England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		2nd October 2007

1. LORD JUSTICE RICHARDS: The claimant is facing trial on a charge of armed robbery. The trial is due to begin tomorrow, 3rd October. The claimant has been on remand in custody pending trial. He now challenges a decision of His Honour Judge Maddison, the Recorder of Manchester, to extend the claimant's custody time limit to 5th October so as to take it beyond the commencement of the trial.
2. Permission to apply for judicial review was refused on the papers in early July by Lloyd Jones J, but was granted by Wyn Williams J following an oral renewal application during the vacation. It is most unfortunate that the substantive hearing should have had to wait until today, one day before the trial is due to commence. For my part, I can see little useful purpose being served by the continuation of the claim in the circumstances, but the claimant has chosen to press on with it and I think it is right to give a decision on it.
3. By section 22(3) of the Prosecution of Offences Act 1985, the conditions for extension of custody time limits are (a) that there is good and sufficient cause for doing so, and (b) that the prosecution has acted with all due expedition. In this case there is no issue about (a). The basis of the claim is that the judge acted perversely in finding (b) satisfied.
4. The chronology is therefore central to the claim. It can be summarised as follows. On 4th October 2006 there occurred an armed robbery at a newsagents in Edgeley when the ATM machine was being restocked with cash. It appears that the police were waiting. Of the four robbers who entered the shop, three were arrested at the scene but the fourth managed to escape. The prosecution case is that the claimant was that fourth man. He was arrested on the same day and was interviewed and charged. In interview, he denied that he had been present at the scene or had played any part in the robbery and he asserted an alibi.
5. The first plea and case management hearing took place on 8th December 2006 when the trial date was fixed for 21st May 2007. On 18th January 2007 the prosecution held a conference with counsel who advised that a cell site analysis be carried out in respect of the claimant's telephone; the issue being whether a small number of calls made by the claimant at the relevant time could be pinned down to the geographical area of the robbery. Pursuant to that request, on 25th January the police applied for authorisation for the obtaining of cell site evidence. On 8th February the application for authorisation was endorsed by a detective sergeant and passed to the appropriate officer, a named detective superintendent at the Serious and Organised Crime Group. Unfortunately, he was not available to deal with the application, having been seconded to a different operation requiring his full attention. Another officer was therefore eventually requested to deal with the matter in his place, but it was not until 9th March that the application for authorisation was finally considered and granted.
6. The police received the cell site data on 12th March and contacted the experts. There was a further conference with counsel, and on 16th March the experts, an organisation called Focus, accepted instructions to consider the material. The material was delivered to them on 22nd March. I can pass over details of the work done by them and the timing of that work. But while that work was in progress there was a further plea and case management hearing on 27th March at which the claimant entered a not guilty plea and the custody time limit was extended to 25th May, just beyond what was at that time to be the trial date. That extension is not in issue before us.
7. The defence case statement was served on 12th April. It confirmed the defence of alibi and also advanced a number of serious allegations against the police to the effect that they had framed the claimant in order to disguise the fact that they had allowed a participating informant to escape from the scene of the robbery. On 19th April there was a pre-trial review. On 27th April the Crown Prosecution Service received a report from Focus, though a properly dated and signed report was not received until 3rd May. It was then referred to counsel, with whom a conference was held on 10th May when the decision was taken that the report should be served on the defence. The evidence was in fact served on 14th May. Service of the evidence led to a successful application by the defence on 18th May for the trial date to be vacated in order to give time for a defence expert to be instructed and to respond. The trial was refixed to commence on 3rd October.
8. That was followed by the prosecution's application on 24th May for the custody time limit to be further extended. The application was heard by the Recorder of Manchester because the judge to whom the case had been assigned was unwell. The Recorder took the view that the main focus of attention should be on two periods of delay. The first was the period of some three and a half months between the claimant's arrest and interview in early October 2006 and counsel's advice on 18th January 2007 that cell site evidence should be obtained. The argument advanced on the claimant's behalf before the judge, as in front of us, was that since the issue of the claimant's presence at the scene was known from the outset, that delay was indicative of a lack of due diligence and expedition on the part of the prosecution. The judge referred, however, to the explanation given to him by prosecuting counsel that the police did have from an early stage direct evidence of identification of the claimant in the form of a statement from a police officer to the effect that he saw the claimant in the immediate vicinity of the robbery at the relevant time. The judge observed that it would appear from the information available to him that the police took the view that the direct identification evidence was sufficient, but when counsel advised in conference he took a more cautious view of the evidence and decided that a cell site investigation would be a valuable exercise.
9. The second period of delay to which the judge referred began on 18th January and ran through to 9th March when authorisation was granted for the cell site evidence to be obtained. The judge referred to the explanation that the officer who would normally be responsible for such applications had been seconded and that the application had been diverted to another officer.
10. The judge said he was conscious of the fact that counsel did not confine himself to those two particular periods of delay and also relied on the overall delay, but the judge expressed the view that it would be difficult to argue that any particular passage of time thereafter was indicative of a lack of due diligence on the part of the prosecution. He continued as follows:

