QUEEN'S BENCH DIVISION
B e f o r e :
(The Lord Woolf of Barnes)
THE VICE-PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
(Lord Justice Rose)
MR JUSTICE ROYCE
|on the application of|
|LESLIE GORDON GIBSON and DAVID GIBSON|
|- v -|
|THE CROWN COURT AT WINCHESTER|
|THE CROWN PROSECUTION SERVICE|
|THE DEPARTMENT FOR CONSTITUTIONAL AFFAIRS|
Smith Bernal, 190 Fleet Street, London EC4 Telephone No: 020-7421 4040
(Official Shorthand Writers to the Court)
MR JAMES LEONARD (instructed by Messrs Sharman & Co, Southampton SO15 2EA) appeared on behalf of THE CLAIMANT DAVID GIBSON
MR ANTHONY HACKING QC (instructed by Crown Prosecution Service Hampshire) appeared on behalf of THE CROWN PROSECUTION SERVICE (THE FIRST INTERESTED PARTY)
MR DAVID PERRY (instructed by the Treasury Solicitor) appeared on behalf of THE DEPARTMENT FOR CONSTITUTIONAL AFFAIRS (THE SECOND INTERESTED PARTY)
Crown Copyright ©
Tuesday 24 February 2004
THE LORD CHIEF JUSTICE:
".... this court has not simply sat back and allowed the outstanding murder and other cases to get completely out of control. We have done our best with the limited resources available, and we have endeavoured to try to keep matters within bounds, not, I am bound to say, entirely successfully, but that is not entirely surprising when you lose a court for the length of time that I have lost Court 1."
Judge Brodrick as the resident judge at Winchester Crown Court is very familiar with the conditions which apply with regard to arranging the lists at that court for which he has overall responsibility subject to the supervision of the Presiding judges of the Western Circuit. It is also right, as Mr Lofthouse who appeared on behalf of Leslie Gibson has stressed, that the judge exercised great care in dealing with the application before him. His ruling is expressed with considerable clarity and deals with the issues with remarkable skill, bearing in mind that it was given immediately after the hearing.
"The appropriate court may, at any time before the expiry of a time limit imposed by the regulations, extend or further extend, that time limit if it is satisfied --
The Crime and Disorder Act's amendment resulted in section 22(3) now providing:(a) that there is good and sufficient cause for doing so; and(b) that the prosecution has acted with all due expedition." (my emphasis)
"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:
The amendments do not materially effect the working of the provision but (i) and (ii) do clarify the type of matters that can be "good and sufficient cause" but they do not cut down the ambit of (iii) as the word "other" makes clear.(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 separate offences; or(iii)some other good and sufficient cause; and(b) that the prosecution has acted with all due diligence and expedition." (my emphasis).
(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 a duty to control any extension of the maximum period under the regulations for which any person may be held in custody awaiting trial.As the court made clear, these are all very important objectives. Any judge making a decision on the extension of custody time limits must be careful to give full weight to all three of the "overriding purposes". I would respectfully strongly endorse the philosophy indicated in that part of Lord Bingham's judgment.
"In any application to the court for an order extending custody time limits beyond the maximum period laid down in the regulations, it is for the prosecution to satisfy the court on the balance of probabilities that both the statutory conditions in section 22(3) are met. If, but only if, the court is so satisfied does the court have a discretion to extend the custody time limit. If it is not satisfied it may not do so. If it is satisfied it may, but need not, do so."
"The condition in section 22(3)(b) that the prosecution should have acted with all due expedition poses little difficulty of interpretation. The condition looks to the conduct of the prosecuting authority (police, solicitors, counsel). To satisfy the court that this condition is met the prosecution need not show that every stage of preparation of the case has been accomplished as quickly and efficiently as humanly possible. That would be an impossible standard to meet, particularly when the court which reviews the history of the case enjoys the immeasurable benefit of hindsight. Nor should the history be approached on the unreal assumption that all involved on the prosecution side have been able to give the case in question their undivided attention. 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 that standard is met, the court will of course have regard to the nature and complexity of the 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. It would be undesirable and unhelpful to attempt to compile a list of matters which it may be relevant to consider in deciding whether this condition is met. In deciding whether the condition is met, however, the court must bear in mind that the [then] period of 112 days specified in the Regulations is a maximum, not a target; and that is a period applicable to all cases."
"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 and extension of the custody time limit..."
"After much hesitation, I have come to the view that there is no indication in section 22(3), considered alone 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 on 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."
"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 a 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 the 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."
