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 WC2A 2LL
		6th May 2011

1. MR JUSTICE FOSKETT: This is an application for permission to apply for judicial review of the decision of HHJ Guy Boney QC sitting at Winchester Crown Court on Wednesday of this week, 4th May, when he refused to extend the custody time limits concerning the defendants in the case to which I will refer shortly. The net effect of this decision is that, if it stands, the six defendants affected by the decision will, subject to any issue concerning bail conditions, be entitled to be released from custody at midnight tonight.
2. The matter was considered by Saunders J yesterday in the usual way on the papers and he ordered the application in for an urgent oral hearing today on a "rolled up" basis. The CPS has been represented by prosecuting counsel, Mr Mark Bryant-Heron and Mr Stuart Biggs, and the interests of the six affected defendants, who are interested parties in these proceedings, have been represented by their respective counsel, who will, I hope, forgive me for not naming them individually at this stage in the judgment.
3. Because of the urgency, this judgment will have to be somewhat less comprehensive than it might otherwise have been. HHJ Boney gave a reserved written decision on the Crown's application to extend the custody time limits and I must rely heavily on that for a recitation of the factual background. No-one has suggested that it is inaccurate in any way and I am indebted to it. I will come to that factual background shortly but the legal framework that forms the backdrop to the decision made by HHJ Boney needs to be summarised. It is common ground that the regulations that apply to this case provide that the maximum period of custody between the time when an accused is committed for trial and the commencement of the trial is 182 days subject to section 22(3) of the Prosecution of Offences Act 1985 which, omitting irrelevant matters, provides as follows:

"The appropriate court may, at any time before the expiry of the 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 or sufficient cause; and

(b) that the prosecution has acted with all due diligence and expedition."

4. As will become apparent, HHJ Boney was not satisfied that the prosecution had acted with due diligence and expedition in respect of one particular matter to which I will refer shortly and, accordingly, did not find all the necessary pre-conditions to a grant of an extension of time fulfilled. He emphasised that it is primarily expedition that he felt had not been given due priority.
5. In C v Lewes Crown Court [2009] EWHC 805 (Admin) a Divisional Court, comprising the President of the Queen's Bench Division, Sir Anthony May, and Dobbs J, reviewed the authorities in this area and those authorities that impact on the jurisdiction conferred by section 22(3). Paragraphs 7 to 10 of the judgment of Dobbs J, with which Sir Anthony May agreed, set out the parameters helpfully. Subject to two matters, I do not propose to extend this judgment by citing those passages in full, but I should make it clear that I have read them and they have assisted my consideration of this application and the various responses to it.
6. The passages that I would quote are taken from the well-known case of McDonald and others [1998] EWHC 319 (Admin), where the late Lord Bingham, then Lord Chief Justice, reflected on the considerations that arise in this context. Having dealt with the objectives of the provisions concerning custody time limits and dealing with the interpretation of the expression "with all due expedition", he said this:

"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 period of 112 days [as it was in that case] specified in the Regulations is a maximum, not a target; and that it is a period applicable in all cases."

As Mr Bryant-Heron correctly submits, those observations are essentially directed to the question of the expedition needed to ensure preparedness for trial.

7. At a later stage in his judgment, Lord Bingham dealt with the way in which such an application must be dealt with by a judge hearing it and he said this:

"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 ... In a case where 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 reasons 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. It is almost inevitable in cases of this kind that one or other party will disagree, often strongly, with the decision of the trial court, whatever it is. Such disagreement, however strong, is not a ground for seeking judicial review of the decision. Those who make applications of this kind must take care to ensure that there are proper grounds for making application and that they are not inviting this court to trespass into a field of judgment which is reserved to the court of trial."

8. It follows from all this, and it is common ground, that the decision of HHJ Boney falls to be considered by reference to the well-known Wednesbury principles. It should perhaps be added that this review must be against the background of the proposition that the liberty of the individual defendants pending trial is effectively in issue and that their Convention rights under Article 5 of the European Convention on Human Rights must be respected.
9. The factual background, largely taken from HHJ Boney's ruling is as follows. First of all, the nature of the case, and this was described by HHJ Boney in these words:

"This is a serious and complicated case in which seven defendants are jointly indicted with conspiring to import 26 kilograms of pure cocaine."

