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
		16th March 2005

Wednesday, 16th March 2005

1. LORD JUSTICE ROSE: There is before the court, by permission granted by Hughes J, an application for judicial review of a decision by HHJ McKinnon on 8th December 2004. On that occasion, following some half a day of submissions, he extended the custody time limit in the claimant's case to 8th April 2005. The trial is now fixed, with an estimate of four to six weeks, for 4th April.
2. There is with the claimant's papers a helpful chronology of relevant events. It is unnecessary for present purposes to refer to all the dates in that chronology, but I shall refer to some of them and I shall also amplify the chronology in a few respects.
3. The claimant and five other co-accused were arrested on 8th June 2004, following the execution of a number of warrants under the Misuse of Drugs Act at five addresses in London, three in Romford and two elsewhere, each of which proved to be either an actual or a contemplated factory in relation to the production of cannabis. At that time the claimant and two other defendants, Tuan Nguyen and Son Nguyen, were represented by the same firm of solicitors, Hickman Rose. They, or their representative, were present when the defendants were interviewed with the assistance of an interpreter, all the defendants being Vietnamese.
4. On 11th June, with those three defendants still represented by the same solicitors, all the defendants appeared at the City of London Magistrates' Court and were committed under section 51 of the Crime and Disorder Act 1998 on a charge of conspiracy to produce a class C controlled drug, which is the offence in relation to which they are to be tried.
5. On 18th June there was a preliminary hearing at Southwark Crown Court at which, again, all three defendants to whom I have referred were represented by Hickman Rose. HHJ Fingret on that occasion directed that primary disclosure of the prosecution papers should be served by 30th July. That was not done and it is conceded by Mr Shaw on behalf of the Crown that there was a failure to comply with that order. What actually happened was that, on 3rd August, that is to say three days late, a courtesy bundle was served by the Crown on the defence and, on 6th August, all the documents in relation to primary disclosure, as then conceived, were served on the defence. It is to be noted that HHJ Fingret made no order in relation to the service of the video films to which in a moment I shall return.
6. On 20th August the case was listed before HHJ Bathurst Norman for plea and directions. That directions hearing was adjourned because the defence had indicated an intention to make an application to dismiss the proceedings at that stage. The judge ordered that the defence should serve skeleton arguments in that regard by 27th August and the Crown should respond by 3rd September. At that stage the trial date was fixed for 10th May 2005.
7. On 14th September a notice of additional evidence was served on the defence which related, among other things, to 12 videos, the vast majority of which depicted the scene in the five properties to which we have referred and the various equipment which formed the basis of the claim that they were extant or prospective cannabis factories. Two of the videos, however, recorded surveillance operations carried out by the police in May 2004, that is to say before the claimant and his co-accused were arrested. It is in relation to those two videos that the main thrust of the claimant's contentions is directed because, it is said, it was not until those videos, depicting some of the defendants in association with each other, that the solicitors representing the three defendants, including the claimant, realised that there was a conflict between their respective cases, which required separate representation.
8. On 28th September, after there had been an intervening further adjournment, the dismissal hearing foreshadowed on 20th August took place. HHJ Wadsworth refused the application but commented, in the course of so doing, that the Crown's conduct had been lamentable and inexcusable, and the trial date was brought forward to 15th November 2004. It is to be noted that it was not until 7th October, following service of the videos on 15th September, that it is said to have become apparent to the solicitors acting for the three defendants that there was a conflict of interest. It is also to be noted that it was not until 4th November, that is to say less than two weeks before the trial date at that time fixed, that an application was made for a transfer of the legal representation order in relation to Son Van Nguyen to other solicitors. There was from no quarter any objection to the trial date of 15th November being broken on the occasion of the application of 4th November: it was apparent that, for whatever reason, it was only less than two weeks before the trial that the solicitors and counsel then acting for him had become involved in the case.
9. The submission which is made by Mr Bertham on behalf of the claimant is critical of the judge's ruling extending the custody time limits in four respects. First, it is said that the learned judge misdirected himself as to the proper test which he should apply. It is said that by referring, as he did, at page 4F of the transcript of his ruling to the readiness for trial of the Crown, he was introducing what Mr Bertham described as "a detrimental and distracting dilution of the statutory test." The statutory test is contained in section 22(3) of the Prosecution of Offences Act 1985 and is, so far is presently material, in these terms:

"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."

