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
		14 December 2005

1. MR JUSTICE STANLEY BURNTON: This is an application for judicial review of an order made on 12th August by His Honour Judge Joseph at Croydon Crown Court at a plea and case management hearing, when he extended custody time limits which would have expired on 15th November 2005 to 7th January 2006, that being immediately after the date that was then fixed for the trial of the charges faced by the claimant.
2. This is one of those cases in which before the Crown Court judge there was, with all respect to him, a perfunctory consideration of the preconditions for the exercise by him of his discretion to extend custody time limits in a case such as the present. In order to extend custody time limits the court has to be satisfied, (a) that the prosecution have acted with due diligence, and (b) that there is a good and sufficient reason to extend custody time limits beyond the time from when they would normally expire. In that connection it seems to me that the duration of the extension required is a material consideration. It is not right where a short extension is required for the court simply to approve a long extension. Unless must be a good and sufficient reason for the entirety of the extension in question.
3. The proceedings in question had begun on 15th May 2005, when the claimant was arrested and on the following day charged with three offences relating to breaches of immigration law. She was remanded in custody. She appeared before Croydon Magistrates' Court on 17th May, was sent for trial and there was a preliminary hearing on 24th May at Croydon Crown Court. On that occasion the prosecution were ordered to serve their evidence by 5th July and the plea and case management hearing was fixed for 22nd July. Those time limits no doubt were fixed having regard to the statutory custody time limit which, as I have already said, would have expired in the middle of November 2005.
4. The case is on any basis heavy with paper; and on 1st July the CPS informed the defence that they required to extend their time for service of their evidence because papers were still in the hands of the Immigration Service.
5. On 4th July the case was listed at Croydon Crown Court. The prosecution applied to extend time for service of their evidence. That was opposed, but their application for an extension was granted and they were given until 19th July to serve their evidence. The delay resulted in the PCMH being adjourned by three weeks to 12th August, when it came before His Honour Judge Joseph.
6. The Crown Prosecution Service served its witness statements on 16th July with unpaginated exhibits. They were voluminous, and indeed the exhibits in the case remain voluminous.
7. The matter came before His Honour Judge Joseph on 12th August. As at that date, as far as could be seen, the prosecution had complied with the procedural directions that had been given. I say as far as could be seen because evidence has been served subsequently out of time. That could not have been foreseen, at least by the defence or indeed by His Honour Judge Joseph, on 12th August.
8. The question of custody time limits did arise before His Honour Judge Joseph, as I have already indicated. There was discussion of the duration of the trial, and the proceedings continued as follows. Counsel for the prosecution, Mr Bayliss, said:

"MR BAYLISS: Your Honour, I have spoken to the list office and they have a date, 3rd January, but that is beyond the custody time limit.

JUDGE JOSEPH: That is the first available date?

MR BAYLISS: They did offer a date on 28th November and, your Honour, I am content with that date but my friend is not.

MR ROY [who was then counsel for the claimant]: It does pose myself difficulties.

JUDGE JOSEPH: Well, is the extension of the custody time limit going to be opposed?"

The transcript shows counsel for Mr Wright (counsel for the co-defendant) saying "no" but it is, I think, common ground before me that it was probably Mr Roy who said that. In any event he continued:

"If the trial is fixed for 3rd January there are other issues which may lead to the trial being put back to 3rd January in any event."

There was then discussion of which judge it might be. Judge Joseph said, having been assured that 3rd January was available:

"All right, 3rd January it is. Any reason why we cannot deal with custody time limits today rather than going back to another day?

MR BAYLISS: No."

Then the judge asked for the timetable, presumably with a view to satisfying himself that there had been due diligence on the part of the prosecution. He was then given a timetable which was not a full timetable. By way of example, it was not mentioned that originally the date for service of papers by the prosecution had been 5th July. The judge was told only about 19th July. However, the judge was aware that there had been an earlier date for a pleas and case management hearing, and indeed he was expressly told so by Mr Bayliss, who said:

"MR BAYLISS: In fact there was an earlier date originally for pleas and case management hearing but it was put back to today because of the quantity of paperwork.

JUDGE JOSEPH I see. Yes, well, there is no dispute that the prosecution have acted with all due diligence and the later date was for the convenience of the defence and I find there is good and sufficient cause. Custody time limit extended to 7th January 2006."

