CO/6561/2006 
Neutral Citation Number: [2006] EWHC 2191 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Wednesday, 16th August 2006
 
B E F O R E:

MR JUSTICE COLLINS 

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THE QUEEN ON THE APPLICATION OF ANTHONY DONOVAN HUGHES
Claimant

-v- 

WOOLWICH CROWN COURT
Defendant 
and

CROWN PROSECUTION SERVICE 
Interested Party 
- - - - - - -
(Computer-Aided Transcript of the Palantype Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
 - - - - - - -
MISS A BYRNES (instructed by Amosu Robinshaw, London SW8 1SQ) appeared on behalf of the Claimant
MR C HEHIR (instructed by Crown Prosecution Service) appeared on behalf of the Interested Party
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J U D G M E N T 
1.	MR JUSTICE COLLINS:  This is an application for permission for judicial review of a decision of the Woolwich Crown Court made by His Honour Judge Stone on 4th August 2006 refusing to accept the defence submission that the custody time limits should not be extended.  The custody time limits in fact expired on 7th August, the arrest in this case having taken place on 6th February 2006.
2.	The allegations, very briefly, were that the defendant had attempted to rape the complainant and had assaulted her by means of digital penetration, which is one of the new offences under the 2003 Act.
3.	The defendant, after his arrest, submitted a written statement in which he said:
"I have known [the complainant] for 3 or 4 years.  She lives in the same block as me.  She calls me nearly every day and I see her 2 or 3 times a week."
4.	The complainant had said that she found his attentions unwelcome, but he clearly did have some sort of an interest in her.  On the day in question he had come into her flat, at her invitation it seems, but had committed the offences against her without her consent.  His case was that, far from her not being interested in his advances, she welcomed them, as he believed, and that any activity of a sexual nature that took place was entirely with her consent.
5.	The question of the telephone calls was therefore potentially material because if what he had said in his statement was correct and it transpired that she had been making telephone calls to him on a regular basis, as he alleged, that was on the face of it inconsistent with her account and consistent with his.
6.	Prosecuting counsel was clearly aware of this because on 7th April 2006 he advised the CPS that the police should be asked to obtain the records from November 2005 until February 2006 of calls made by the complainant to the defendant in order to see whether his account in his statement was supported, because counsel recognised that if it was, that would tend to support his claim and tend to undermine the prosecution case.  Unfortunately, it seems that there was something of a misunderstanding.  Certainly his advice was not acted upon.  There was some investigation of her mobile phone, and indeed his mobile phone.  However that was limited, as I understand it, to seeing whether there were text messages, and if so what they were, on her phone.  In due course, in early June I think, a notice of additional evidence was served relating to that matter, but I am told that it did not really take the case any further.  Unfortunately, as I say, what counsel had advised should be done, for the reasons that he clearly gave, was not done.
7.	The defence statement should have been served at a much earlier date than it was.  Unfortunately, it appears that counsel originally instructed did not give the advice that he was asked to give and did not deal with the matter in the manner that he ought to have dealt with it.
8.	In the result, on 23rd June 2006, the trial by then having been fixed for 24th July, the solicitors wrote a letter to the Crown Prosecution Service requesting a number of items relevant to the defence, and in particular asking for "Outgoing call records from [the complainant] for one year up to 5th February 2006."  They commented:
"We are aware that you have already carried out a mobile phone investigation on [the complainant's] mobile phone and these documents are therefore likely to be in your possession.  If they are not, kindly advise as a matter of urgency so that the relevant application can be made to the court to [her] service provider for a summons to produce documents."
9.	Unfortunately, it seems that that letter was not answered.  Furthermore nothing was done by the prosecuting authorities to deal with the matter that had been raised, and that was despite the advice that had been given by their own prosecuting counsel.  True it is that the formal defence statement had not then been served, but the prosecution had been put on the clearest possible notice that there was a request that these records should be obtained.  Indeed, the solicitors had made the point that they could take proceedings, they could seek a summons, and would do so if the CPS said that the documents were not in their possession.
10.	For some reason the CPS saw fit not to reply to that letter.  It was not until 11th July that the defence statement was served, and that was well out of time.  In that the request for the records was repeated.  It was not until 19th July that the necessary request was made to the police, and so to the telephone company.  Inevitably it took some time for those records to be obtained, and they had not been obtained by 4th August when the matter came before His Honour Judge Stone.  By then the trial date of 24th July had of course had to be postponed.  It was originally postponed until 31st July, and again a postponement was necessary because of the absence of these records.  The prosecution applied for the postponement in each case, but the defence, for obvious reasons, did not contest because it was in their interests that these records were produced.