10. Mr Bertham drew attention to the well-known judgment of Lord Bingham of Cornhill CJ in R v Crown Court at Manchester ex parte McDonald which has been referred to in 1999 1 All ER 805, and in particular Mr Bertham drew our attention to the passage in that judgment which starts at page 808 in the last few lines at the foot of that page and continues to the foot of page 809.
11. It is to be noted that, at the very beginning of his ruling, the learned judge rehearsed part of that passage, in particular the passage which starts at page 809 just above letter G and continues to almost the foot of that page. That is a passage which, among other things, repeats the reference to due diligence and expedition which is enshrined in the statutory language.
12. As it seems to me, it is quite impossible to contend, when the whole of the judge's ruling, including that passage, is read, that the judge misdirected himself as to the test that he should apply. It is apparent that he had in mind the limbs of the statutory test and the approach to them which was adumbrated by Lord Bingham.
13. Secondly, it is said that the judge's conclusion was unreasonable, in particular because the prosecution had been dilatory from the earliest stages of the case. They had been castigated in the terms which I have rehearsed by HHJ Wadsworth on the earlier occasion and they had failed to comply with the directions given in relation to primary disclosure by 30th July. Also, they were a week late in complying with the direction as to service of the video material by way of additional evidence.
14. The third criticism, which it is convenient to consider in conjunction with the second, is that the judge failed to subject the prosecution's application to extend custody time limits to the rigorous scrutiny which was necessary. In particular, the judge failed to consider whether the prosecution had contributed themselves to the need for an extension, in particular by late service of the videos which Mr Bertham submits ought to have been served as part of primary disclosure. It is sadi that during the course of the hearing, the learned judge failed to question the prosecution in the way which Mr Bertham submits he should have done as to their explanation why the videos were served when they were. In that respect, Mr Bertham also drew attention to another judgment of Lord Bingham in the unreported case of Quereshi and Bagoutie, transcript of 18th May 1999, in which Lord Bingham stressed that the Crown must show proper grounds for keeping a defendant in prison awaiting trial for a period longer than the statutory maximum, and must also show that an extension was not sought because it had shown insufficient vigour in preparing the case for trial.
15. Lord Bingham said:

"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."

16. Lord Bingham also went on to say:

"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."