He gave a further description of the essential nature of the case in this way:

"This case concerns a drugs importation in Portsmouth through Portsmouth Docks and two of the defendants were employed in the docks and are alleged to have facilitated the importation so corruption of that nature is at the core of the case. It allegedly involves an organised criminal gang with evidence of several months of surveillance and phone call schedules over a large area."

10. So that in a nutshell is the way in which HHJ Boney described the case and its background and indeed it is an accurate assessment and reflection of the case. Because of its nature, it had to be dealt with in a particular way and again I will quote what HHJ Boney said about that in his ruling. He said this:

"Because of those reasons, the prosecution rated this case as one requiring the attention of their Organised Crime Division and it automatically fell within the ambit of the protocol issued by the Senior Presiding Judge in December 2008, one of whose provisions is that such a case may only be heard at a designated court centre on the Western Circuit. The only two such centres are Winchester and Bristol, not Portsmouth."

So, as HHJ Boney indicated, the protocol to which I have referred applied. The position is simply this, that the automatic direction despatching a case of this nature to a designated court centre is subject to the overriding discretion of the presiding judge of the circuit.

11. So let me turn to a little further of the history. The seven defendants, as there were, first appeared before the Portsmouth Magistrates' Court on November 5th and 6th, a few days after their respective arrests, and the prosecution had at this stage prepared a notification under the protocol for a designated court centre and as a result the case was transmitted by the Magistrates to Winchester Crown Court for a preliminary hearing.
12. What happened, according to the review of the material put before HHJ Boney, was that the then senior presiding judge of the Western Circuit, Royce J, did indeed exercise the overriding discretion to which I have referred and decided that the case could more appropriately be tried in Portsmouth. There is no document evidencing that formal decision but it is quite plain that such a decision was indeed made, because on 19th November the case was listed for a preliminary hearing in Portsmouth to be heard by the resident judge on 19th November, the resident judge being HHJ Price. That was, as I have indicated, a preliminary hearing and, according to HHJ Boney, was treated like a first stage plea and case management hearing and certainly everyone appears to have approached that hearing on the basis that Portsmouth was in due course to be the trial centre because a date fixed for trial in Portsmouth was set on that date, that date being 4th April of this year. Various other directions about disclosure and the service of documents were made on that date.
13. HHJ Boney said this about that hearing, and I quote again from his ruling:

"The case was indeed treated to its preliminary hearing at Portsmouth on November 19th. It now seems clear by this exercise of the overriding discretion of the then senior presiding judge a few days earlier. The overall point is that the prosecution must have been aware on that date, first that this decision had been taken without their being asked for their view and, second, that the resident judge at Portsmouth was taking all the steps you would expect of a competent case managing judge to ensure that the early preparation stages of the case went ahead without any hitches to ensure that the trial started in his court on April 4th. It will of course be apparent that, having fixed the trial date for 4th April, the trial was due to start on that schedule well within the custody time limits."

