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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Leeds Crown Court Ex Parte Wardle [2001] UKHL 12; [2001] 2 All ER 1 (8th March, 2001)
URL: http://www.bailii.org/uk/cases/UKHL/2001/12.html
Cite as: [2001] ACD 82, [2001] 2 WLR 865, [2002] AC 754, [2002] 1 AC 754, [2001] HRLR 29, [2001] 2 All ER 1, [2001] 2 Cr App R 20, (2001) 165 JP 465, [2001] UKHL 12, (2001) 165 JPN 327, [2001] 2 Cr App Rep 20

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Leeds Crown Court Ex Parte Wardle [2001] UKHL 12; [2001] 2 All ER 1 (8th March, 2001)

HOUSE OF LORDS

Lord Slynn of Hadley Lord Nicholls of Birkenhead Lord Hope of Craighead Lord Clyde Lord Scott of Foscote

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA

v

LEEDS CROWN COURT (RESPONDENTS) EX PARTE WARDLE (AP) (APPELLANT)

(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION)

ON 8 MARCH 2001

[2001] UKHL 12

LORD SLYNN OF HADLEY

My Lords,

1. The certified point of law on this appeal is "When, in a Magistrates' Court does the charging of an offence cause a fresh custody time limit to run?" It presumes that a custody time limit is already running in respect of one offence charged and that, to put it neutrally, a second charge of an offence is brought.

2. What happened here was that the appellant on 17 August 1998 was arrested for a murder committed on 20 July of that year in the course of a violent burglary. The appellant was released but subsequently arrested again and he was charged with murder on 7 January 1999. He appeared before the Leeds Magistrates' Court on the following day.

3. The police had two statements from a Home Office pathologist which concluded that the victim's death occurred because of minor injuries in the course of a physical struggle and the fear for his safety which that engendered. It was plainly a case in which the police had difficulty in concluding whether murder was the appropriate charge.

4. By virtue of Regulation 4 of the Prosecution of Offences (Custody Time Limits) Regulations 1987 (SI 1987/299) the time during which the appellant could be detained in custody on the murder charge expired on 19 March 1999. On 11 March the defendant's solicitor received 66 witness statements and 1600 pages of documents including police statements. The Crown Prosecution Service said in a letter of 10 March "Whilst the charge of murder is to be discharged at this stage we reserve counsel's right to reinstate the same should he feel it appropriate on his perusal of the documents after committal".

5. When the appellant appeared before the magistrates' court on 19 March 1999 the prosecution offered no evidence on the murder charge but laid a charge of manslaughter. They sought an extension of time for the appellant to be kept in custody on the murder charge. The Stipendiary Magistrate acceded to the application and extended the custody time limit on the murder charge and further held that a new custody time limit was to be applied to the manslaughter charge.

6. On appeal, the Crown Court judge on 22 March 1999, held that the original time limit should not be extended since the prosecution had not acted with reasonable expedition but he accepted that a new time limit applied to the manslaughter charge. The judge said:

7. On 23 April the appellant was committed for trial and on 18 May the Crown Court considered a new indictment charging (a) manslaughter (b) wounding with intent and (c) aggravated burglary. The appellant pleaded not guilty but at the trial on 22 September he pleaded guilty to manslaughter, the other charges remaining on the file and on 24 September he was sentenced to 10 years imprisonment.

8. The Prosecution of Offences Act 1985 ("The 1985 Act") in section 22 provides:

"22.—(1) The Secretary of State may by regulations make provision, with respect to any specified preliminary stage of proceedings for an offence, as to the maximum period—

9. Subsection (3) of section 22 provides that the court may at any time before the expiry of the time limit imposed by the Regulations extend, or further extend, that limit. The court is not empowered to do so unless it is satisfied as to certain matters. At the relevant time these were "(a) that there is good and sufficient cause for doing so; and (b) that the prosecution has acted with all due expedition". By section 43 of the Crime and Disorder Act 1998 the requirement from 1 June 1999 was that the court should be satisfied that the prosecution "has acted with all due diligence and expedition"; and by section 22 (11ZA) it was provided that "For the purposes of this section, proceedings for an offence shall be taken to begin when the accused is charged with the offence or, as the case may be, an information is laid charging him with the offence".

10. By the Regulations to which I have referred, made pursuant to section 22 of the 1985 Act, it was provided:

"4.(1) the maximum period during which a person accused of an indictable offence other than treason may be in the custody of a magistrates' court in relation to that offence while awaiting completion of any preliminary stage of the proceedings specified in the following provisions of this Regulation shall be as stated in those provisions.