17. Mr Bertham in his written submissions at paragraph 15 listed the failure of the prosecution to serve any papers on time or comply with any directions on time limits, or provide any explanation for failing to comply with directions, or to serve the papers and videos on which they intended to rely before 15th September, or to provide an explanation for late service. Their secondary disclosure was not served when it should have been, that is to say, prior to the original trial date on 15th November, and there is further reference to the disclosure provided in relation to what was referred as to Operation Pear and to provide copies of interview tapes and copies of specified exhibits.
18. As it seems to me, one of the difficulties that presents itself in an insuperable form to Mr Bertham's submissions on this aspect is that, no doubt for good reason, although waiver of privilege has been sought on the claimant's behalf from the other two defendants, it has not been forthcoming. The position, therefore, in relation to the significance, if any, of the service of the videos on 15th September, two months before the date of trial then fixed, in relation to conflict of interest is entirely unilluminated by information as to what was known to the solicitors for the three defendants during the months which had passed between the beginning of June and the middle of September. That want of explanation does not, of course, sustain any kind of criticism of either Mr Bertham or his instructing solicitors, as they now are. But the effect is that the court has before it no more material in relation to conflict of interest than that which I have already rehearsed.
19. In those circumstances, as it seems to me, it is impossible to say that the late abandonment, if I may so describe it, of the claimant by the solicitors acting for him so that new representatives had to be appointed is properly attributable to fault on the part of the prosecution in relation to the service of the videos. Accordingly, as it seems to me, however rigorous a scrutiny is conducted of the available material, it does not point to a conclusion different from that which the judge reached.
20. The fourth ground of complaint is procedural unfairness, said to arise from the judge's failure to require that evidence be called. That, in my judgment, is an impossible submission to sustain once it is conceded by Mr Bertham, as it rightly is, that whether or not evidence should be called is a matter for the discretion of the judge conducting the hearing and when it is further conceded that no invitation was extended to him by Mr Bertham that he should hear evidence. There is no doubt that, in the respects which I have identified, and, for what it is worth, in the lamentably late service of the skeleton argument for the benefit of this court which did not occur until yesterday, despite the direction of Hughes J that it should have been served two weeks ago, there has been a lack of diligence by the prosecution. But it seems to me that, on the material which was before the learned judge, he was entitled to reach the conclusion which he did. He recognised, as the terms of his ruling show, that it was a difficult case to decide. For my part, I am unpersuaded that he misdirected himself or that he otherwise reached an unlawful or improper decision which was not open to him. Accordingly, for my part, I would dismiss this application.
21. MR JUSTICE HOLLAND: I agree. Like my Lord, I do not think that HHJ McKinnon was confronted with an easy decision. Leave aside the concern for the liberty of the subject inherent in this exercise of jurisdiction, the defence in opposing extension of the custody time limit, had a strong serious point to raise, that is the impact of the unanticipated belated service of two video tapes on 15th September 2004 by way of additional evidence. The impact that would be a matter of concern to the judge was upon the subsequent conduct of the defence, such including an application for a transfer of the Legal Aid certificate and a successful application for the adjournment of the trial. Difficult the decision may have been, but turning to his approach to the problem, at first, again like my Lord, I cannot discern any misdirection as to the law.
22. With respect to fact, again, I cannot discern any respect capable of identification by this court in which he failed to give weight to that which was appropriately accorded weight. I cannot discern any respect in which he failed to consider arguments that were appropriate. I remind myself that he conducted the hearing for some two hours and received, seemingly, no less than six submissions; one for the prosecution and five for the defence.
23. In those circumstances, difficult though his problem was, I cannot see a basis upon which this court can, through the medium of judicial review, quash it and substitute some other and different decision. I am therefore for dismissing this application.
24. MR SHAW: My Lord, I am grateful. My Lord, the only question is that of costs.
25. LORD JUSTICE ROSE: Is everybody not on Legal Aid?
26. MR SHAW: My Lord, unfortunately, I am not.
27. LORD JUSTICE ROSE: That is a perfectly fair comment.
28. MR SHAW: I expect that Mr Son Nguyen is.
29. LORD JUSTICE ROSE: What is the position, Mr Bertham? Is there a representation order?
30. MR BERTHAM: There is a representation order in respect of Mr Trinh, my Lord, yes.
31. LORD JUSTICE ROSE: Does he have a contribution or not?
32. MR BERTHAM: No, my Lord, he is in custody.
33. LORD JUSTICE ROSE: The two do not necessarily follow.
34. MR BERTHAM: I appreciate that but in this case there is no contribution.
35. MR SHAW: My Lord, can I ask that costs be allowed. There will be an inquiry into this defendant's means at the end of the trial and there are a number of proceedings. It is the Crown's view that he has earned a considerable amount of money. Could I ask that your Lordship order that costs be reserved?
36. LORD JUSTICE ROSE: Mr Bertham, what we are minded to do is to make an order for costs but not to be enforced until after such confiscation proceedings as may take place, or further order, without leave of the court.
37. MR BERTHAM: I do not think I can object to that, my Lord.
38. LORD JUSTICE ROSE: I thought you probably could not. That is the order we wish to make.
39. MR BERTHAM: There is Legal Aid in this matter. I would be grateful if the court could order assessment.
40. LORD JUSTICE ROSE: I do not think you need such an order, but if you need it, you have it. Thank you.