14. Matters "rested" there. I would say the word "rested" should appear in inverted commas because everybody, particularly the prosecution, busied themselves in readiness for a trial destined to take place, as I say, at the beginning of April. It was a case of some complexity, as I would indicate a little later, but, as I say, there in one sense matters rested until 10th February, following, I have been told, a review of the position by the prosecution when it was first intimated by the prosecution to the various defendants' representatives that it was proposing to apply to change the venue from Portsmouth back to Winchester. It was intimated that the proposal was to make that application to HHJ Price at a plea and case management hearing on 28th February and that indeed is what happened.
15. According to HHJ Boney's ruling, HHJ Price apparently expressed the view that the concerns that had led the prosecution to make the application were concerns that he felt could be met and accommodated within the trial process, those concerns, in a nutshell, being that this involved allegations of corruption in the local area and that it may be better that the matter be tried elsewhere than Portsmouth. As I have indicated, HHJ Price was not, it appears, impressed by those concerns and felt that they could be dealt with, as of course they often are, within the trial process itself.
16. However, so far as the question of transfer to Winchester was concerned, perfectly understandably, he, HHJ Price, took the view that it was a matter for the senior presiding judge of the circuit, now Field J, who had taken over from Royce J, and it was that position taken by HHJ Price that led to a communication on behalf of the CPS to the Regional Listing Coordinator, a communication by email of 3rd March of this year, setting out the position from the prosecution's point of view and setting out its arguments for saying that the more appropriate venue would be Winchester. It is, as I understand it, not in dispute that that email was not copied to any of the defence representatives and no representations contrary to those representations were, as I understand it, put before Field J. But the bottom line is that that email undoubtedly must have been shown to Field J and on 9th March, some six days later, the Regional Listing Coordinator communicated to the CPS that Field J had indeed directed that the trial should take place in Winchester.
17. Putting the matter shortly, as I must for present purposes, it seems that it did not emerge until a few weeks later that the earliest date that the trial could be accommodated within Winchester was to commence on 30th August of this year, nearly four months after the expiration of the custody time limits for each of the defendants affected. So it was that situation which led to the application by the prosecution to HHJ Boney to extend the custody time limits and, as I indicated, he rejected that application.
18. It seems to me that, as I indicated during the course of the argument, the true issue in this application is whether HHJ Boney was right to treat as a relevant factor in his decision the proposition that the prosecution was under an obligation to challenge the original listing decision of the then presiding judge, Royce J, at an early stage or at least earlier than they did. HHJ Boney held that they should have done so and not waited some three months before initiating such a challenge. As a result of that conclusion, he found that the prosecution had not acted with due diligence and expedition. I should emphasise that this is not a case in which it has been suggested that the prosecution has failed to prepare the case with due diligence and expedition. The matter of concern is that which I have indicated.
19. What is submitted on behalf of the prosecution, or what was submitted on behalf of the prosecution, in its grounds in support of this application is that HHJ Boney "wrongly conflated the powers of the court in exercising its listing function with the duty of the prosecution to act with due diligence and expedition in the preparation of the case". Mr Bryant-Heron has essentially submitted that issues of listing are matters for the judiciary and the court administration and that it is not something in which the prosecution can or should ordinarily become involved.
20. As it seems to me, whilst it is right to say that the functions of the court and the prosecution are different, any prosecutor will know that the failure to challenge at an early stage what appears to the prosecution to be a wrong or inappropriate listing decision by the court will, if the challenge is mounted later and succeeds, inevitably result in a delay to the commencement of the trial. Each case will depend on its own facts, but a six-or seven-handed case involving allegations concerning the importation of substantial quantities of drugs scheduled to last six weeks plainly can rarely, if ever, be accommodated in a suitable court at short notice. Equally, I consider that it is too narrow a view to take of the prosecution's responsibilities to say that it cannot or should not ordinarily be involved in listing issues. The point, as it seems to me, is that, whilst the court is the ultimate arbiter in listing matters and indeed the venue of a trial, all parties have the right to make submissions about these matters. To the extent that authority is needed to support that general proposition, the case of R v Worcester Crown Court of 14th December 1999, to which Mr Brown drew my attention, supports it. That case was to do with the time of listing but since choice of venue can undoubtedly affect the time of listing, the principle remains. The later the application for a change of venue, the more likely it is that it will have consequences that may affect the trial date.
21. Without of course underestimating the resource implications, human and otherwise, of preparing a case of such complexity as this one, involving 200 witnesses and over 2,000 pages of exhibits, and bearing in mind that there were related cases also under investigation, it is difficult to see why that should have prevented a suitable challenge to what was perceived to be a wrong listing decision being mounted as soon as the decision had been made or at least at a relatively early stage thereafter once its implications had been appreciated. HHJ Boney concluded that the prosecution here seems to have behaved as if it acquiesced in the change of venue that Royce J had ordained contrary to their initial wishes. HHJ Boney rejected the submission that the late application was because the full seriousness and difficulty of the case had only become apparent with the passage of time and that only then did it become apparent that the need for holding it at a designated court centre became more compelling. HHJ Boney's conclusion in this respect was as follows:

"The Crown's reply to these points, and I hope I do not misrepresent or oversimplify Mr Bryant-Heron's reply, is really to the effect that back in November the full seriousness of this case had not fully dawned on the Crown and it was, as the case preparation and logistics of presenting it progressed, that the need for holding this case at a designated court centre became stronger. I have to say I do not find that argument easy to accept in all the circumstances. Here was a case which was reckoned grave enough to receive the attention from the start of the Organised Crime Division and the protocol had been overridden by the senior presiding judge without their apparently having any say in the matter of the kind which they later insisted on presented before Field J. There was no reason why, as the realisation increasingly dawned, that trial at Portsmouth was inappropriate, an application could not have been made before Royce J in December to reconsider his view, especially if the Crown's view had lacked adequate presentation the first time the judge had considered it."

