are facing a number of counts arising out of certain conduct on 1st and 2nd June of this year. The Crown allege that on 1st June Dawson and Willison kidnapped the complainant. They took him to a garden shed where he had a tooth removed with pliers and was tied up with electrical wire. They threatened him with electrocution. They then took him to a nearby flat and further assaulted him before leaving.
4. In addition, a third defendant, Bowron, appeared at the flat. The complainant initially said he had left the flat alone but later he admitted that he had left it in the company of Bowron. He said that he had lied, initially, in order to protect Bowron. He thought that if Dawson and Willison knew that Bowron had left with him, then they may do similar things to Bowron.
5. The other counts arise out of an incident the following day when as Willison and Dawson broke into the flat of a dangerous drug user, it is said, and shot him in the stomach. It is not necessary to set out all the counts but they include kidnap, causing grievous bodily harm, and attempted murder.
6. The defendant Bowron had maintained that there would be a video from the Newcastle Metro which might show that he was walking together with the complainant and was chatting with him in a friendly way. This was at the time when the complainant was alleging that he had left alone. In fact, I am told by Mr Prince for the prosecution, there is no such video demonstrating them walking together, although the complainant, as I have said, has subsequently admitted that that is what happened. In addition, Mr Prince says that an opportunity was given to the defence to see the video so that they could satisfy themselves that there was nothing of any relevance in it. That was at some point in September of this year. In fact, for some reason or another they were not able to do that and an order was made on 9th October that the relevant video should be produced to the defence within seven days.
7. Meanwhile, on 26th August, the trial date had been fixed for 5th January. That was a date to which all parties agreed at the material time. The custody time limit came to an end on 8th December and an application was made to extend that time limit. That application was heard by HHJ Faulks on 5th December 2003. He heard the application made on behalf of Bowron and Willison. He concluded that there had been a breach of the order that he had made, requiring the production of the video, and that, accordingly, the prosecution had not acted with due diligence. In the circumstances, he ruled that due diligence had not been displayed in relation to Bowron and that he would be released on bail, pending trial. He refused the application of Willison on the grounds that his case was not affected by the non-disclosure.
8. Having made that ruling, counsel for each of the other applicants, Dawson and Atkinson, submitted to the judge that if the circumstances were such as to justify the release on bail of Bowron then, equally, they ought to justify the release of their clients. They submitted that the principle was that if the case was not ready for trial because of the lack of due diligence on behalf of the prosecution, then that would affect all the defendants who were facing trial at the same time, equally. They submitted that there was no basis for saying due diligence had been demonstrated in relation to some of the defendants but not others and that, accordingly, if, as it must be assumed, the judge was right in relation to Bowron, it ought to follow he should release all of these defendants.
9. The judge then made another ruling in relation to that application. I should say that I have not seen a transcript of the judge's ruling but I have been provided with a note and I am assured by all parties that it is very accurate and properly reflects the substance of what the judge had to say. Given the urgency of the matter, it made no sense to wait until a full transcript was available. In the context of this second application, the judge said, in terms:

"I consider the case of Bowron. It is apparent that not disclosing the video has not caused any delay; one of the arguments advanced. I found a lack of due diligence because I made a specific order in respect of Bowron for the CPS to provide copies of the video tape within seven days."

10. He went on to say that he did not think the other three defendants were able to establish, as far as they were concerned, any lack of due diligence. There had been no breach of the order in their case and therefore he was not going to release them on bail merely because he had thought that was the appropriate thing to do in respect of Bowron.
11. Effectively, before me Mr Giuliani, for Atkinson, and Mr Styles, who acts for Dawson and Willison, have pursued the same argument as they did before the learned judge. They submit that the relevant question is whether the prosecution have shown due diligence and expedition in relation to ensuring the readiness of the trial. It is no answer, they say, that the prosecution can say the case is ready in relation to three of the defendants but the trial is not ready because there has been a lack of due diligence in relation to a fourth defendant.
12. They submit that the ruling of HHJ Faulks can only have been made on the premise that the lack of diligence had caused delay. They accept that it did not lead to any change in the trial date which, as I have said, was fixed prior, in fact, to the order of the disclosure of the video being made. They submit that, in essence, there is a hypothetical trial date which is the end of the custody time limit, and the judge must have inferred that the lack of diligence by the prosecution had led to some delay thereafter. The case ought to have been ready for trial by the end of the custody time limit. If it was not, then the prosecution had to make good an application for an extension of time and if the judge had concluded that there was a lack of due diligence that entitled a defendant to be released on bail, then he must be taken to have found that the lack of due diligence had caused delay.
13. The relevant provision is Section 22(3) of the Prosecution of Offences Act 1985. This provides, in the context of this case, that the appropriate court may extend the time limit if satisfied that there is good and sufficient cause for doing so and that the prosecution has acted with all due expedition.
14. In the case of the R v Manchester Crown Court ex parte McDonald [1999] 1 WLR 841, Lord Bingham of Cornhill CJ set out the policy underlying this section. He said this:

"The Act of 1985 and the Regulations of 1987, as amended, have three overriding purposes: (1) to ensure that the periods for which unconvicted defendants are held in custody awaiting trial are as short as reasonably and practically possible; (2) to oblige the prosecution to prepare cases for trial with all due diligence and expedition; and (3) to invest the court with a power and duty to control any extension of the maximum period under the regulations for which any person may be held in custody awaiting trial."