"Zimmermann and Steiner v Switzerland .... was not a case under article 5(3) of the Convention but article 6(1). It concerned an administrative law appeal which the Swiss Federal Court took three-and-a-half years to determine. The European Court held that the Federal Court's excessive workload and its chronic backlog provided no more than a partial excuse for the delay which had occurred. In W v Switzerland (1993) 17 EHRR 60, a defendant was held in custody for just over four years between the date of his arrest and that of his conviction. A majority of the European Court held that there was no violation of article 5(3), because of the complexity of the case, the scope of the investigation and the conduct of the defendant himself. It is appropriate that we should bear in mind this jurisprudence of the European Court when considering the effect of our own domestic legislation and applying it. We do not, however, find anything in these European cases which in any way throws doubt on the English law as we have attempted to summarise it. It would indeed appear that the term of 112 days prescribed by the regulations imposes what is, by international standards, an exacting standard.
Any application for the extension of custody time limits will call for careful consideration, and many will call for rigorous scrutiny. When ruling on such an application the court should not only state its decision, but also its reasons for reaching that decision and, if an extension is granted, for holding the conditions in section 22(3) to be fulfilled: see Reg v Leeds Crown Court, Ex parte Briggs, The Times, 19 February 1998. In a case when an extension is granted, it is particularly important that the defendant should know why; but even when an extension is refused, the prosecution is entitled to know the reason for the refusal. We would, however, emphasise that where a court has heard full argument and given its ruling, whether for or against an extension, this court will be most reluctant to disturb that decision. This court has no role whatever in deciding whether, in any case, an extension should be granted or not. Its only role, as in any other application for judicial review, is to see whether the decision in question is open to successful challenge on any of the familiar grounds which support an application for judicial review."
The Construction Issue
"I have no doubt that the learned judge fell into error in reaching the conclusion that he did upon the basis of the reasoning he adopted. Although he acknowledged the necessity to consider subparagraph (a) separately from subparagraph (b) he did exactly the opposite. He went on to consider subsection (b) in the light of subsection (a) and the concession by the defence that there was good and sufficient cause for doing so be virtue of the indisposition of the principal prosecution witness. It was no more permissible when considering whether the prosecution had acted with all expedition to take into account whether there was a good and sufficient cause for doing so to take account of the fact whether the prosecution had or had not acted with all due expedition. In other words, the fact that the trial could not have gone ahead in any event because of the alleged victim's illness was an irrelevant consideration when deciding whether the prosecution had acted with all due expedition."
Having drawn attention to that aspect of the case, this court took the unusual course of granting certiorari in respect of the decision of the court below, but refused mandamus in respect of the right to bail, which normally would be expected to follow from the quashing of a decision of the judge extending a time limit. However, that apart, it seems to me that, quite clearly in that case, Otton LJ took the view that the requirements contained in the statutory provisions both have to be fulfilled in order for an extension of a time custody time limit to be extended. It is therefore a decision to which Mr Lofthouse attaches considerable importance. He indicates that it is supported by earlier decisions in R v Governor of Winchester Prison, ex parte Roddie  1 WLR 303 and R v Luton Crown Court, ex parte Neaves  1 WLR 841, 846.
"14. Much argument before the judge and before us has been based on the decision of this court in ex parte McDonald. There is, as it seems to me at least, nothing in that judgment which the court should now seek to vary, modify or retract, assuming that it were open to the court to do so. It is unnecessary for present purposes to make further reference to regulation 5(3) of the Prosecution of Offences (Custody Time Limits) Regulations 1987, as amended, save to point out that it is that regulation which provides a maximum period of custody between the time when an accused is committed for trial and the start of the trial of 112 days. It is section 22(3) which enables a court at any time before the expiry of a time limit imposed by the regulation to extend or further extend that limit if it is satisfied (a) that there is good and sufficient cause for doing so, and (b) that the prosecution has acted with all due expedition. 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 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.
15. This construction has been resisted by counsel representing the claimants, although it has been broadly supported by counsel for the Crown. It has been resisted on two substantial grounds. First, as a matter of statutory construction, it is submitted that whether one looks at section 22(3) as it now stands or whether one looks at section 22(3) as it will be when an amendment takes effect, it is plain that these are two separate conditions stipulated to stand alone, independently, and imposing two requirements, each of which the Crown must satisfy.
16. For my part I do not derive that intention from the language of the subsection as it stands or from the subsection in its amended form. It seems to me plain that Parliament has intended to insist that prosecutors cannot seek extensions where the need for the extension is attributable to their own failure to act with due expedition and has been at pains to make that clear by setting the requirement out in clear terms on the face of the statute. It does not, however, appear to me that there is anything in the language of the Act in either version which shows that these are independent and free-standing requirements. 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 keeping defendants in prison awaiting trial for no longer than is justifiable."
That decision adopts a different approach, an approach on which both the prosecution and Mr Perry on behalf or the Department rely.
"As a matter of law, [the judge] 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 custody time limits if that is not the cause of the need for the extension....
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 limit to be extended."
(1) The language of the statute is plain.
(2) Parliament could have had no purpose in including the all due diligence and expedition requirement if the plain language is not followed since, if the need for an extension were occasioned by the fault of the Crown, the application would inevitably fall at the "good" or "sufficient" hurdles.