(4) In the case of an offence triable on indictment exclusively the maximum period of custody between the accused's first appearance and the time when the court decides whether or not to commit the accused to the Crown Court for trial, shall be 70 days. . . "

11. Time limits are provided for offences triable either on indictment or summarily and for offences triable summarily. Thus as to the former the period between the accused's first appearance and the start of the summary trial or the time when the magistrates' court decides whether or not to commit to the Crown Court is to be 70 days; when the court decides within 56 days of the accused's first appearance to proceed to summary trial, the time limit between the accused's first appearance and the date of the start of the summary trial must not exceed 56 days. As to offences triable summarily the period of detention between the accused's first appearance and the date of the start of the summary trial must not exceed 56 days.

12. Regulation 5 provides for custody time limits in the Crown Court. The wording of these provisions is different and nothing specifically turns on them in the present appeal but it is to be noted that in Regulation 5(2) where a person is accused of an indictable offence other than treason and is committed to the Crown Court for trial

13. By paragraph 5(4) it is provided:

14. By section 4 of the Bail Act 1976 a person who is accused of an offence must be granted bail when he appears or is brought before a magistrates' court or the Crown Court in the course of or in connection with proceedings for the offence except as provided in Schedule 1 to the Act. It is thus plain that at the conclusion of the custody time limit, bail must be granted subject to one of the exceptions in the Schedule.

15. In the Divisional Court, Mitchell J, with whom Kennedy LJ agreed, considered that although it was technically not necessary to have introduced a new charge of manslaughter since even on the murder charge the Magistrate could have committed on the charge of manslaughter, this was "nonetheless a thoroughly desirable course to take, because accused persons should only be charged, committed and tried for offences which are reflected in the available evidence" even if there was a risk of "avoiding the statutory consequence of thoroughly dilatory preparation". No question arises before your Lordships as to whether refusal to extend the time on the earlier charge was justified. Mitchell J then considered in detail five cases where the problem as to whether fresh time limits applied to a substituted or an additional offence arose. I refer to the facts and rulings in those cases as set out in his judgment without repeating them. He did, however, lay particular emphasis on the judgment of Lord Bingham of Cornhill CJ in R v Burton on Trent Justices, Ex p Ashleigh-Nicholson [1998 ] COD 262, 17 December 1997, in which he said:

16. Mitchell J rejected the argument that the difference between murder and manslaughter was one of form and not of substance. In the light of the decided cases he said "I . . . have no doubt that the preferring of the manslaughter charges in this case properly resulted in the creation of a new custody time limit". Although abuse of process is not alleged in this case he added that he could not see how such an allegation could succeed because "it is desirable that where the evidence only warrants an allegation of manslaughter then manslaughter should be charged and murder withdrawn". He expressed concern, however, that since it was difficult to establish "abuse of process" since bad faith must be established, new time limits could be adopted which would defeat the purpose of the Regulations.

17. It is of coure important to bear in mind the purpose of the statute and the Regulations. In R v Manchester Crown Court, Ex p McDonald [1999] 1 WLR 841 Lord Bingham CJ said, at p 846:

18. It is thus plain that Parliament intended that there should be limits to the period during which a person could be detained. The Secretary of State has imposed those limits by the Regulations at the expiry of which bail must be granted. No question arises on this appeal as to the meaning of the Regulations where only one charge is brought and whether or not it includes one or several offences. The question is whether when an offence is subsequently charged whether by alteration of an existing charge or the addition or substitution of a new charge a new limitation period arises in respect of the altered or new charge. It is clear that the additional substitution of a new charge does not affect the limitation period for the original offence charged. That can only be extended by an order under section 22(3) of the 1985 Act if the prescribed conditions are satisfied. The courts have also clearly recognised that a new period does not begin where the additional or substituted charges are sought to be added in circumstances which constitute an abuse of the process of the court though it is not clear what is the ambit of that exception.

19. On existing authorities of the Divisional Court, with which I agree, the mere change in the details of the charge which is necessary e.g. because of new evidence, does not in itself mean that time begins to run again. The offence is still the same to which the accused first appeared in court even if the details have been changed. If it were otherwise, the prosecution could endlessly add or change detailed particulars of the offence even if with an intention related only to the proper presentation of the case and time would begin to run again. That is not the situation in the present appeal.

20. It is also common ground that where the first and second offences are plainly distinct, a charge of the second offence attracts its own separate time limit. Detention in the custody of the magistrates' court on a charge of rape added to a charge of burglary committed on the same occasion is to be measured by the period of 70 days from the accused's first appearance on the rape charge. Although the section does not specifically deal with the addition to or substitution of offences to or for an existing offence charged, this seems to me plainly to be right. A separate offence has a separate time limit.