"What then of the period up until 9th March? With the benefit of hindsight and approaching this case on the basis that everything would be done perfectly and considered perfectly at the first opportunity, on that approach, it does seem to me that there would be force in the submissions that things could have been done more quickly. It could be said that the police, notwithstanding that they had direct identification evidence, could more quickly have considered the usefulness of cell site evidence. It could be said that notwithstanding the unavailability of Detective Superintendent Dudridge, perhaps some slightly shorter period could have been achieved before the application in respect of the Regulation of Investigatory Powers Act matter was finally authorised.

But, counsel of perfection is not the test which I have to apply. That test was set out in the speech or the judgment of Lord Chief Justice Bingham, as he then was, in the familiar ex parte McDonald case which is frequently cited in relation to applications of this kind."

The judge was there referring to R v Manchester Crown Court ex parte McDonald [1999] 1 Cr.App.R 409. He quoted the following passage from the judgment of Lord Bingham at page 414 C to E:

"To satisfy the court that this condition is met, the prosecution need not show that every stage of representation 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 cooperative or obstructive of the defence, the extent to which the prosecutor is dependent on the cooperation of others outside his control and other matters directly and genuinely bearing on the preparation of the case for trial."

The judge concluded with these words:

"And it seems to me that, taking into account, in particular, the way in which the possibility of cell site evidence came into play, the fact that the police did already have evidence on which they intended to rely and which, if accepted of course, would constitute a valid case against the defendant, taking into account all of the submissions that have been made, I conclude that applying the principles explained by Lord Bingham to this case, the prosecution have acted with due diligence and expedition in relation to the obtaining and service of the report which prompted the need for the adjournment."