(3) The word "all" before "due diligence and expedition" excludes a link such as that indicated by Lord Bingham, since Parliament could otherwise have stated that it was not all, but only such as had an impact on the timetable.
(4) The amendments made by the 1998 made this even plainer. The illness or absence of a judge, a witness or a defendant, and the ordering of separate trials cannot realistically ever be envisaged as a possible consequence of lack of all due diligence and expedition, yet that requirement is still retained for each case.
(5) Finally, if there must be a link, the "all due diligence and expedition" limb becomes of little significance in cases such as this, where the trial dates are so very far away that little that the Crown does can have an impact on the date.
As part of that last point Mr Lofthouse refers to the fact that "diligence", unlike "expedition" has no reference to timing. He also submits that his construction is simple in practice, avoids complex causation arguments and analysis, avoids longer extension hearings and lets both parties know where they stand. He suggested that we should look at material consisting of what was said in Parliament in support of his interpretation. However, under questioning by this court it appears reasonably clear that this case does not fall within the situation where it would be appropriate to consider that material, having regard to the decision of the House of Lords in Pepper v Hart  AC 593, and we did not look at that material. We regard this as a case of simple construction where there are arguments to be advanced in favour of the alternative approaches that the authorities indicate.
The Resources Issue
"Institutional delay is the most common source of delay and the most difficult to reconcile with the dictates of section 11(b) of the Charter (the right to a trial within a reasonable time) .... this is the period that starts to run when the parties are ready for trial but the system cannot accommodate them. In Utopia this form of delay would be given zero tolerance. There, resources would be unlimited and their application would be administratively perfect so that there would be no shortage of judges or courtrooms and essential court staff would always be available. Unfortunately this is not the world in which section 11(b) was either conceived or in which it operates."
It seems to me that that approach which was specifically relied upon by Mr Perry indicates the difficulty of ignoring resources, which is what the claimants contend should be the approach of a judge considering an application to extend custody time limits.
"As has been said on a number of occasions, indiscriminate use of the power to extend to the custody time limits would emasculate the Parliamentary purpose. As has also been said, and can be well understood, if Parliament willed that these should be the custody time limits, it was for Parliament also to will and provide the resources to enable courts and judges to achieve those time limits."
At paragraph 21 May LJ said:
"I have been unable to detect any particular fact referable to this case which was capable of being a particular good and sufficient cause for extending the custody time limit. That leads to this start conclusion: Parliament has set custody time limits for various obvious reasons. Parliament ultimately is also responsible for the provision of resources by way of judges, Recorders, courtrooms and staff, to enable cases to be heard within those custody time limits. Is it then, in a routine case, to be regarded as a good and sufficient cause for extending the custody time limit that it is impossible to hear the case earlier because the resources available to listing officers make it impossible?"
At paragraph 22 he added:
"In my judgment, faced with that start question, the answer has to be no, it is not a good and sufficient cause. I temper that only be reverting to my suggestion that at the time when cases such as this are fixed for trial, active judicial intervention at an appropriate judicial level often can and always should try to see whether the case cannot, by some means, be heard at an earlier stage. I am confident, speaking generally, that if this is done, in a number of cases an earlier date will, in fact, be found. I am equally confident that in some cases it will not be found. Some of those cases may be cases which, for other particular reasons, do have good and sufficient cause for extending the custody time limit. But a routine case with no particular facts capable of being good and sufficient cause will not qualify for an extension of custody time limits because of the general impossibility of hearing cases earlier. If that were the case, the problems to which Toulson J alluded [in R v Blair and Bryant and R v Taylor, cited by Lord Bingham] would unquestionably arise. As he said, if the difficulties of providing a judge and 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. He also said that, in construing and applying the statutory provisions which impose custody time limits but create an exception, one must be very careful that the exception is not allowed to grow so as to emasculate the primary provision."
The issue as to Intensity of Review
The question of the merits
"The effect of the judgment of the Divisional Court was to open the court too widely to delay in the conduct of criminal proceedings. Such satellite litigation should rarely be permitted in our criminal justice system."
It is therefore desirable, while recognising the importance of review by this court in exceptional cases, to assert the primacy of the Crown Court Judge's role in exercising discretion in relation to custody time limits: see per Lord Bingham CJ in ex parte McDonald (already cited) at 850H, subject to the need, as my Lord has said, for rigorous scrutiny by the Crown Court Judge before custody time limits are extended.
"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."
In my judgment it is important that the exception remains truly an exception. If not, applications for an extension of custody time limits may have to be refused. But for the reason that have been given by my Lords, I also would refuse these applications.
MR LOFTHOUSE: My Lord, I understand, I hope, that I am publicly funded. Would your Lordships grant --
THE LORD CHIEF JUSTICE: I think it is automatic, but insofar as it is not we make the necessary orders.
MR LOFTHOUSE: My Lord, I am grateful.
(Counsel applied for leave to appeal to the House of Lords and was invited by the court to formulate in writing a point of law of general public importance which would be considered on paper)