15. He added this at page 847:

"What the court must require is such diligence and expedition as would be shown by a competent prosecutor conscious of his duty to bring the case to trial as quickly as reasonably and fairly possible. In considering whether the standard is met, the court will of course have regard to the nature and complexity of case, the extent of preparation necessary, the conduct (whether co-operative or obstructive) of the defence, the extent to which the prosecutor is dependent on the co-operation of others outside his control and other matters directly and genuinely bearing on the preparation of the case for trial."

16. In the case of R v Leeds Crown Court ex parte Quereshi and others, 21st May 1999, another case in which judgment was given by Lord Bingham, his Lordship said this:

"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 reason 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 insuring 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."

17. In my judgment, it is not possible to say that any failings by the prosecution in this case have caused any delay to the holding of the trial. To use the words of Lord Bingham in Quereshi, the failure by the prosecution in this case "has had no effect whatever on the ability of the prosecution and the defence to be ready for trial on a predetermined trial date."In this case, the trial date was fixed before the order was made which is the basis for the allegation that the prosecution has not acted with due diligence.
18. Mr Giuliani and Mr Styles, for the applicants, submit that Quereshi is different because they submitted that the facts in that case were very different from those here. But it seems to me in the judgment of Lord Bingham, he does, at one point in his judgment, envisage a case like this one where the trial date is fixed beyond the custody time limit. He says this:

"If a trial date is fixed within the custody time limit period (as will almost always, one hopes, be the case) a prosecutor must comply closely with his duty to accomplish expeditiously each stage of the prosecution process; otherwise the trial date may be lost and if he seeks an extension to a trial date outside the custody time limit period then an extension is likely to be refused. It would appear to me that there is very little scope for delay by a prosecutor in such a situation. If, however, in the context of a larger, heavier and more complex case, a trial date is fixed from the outset beyond the custody time limit period, then it still appears to me that there is no charter to a prosecutor to delay because if a prosecutor does delay, and if, as a result, a defendant can plausibly claim not to be ready for trial, and on that ground seeks and obtains an adjournment, and if the prosecutor then seeks an extension of the custody time limit, then again the extension will be denied because the court would not be satisfied of the requirement in Section 22(3)(b)."

19. In this case the trial date had been fixed beyond the custody time limit. There was no delay resulting from the actions of the prosecutor, and nor do I consider that the court should infer that the judge must have found that there was some delay from a hypothetical trial date. As I have indicated, he, in fact, said in terms that there had been no delay in the trial date. I refer, once again, to the observations of Lord Bingham in Quereshi that the purpose of these provisions is not to punish prosecutors for administrative lapses, but, rather, to protect defendants by ensuring they are kept in prison awaiting trial no longer than is justifiable.
20. It seems to me that it was plainly justifiable to keep them in custody until the trial date. Nothing which the prosecutor did, in any sense, caused any delay or led to them being detained for longer than otherwise would have been the case. It is purely fanciful to focus on a hypothetical date prior to the custody time limit expiring and say they are being kept in prison beyond that period. Indeed, Mr Prince submitted that the trial could have been ready by the end of the custody time limit, in the sense that the prosecution would have been ready to prosecute at that stage.
21. Be that as it may, it seems to me, here, that any lack of due diligence by the Crown had no effect on the period for which these particular defendants were to remain in custody, and it may follow from that -- and indeed I think it does follow -- that the ruling of the learned judge in relation to Bowron was in error. That is, indeed, what Mr Prince submits, although he properly points out that the judge was not referred, either by him or any other counsel, to certain relevant authorities which may have caused him to take a different view. I accept, as the counsel for the applicants submit, that the question must be whether a case is fit for trial and not whether the defendants' case is ready and could be tried but for certain failings by the prosecution which cause the overall trial to be delayed. However, in the circumstances of this case I am not prepared to find that there was any relevant failing by the prosecution which has caused these applicants to be in custody longer than the law permits. Accordingly, the applications fail.
22. MR GIULIANI: I understand certificates have been granted late last night.
23. MR JUSTICE ELIAS: Just make sure they are lodged within two weeks.