22. My task, of course, is simply to review the decision of HHJ Boney, not to form any independent view as such. For my part, I cannot see any basis upon which that conclusion could be challenged on Wednesbury grounds and indeed I would have said it would have been the conclusion made by most, if not all, judges confronted with the material presented to HHJ Boney. I am faced with an application to set aside on Wednesbury grounds the decision of a very experienced judge who had the benefit of full argument and who was able to review all the evidential material. He did so with obvious care. Whilst, of course, if persuaded that he took into account some irrelevant consideration that affected his decision, I would have intervened and set aside that decision. However, I am not persuaded that any such error can be detected in HHJ Boney's approach. He gave detailed reasons which indicate clearly to the prosecution why the application was refused and in that context the words of the late Lord Bingham in McDonald that I have quoted seem to me to be very much in point. I am prepared to hold that the application for judicial review was arguable because Mr Bryant-Heron said, and it has not been disputed, that there is no reported case where a decision concerning the extension or not of a custody time limit has depended on a choice of venue issue. Accordingly, I grant permission to apply for judicial review. However, I refuse the application on its merits and it must be dismissed.
23. I should perhaps say that I was pressed by several counsel with the proposition that the email of 3rd March which prompted Field J to make the decision he did was not, as I have already indicated, seen by any of the defendants representatives and it did not, it is suggested, contain a number of matters that really ought to have been drawn to his attention such as might have influenced his decision the other way. HHJ Boney drew no conclusions about this and, since my role is that of review of his decision, I make no comment about those suggestions. Nonetheless, for the reasons that I have given and given briefly, the application is dismissed.
24. Right, well that is the decision. Where do we go from here?
25. MR BIGGS: I do not think we really go anywhere, my Lord, no. That is the end of these proceedings.
26. MR JUSTICE FOSKETT: You are not instructed to seek to take this any further?
27. MR BIGGS: I am not, no.
28. MR JUSTICE FOSKETT: Well, then, as I understand it, the position is that strictly speaking the defendants are entitled to release later on, but bail does enter into the --
29. MR BIGGS: Conditions were agreed --
30. MR JUSTICE FOSKETT: Were there?
31. MR BIGGS: -- and approved by HHJ Boney, yes.
32. MR JUSTICE FOSKETT: Were they? That is all dealt with, is it?
33. MR BIGGS: And providing the prison is informed.
34. MS JONES: Yes.
35. MR BIGGS: With one wrinkle, if I can call it that, which you should be addressed on. But, providing the prison is informed, then they will be released today.
36. MR JUSTICE FOSKETT: I see.
37. MS JONES: The one wrinkle relates to Mr Edwards, my lay client. One of the bail conditions was that he surrender his passport. In fact, he does not have a passport.
38. MR JUSTICE FOSKETT: Right.
39. MS JONES: Communications and evidence in support of that has been provided to the Crown. Indeed, they have, within the body of their exhibits, some of that material and I think, talking to those who instruct my learned friend and prior to coming back into court, that perhaps the appropriate way would be for that to be changed to "not apply for any international travel documents".
40. MR JUSTICE FOSKETT: Right.
41. MR BIGGS: Not a matter for my Lord, in my submission.
42. MR JUSTICE FOSKETT: Well, I was going to say, I am listening with interest to all this -- I mean, I have alerted the Recorder of Winchester to what I thought was going to be the outcome of this when I was composing my judgment over lunch, so a court or judge can be found there to deal with any matters that might arise and so -- which is obviously the right venue for it to be, but anyway, they know what is coming.
43. MR BIGGS: Thank you.
44. MR BROWN: My Lord, might I ask for a representation order for a solicitor and counsel on behalf of Mr Roberts?
45. MR JUSTICE FOSKETT: Yes, I do not see why not.
46. MR BROWN: I am very grateful.
47. MR POWERS: On behalf of Mr Burgess as well, please, my Lord.
48. MR JUSTICE FOSKETT: Yes. Well, you can all have whatever you require. Although I probably did not refer to whatever it is, then I am grateful for all your assistance.
49. Right, well, thank you very much indeed.