11. No complaint is or could be made of the test applied by the judge. The case advanced by Mr Davis on the claimant's behalf is a limited one, that the decision reached by the judge in applying the relevant test to the facts was a perverse decision. That is to say the judge could not reasonably reach the conclusion he did.
12. Mr Davis does not take issue with the judge's identification of two distinct periods of delay. He submits that there was unreasonable delay in the first period but, even if one took a different view of that, thereafter the prosecution was under a duty to prepare the case as expeditiously as possible and this is a factor relevant to the unreasonableness of the delay in the second period.
13. Key points made in relation to the first period are that identification of the claimant as being present at or near the scene of the robbery was plainly in issue from the outset. There were various matters pointing to the weakness of the identification evidence and the obvious desirability of obtaining supporting evidence. Reference is also made to the fact that the police investigating the alibi given by the claimant attempted to obtain CCTV material at the location where the claimant said he had been, but in fact mistakenly deleted the relevant recording. All this, it is said, goes to highlight the importance of additional evidence as to the claimant's presence at the scene. It is also said that such evidence would have been relevant to a possible abuse of process application arising out of the deletion of the CCTV material, since the judge would have had to consider the strength of the other evidence in the case when deciding whether to accede to any such application had it been made. The submission is that a proper review of the prosecution papers would have led to the view that further evidence was necessary or desirable, or would at least have prompted an early conference with counsel in order to consider what further evidence, if any, was required. The prosecution papers should have been received and reviewed by the prosecutor before the plea and case management hearing on 8th December since the papers had been served on the defence by then.
14. As to the various factors referred to by Lord Bingham in the passage that I have quoted from McDonald, it is said that this was a serious but straightforward case. The cell site analysis was not itself difficult or complex. It related to one telephone, a short period of time and a small geographical area, so there was nothing in terms of nature and complexity which stood in the way of prompt consideration of what, if any, further evidence was needed. As to the conduct of the defence, the claimant identified the issue as to presence and alibi in his interview. As to the question whether the prosecutor was dependent on the cooperation of others outside his control, that was the position later when experts were instructed but nothing in this first period depended on the cooperation of anyone outside the prosecution. Accordingly, it is submitted that there was simply no justification for this serious delay of three and a half months and there has been no proper explanation of why the issue of cell site analysis could not have been identified earlier and taken forward at that time.
15. As to the second period of delay identified by the judge, it is submitted that the further delay was entirely unwarranted. A competent prosecutor would have been aware by 18th January that three and a half months had already elapsed before the issue had been identified, that the trial date had been fixed for 21st May, and that there was therefore a clear obligation to obtain the relevant material as quickly as possible. It was unacceptable for the prosecution to sit on matters as long as it did. All that was required was for a detective superintendent to authorise the matter. It did not call for any delay. The various factors identified in McDonald all point against due diligence having been exercised.
16. Those are the main points made by Mr Davis. He presented the case for the claimant extremely well, and put it as clearly and cogently as it could possibly be put. Nonetheless, I would reject the submissions that he made. I take the view that the judge's assessment of this case was a sensible and rational assessment. He was right to focus on the two main periods of delay that he identified. Mr Davis very sensibly did not complain about the later part of the chronology and there is nothing in it that could justify criticism of the prosecution's conduct of the case, especially given that they were dependent upon outside experts for preparation and submission of the report at that stage. In relation to the two main periods of delay, in my view, the judge gave a sufficient explanation of why he reached the conclusion that although things could have been done more quickly, the prosecution could nonetheless be said, applying the test laid down in ex parte McDonald, to have acted with due diligence and expedition in relation to the obtaining and service of the report which had prompted the need for the adjournment of the trial.
17. The Lord Chief Justice in ex parte McDonald emphasised that this court has no role in deciding whether an extension should be granted or not. Its function is not an appellate one. It is concerned only with the lawfulness of the decision of the Crown Court. He also emphasised that where the Crown Court has heard full argument and has given its ruling, this court will be most reluctant to disturb that decision. In my judgment no sufficient case has been made out here for disturbing the decision of the Recorder of Manchester. It has not been shown to have been an unlawful decision. I would therefore dismiss this application.
18. MR JUSTICE AIKENS: I agree. Despite the very attractive and admirably concise submissions by Mr Davis on behalf of the claimant, the conclusions of His Honour Judge Maddison cannot be characterised as perverse. That is the only basis on which the judge's conclusions are or could be challenged. Therefore, for the reasons given by my Lord, I agree that this claim must be dismissed.
19. MR DAVIS: My Lord, the claimant is publicly funded. May I ask my Lord for taxation?
20. LORD JUSTICE RICHARDS: Yes, whatever the correct expression now is.
21. MR DAVIS: I am grateful.
22. LORD JUSTICE RICHARDS: Thank you both very much. Thank you for your skeleton argument, Mr Farrow, even though we did not call on you.