9. There was then discussion of further evidence; and indeed I see over the page that Mr Bayliss told the judge that both parties might be putting in expert handwriting evidence. It is possible, although it is a matter for speculation, that the possibility of the defence requiring handwriting evidence was one of the matters to which Mr Roy referred when saying that there were other issues which might lead to the trial being put back to 3rd January.
10. The authorities make it clear that it is not sufficient for a judge to nod through the questions raised by the statutory requirements for an extension. He must be satisfied that the prosecution have acted with due diligence and must be satisfied that there is a good reason to extend time for the period of extension required.
11. So far as due diligence is concerned, however, the authorities indicate that where it is not suggested on the part of the defence that there has not been due diligence on the part of the prosecution the court may be more easily satisfied that there has been such. In this case before the judge it was not suggested there had been a lack of due diligence on behalf of the prosecution. That is a matter I shall come back to in a moment.
12. So far as due and sufficient cause was concerned, there were possibly three reasons to extend time beyond the expiration of the custody time limits. The first was the non availability of a court at Croydon. The impression I take from the transcript of the hearing on that date is that both counsel for the claimant and counsel for the prosecution were satisfied that the court could not provide a date earlier than 28th November 2005. The judge was not informed that that was after the expiration of the custody time limit. Of course he may have been aware of the actual date, but I think it would be charitable in the extreme to assume that the judge was aware of that date, not having been told of it. I do not know how many other cases the judge was dealing with on that day, but a judge is normally entitled to rely on counsel to inform him of relevant dates, the 15th November being a relevant date in this case; and it was for both counsel and for the defence to inform him that custody time limits would expire before that date. Had he been so informed, it is possible that he himself would have put pressure on listing at Croydon to advance the trial date or a court might have been sought elsewhere, such as in Inner London.
13. The second reason given was that counsel for the defendant was unavailable. That in itself is not necessarily a good reason; and in a case such as this I should be surprised if it were of itself a good reason. This does not appear to have been a case where one could say that one counsel was so immersed in the case no other counsel could properly represent the defendant, unless of course the defendant was adamant that he should have counsel of his choice who was then representing him.
14. The third possibility is that referred to by Mr Roy as "other issues which may lead to the trial being put back". What those were one can only speculate about. It seems to me regrettable that Mr Roy was not asked to what he referred and that counsel cannot now tell me what he had in mind. I appreciate there has been a change of solicitors and indeed of counsel, but that is no reason why proper enquiry could not be made as to what Mr Roy was referring to, and he would be under a duty to inform the present legal representatives of the claimant what those matters were. Whether they were insuperable or not I do not know; that is a matter of speculation.
15. Generally speaking, I am prepared to assume that there was not a sufficient enquiry as to whether there was good reason to extend time limits for as long as they were extended in this case. But what has troubled me in this case from the beginning is the delay on the part of the claimant in bringing these proceedings. These proceedings were begun on 9th November 2005, following a change in the legal representation of the claimant in the criminal proceedings. That occurred on or after 19th September, that is to say over a month after the decision of Judge Joseph and getting on for two months before the commencement of these proceedings. If there has been delay, it is the delay of the claimant. The fact that there was a change of legal representation is a matter to be taken into account but does not of itself excuse the failure to make application promptly after 12th August 2005, when the grounds for making this application arose. If I ask myself whether there has been delay, that is to say whether these proceedings were commenced promptly as required by the rules, my clear answer is no.
16. Proceedings such as the present - contesting a decision to extend custody time limits - must be brought as quickly as possible. They are frequently instituted within seven days of the decision of the Crown Court in question. These proceedings were begun just within the three months' outside limit under the rules. They should have been begun within seven or fourteen days of 12th August and certainly within days of the transfer of the representation to the present solicitors and counsel acting for the claimant. In saying that, I do not criticise at all Miss Dhir. I do not know when she was first instructed to make this application. I suspect it was not long before it was in fact made; and she has cogently and powerfully presented the case on behalf of the claimant.
17. Was the delay in bringing these proceedings material? Again my answer clearly is yes. Had these proceedings been brought promptly, and assuming that Judge Joseph's order was unlawful, it would have been set aside and the matter remitted within the custody time limit to the Crown Court for reconsideration of the extension. That might have led to one of two things. The first is the possibility that the date for trial would have been brought forward again. That could not be explored. The second is that the judge - and it might have been a judge other than Judge Joseph (indeed the appropriate judge would, I think, have been Judge Macrae, who is due to hear this case) would have reconsidered whether or not there were or were not good reasons to extend custody time limits, that is to say, had the prosecution acted with due diligence and was there good reason in any event to extend custody, and, if not, what should be done about it, including bringing the trial date forward.
18. Miss Dhir's response to the question of delay is to submit that, had the matter been properly considered on 12th August, the judge would inevitably have refused to extend custody time limits. I regret that I do not accept that submission. The judge would have had to consider whether as at that date there had been due diligence on the part of the prosecution. Due diligence does not necessarily involve at every stage acting as expeditiously as possible. The requirement of due diligence will not be breached if such delay as there has been on the part of the prosecution has been immaterial in the context of the proceedings. By way of example, the fact that papers were served two weeks later than originally provided (assuming that to be inexcusable) would not debar an extension of the custody time limit if that did not lead to the necessity for an extension.
19. It is submitted that had the hearing before Judge Joseph taken place two or three weeks earlier than it did, an earlier trial date may have been fixed. Quite apart from the fact that the trial date that was fixed by the judge was fixed not entirely on account of the unavailability of a court, that is, at least to some extent, speculation. So far as good reason is concerned, I do accept that the convenience of counsel is not of itself good reason, but Mr Roy referred to other matters which might lead to the trial being put back to 3rd January in any event. Given the lack of any explanation for that, I must assume that he had some specific matters in mind which would have led to that. Lastly, there would have been the possibility of the judge at a renewed hearing altering the date for the fixing of the trial had matters been properly argued before him.
20. In my judgment, even if I assume that the enquiry before Judge Joseph was inadequate, the delay on the part of the claimant in bringing these proceedings ought to lead, and does lead me in the exercise of my discretion to refuse to grant relief. Accordingly the application is dismissed.
21. Are there any costs orders required?
22. MR COOPER: My Lord, I would just ask for legal aid taxation of these costs.
23. MR JUSTICE STANLEY BURNTON: You require the usual certificate, Miss Dhir?
24. MISS DHIR: Yes.
25. MR JUSTICE STANLEY BURNTON: Thank you very much.