11.	The custody time limits can be extended in accordance with section 22(3) of the Prosecution of Offences Act 1985 if, but only if, the court is satisfied:
"(a) that there is good and sufficient cause for doing so; and
 (b) that the prosecution has acted with all due expedition."
12.	His Honour Judge Stone took the view, and correctly took the view, that the defence had failed in its duty to serve a defence statement in time.  He approached the matter on the basis that that was, as it were, the trigger date for the prosecution to obtain the material.  He considered to have got as far as they had by 4th August - because it transpired that the material was available by the beginning of the following week - showed that they had applied themselves diligently.
13.	Miss Byrnes makes the point that it was wrong to treat that as the trigger date, because there was knowledge by the prosecution at a much earlier stage that these records might be material.  The prosecution has a duty, as is well known, to investigate all material matters, whether or not they might serve to support the prosecution case.  Even if one takes the view that it was not reasonable to expect them to appreciate the possible significance of these records when they received the statement from the defendant, it is clear that by April 2006, when counsel advised, they were aware of the significance and, as counsel correctly indicated, it was necessary to see whether those records did or did not support the account given by the defendant.  It seems to me that they were clearly of possible materiality, either as supporting the prosecution case, if they showed that the defendant had not been telling the truth when he asserted that there had been virtually daily communication, or as possibly supporting the defence case if they did show that.  Accordingly, on either account they might be material.  But certainly on the basis, as prosecuting counsel himself recognised, that they might support the defence contentions.
14.	However, as I say, due I am told to a misunderstanding although it is difficult to follow quite why the clear advice should have been misunderstood, the records were not obtained.  There then comes the letter of 23rd June, which explicitly refers to the records and makes it clear that the defence wanted them and that if the prosecution did not have them, the defence should be notified and would if necessary make the appropriate application to the court.  Nothing was done by the prosecuting authorities in answer to that letter.  Then comes the defence statement.  It seems to me that the learned judge ought at the very least to have had regard to the previous letter of 23rd June, because that put the matter clearly.  It is not necessary to wait for a formal defence statement for the prosecution to take the necessary steps to ensure that the trial takes place within the proper time.  True it is that 23rd June was somewhat late in the day, with only a month before the date of the fixture.  But as it seems to me there was no conceivable excuse for the failure to act, and indeed the failure to reply to the letter of 23rd June.  That is a relevant factor which the learned judge ought to have taken into account.  It seems to me too that he ought to have had regard to the fact that prosecuting counsel advised, back in April, of the materiality or the possible materiality of these records.
15.	The protocol which has been issued relating to unused material, or investigating to see whether there is material that ought to be disclosed, indicates in paragraph 16 that:
"Investigators, disclosure officers and prosecutors must promptly and properly discharge their responsibilities under the Act and statutory Code, in order to ensure that justice is not delayed, denied or frustrated.  In this context, under paragraph 3.5 of the Code of Practice, it is provided 'an investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect'." 
In paragraph 18 it is said:
"Where the single test for disclosure applies under the amended CPIA disclosure regime, the prosecutor is under a duty to consider, at an early stage of proceedings, whether there is any unused prosecution material which is reasonably capable of assisting the case for the accused.  What a defendant has said by way of defence or explanation either in interview or by way of a prepared statement can be a useful guide to making an objective assessment of the material which would satisfy this test."
16.	That makes it plain, and indeed it is accepted by Mr Hehir, that there is a duty to obtain material which may assist the defence, or may indeed assist the prosecution.  It is plain in my judgment that the phone records fell into that category, at least from April 2006.
17.	In those circumstances, I am satisfied that the learned judge did misdirect himself.  I entirely appreciate and accept that this court is and will be most reluctant to interfere with the discretion which is accorded under the Act to the relevant Circuit Judge.  He has a feel of the matter.  He appreciates the difficulties that there may be in his court and in relation to the prosecution, and this particular judge indicated that he was well aware of the law which related to custody time limits.  I have no reason to doubt that he was.  Of course it is a relevant consideration if the defence has contributed, by its failure to take steps that it ought to have taken, to any delay which results in a need to extend the custody time limits.  Clearly the defence had been at fault here in failing to serve the defence statement before 11th July, indeed in failing to request this disclosure before even 23rd June.  Nonetheless, as it seems to me, if one carries out the necessary balancing exercise, it is plain that it is impossible to say that the prosecution here acted with all due diligence in carrying out their functions.  In those circumstances, I am satisfied that the decision of the learned judge was wrong because he failed to take account of matters that he ought to have taken into account.  In those circumstances it is open to this court to quash that decision.
18.	Accordingly, I grant permission for judicial review and, as I indicated to counsel and they agreed, I go on to consider and deal with the substantive claim for judicial review.  For the reasons that I have given, I am persuaded that it succeeds and accordingly that the decision by His Honour Judge Stone cannot stand.
19.	The result will be that that decision is quashed and the matter is remitted to the Woolwich Crown Court to decide what should be done now.  Since the defendant has no previous convictions and therefore does not fall within the category of those for whom bail is normally to be refused, the result will be that bail will have to be granted.  However the terms upon which it is granted are of course and will be a matter for the Circuit Judge.  It is perfectly obvious, I would have thought, that some fairly stringent conditions would be appropriate in the circumstances of this case, firstly, because the defendant I gather is not a native of this country, and so there are fears that he might abscond and, secondly, because it may well be necessary to make some sort of order which means that he is not in contact with the complainant.  I do not know what is the position with his accommodation.  It may be necessary that some arrangement to be made that he resides in a hostel or whatever.
20.	However those are matters as I say which are not for me, but will be dealt with by the Crown Court.  The matter should be dealt with obviously as soon as possible before the Crown Court, ideally tomorrow.
21.	MISS BYRNES:  I wonder would your Lordship consider, given that the claimant, the defendant, has now been in custody for some nine days or so more than he ought to have been, whether your Lordship would consider granting him bail now? 
22.	MR JUSTICE COLLINS:  No, I do not have the information that is necessary.  As I have indicated, it is clear that some conditions will have to be imposed.  If you can get before the Crown Court this afternoon, certainly that would be a possibility, but I suspect it will be tomorrow.
23.	MISS BYRNES:  Can I ask your Lordship then to deal with the issue of costs, please? 
24.	MR JUSTICE COLLINS:  Yes.  Now what do you want, costs out of central funds? 
25.	MISS BYRNES:  Please.
26.	MR JUSTICE COLLINS:  Subject to one matter, I have no power to award costs out of central funds, because it is only the Divisional Court.
27.	MISS BYRNES:  I understand that.
28.	MR JUSTICE COLLINS:  But there is some, I have not checked this, is there some provision about vacations where a single judge can act as a Divisional Court?  The answer is that I am not sure and I have not checked.  Can I ask you to look into that and check that -- 
29.	MISS BYRNES:  Certainly.
30.	MR JUSTICE COLLINS:  -- if you would.  It is not an insoluble problem because if I decide that I have no power, what I can do is to adjourn the question of costs and constitute a Divisional Court for the purpose, and that will not mean any further attendance by anyone.
31.	MISS BYRNES:  I am sorry to interrupt.  I anticipated this issue when I was in discussions with the case worker in relation to this case.  His view is that that is the appropriate course to take -- 
32.	MR JUSTICE COLLINS:  That is the appropriate course.
33.	MISS BYRNES:  -- to adjourn the matter, so that a Divisional Court can be constituted to deal with the issue of costs.
34.	MR JUSTICE COLLINS:  The only caveat I have is that as we are in vacation I have a feeling that there is some provision which indicates that a single judge can act or the matter can be dealt with by a single judge in vacation.  But subject to that, I will adopt the course that I have indicated which will be done on paper.
35.	I take it Mr Hehir you have no involvement. 
36.	MR HEHIR:  My Lord, it does not seem to touch upon the interested party at all.
37.	MR JUSTICE COLLINS:  Obviously I am not making an order against the CPS, but it seems to me it is an appropriate case for central funds -- 
38.	MR HEHIR:  With respect, I agree.
39.	MR JUSTICE COLLINS:  -- in the normal course of events, the only question is whether I can do it here and now, or whether I will need to simply approach a colleague and we will formally constitute a Divisional Court for the purpose.
40.	MR HEHIR:  My Lord.
41.	MR JUSTICE COLLINS:  All right, thank you both.
42.	MISS BYRNES:  Thank you.
43.	MR JUSTICE COLLINS:  Can I ask you just to check on that, and put your head in if you find anything which helps.
44.	MISS BYRNES:  Yes, my Lord.
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