21. On this appeal the appellant concedes that the charging of a new offence would cause a fresh time to run unless the original offence charged necessarily includes or amounts to, whether expressly or impliedly, the new offence charged or where the prosecution in charging the new offence is "solely or substantially" influenced by a desire to cause a fresh custody time to run. The latter it is said would be inconsistent with the purpose of section 22 of the 1985 Act and contrary to Article 5 of the European Convention of Human Rights and an abuse of process.

22. It is to be noticed that section 22 empowers the Secretary of State to lay down periods for any stage of proceedings for an offence or time in custody "in relation to that offence". By subsection (11ZA) proceedings for "an offence shall be taken to begin when the accused is charged with the offence". By Regulation 4(1) the maximum period of custody "in relation to that offence while awaiting completion of any preliminary stage of the proceedings" is as stated in the Regulations. For an offence triable only on indictment the period is from the accused's first appearance and the time when the court decides whether or not to commit him to the Crown Court—that must mean that the period prima facie runs for the offence on which he appears before the magistrates i.e. for each offence from the date of his appearance in relation to that offence. The emphasis is on the particular offence in each case.

23. Reliance is placed however by the appellant on section 6(2) and section 6(3) of the Criminal Law Act 1967. The former provides that on an indictment for murder a person found not guilty of murder may be found guilty inter alia of manslaughter or of causing grievous bodily harm with intent or with an attempt to do so. Subsection (3) provides:

24. I do not consider that these provisions conclude the present question. They simply list the other offences of which the accused may be convicted. They do not make or deem them the same offence. Section 6(2) expressly treats the alternative convictions as being of a distinct offence and section 6(3) recognises that there may be conviction of "that other offence". If it had been intended to read "offence" in section 22 of the 1985 Act or Regulation 4 as including other offences of which he might be convicted, it could have said so. It is not surprising that it did not do so. Section 6 is concerned with what happens at the end of a trial. Regulation 4 is concerned with the preliminary stages of the proceedings up to the time when a decision to commit is taken where the court is concerned with the offences charged rather than with the offence proved. Magistrates are in relation to indictable offences looking to see if there is evidence of an offence justifying his being committed to trial. That is an exercise they carry out separately in relation to the initial offence charged and to the proposed additional or substituted offence. The offences charged in the two informations are separate offences and it is to them separately and solely that Regulation 4(4) is directed. Magistrates are not concerned under that regulation with what options would be available on the evidence as it turns out at the trial if the accused is found not guilty of the initial offence charged. They are concerned only with "that offence" charged in the information (see Regulation 2(2)(c)).

25. The appellant has submitted that a new custody time limit does not begin if "the original offence charged necessarily includes or amounts to, whether expressly or impliedly, the new offence charged". This at first sight has its attractions, but the question whether one offence "impliedly" or "necessarily includes" the other, may not be an easy one for magistrates to answer when a new information is laid. I also think that it may widen the exceptions to the general rule that each offence is to be taken as a separate offence under the regulation beyond what is intended or justified. Subject to the power of the court to control improper applications as being an abuse of process, it is in my view only where the constituent elements of the new offence are in substance the same as those of the original offence, so that it can be said that the offences are substantially the same, that a new custody time limit does not begin. That is not so in the comparison of murder and manslaughter for reasons which it is unnecessary to elaborate. The mens rea is wider, the effect of establishing self-defence or provocation are sufficient examples. It may not be so clear in many other cases and I recognise the restrictions on preventing a new custody time limit from beginning which that produces but in my view it flows from the structure and wording of the Regulations. As Buxton J said in R v Wolverhampton Magistrates' Justices, Ex p Uppal (1994) 159 JP 86, at p 92:

26. This may or may not be an undesirable result but in my view it is a clear consequence of the language of the statute. I decline to dismiss as absurd the opinion of judges experienced in criminal law and procedure in the cases in the Divisional Court to which we have been referred and the views of the Stipendiary Magistrate, the Crown Court judge and the Divisional Court in the present case. It is not in my view right in any event to say that the result is so absurd that the court must be driven to find some other meaning applicable in all cases coming before the magistrates' court which may well not be so clear cut as in the present case. If the result is thought to be unreasonable (and I accept Mitchell J's comments) it is for Parliament to change the provision of the statute and the Secretary of State to reconsider his regulation.

27. It is accepted that where to add or substitute a new charge amounts to an abuse of process, a new custody time limit does not begin. It has been said that where the new charge is brought in bad faith or dishonestly, that would amount to an abuse of process. In my view the ambit of "abuse of process" is not so limited. If a new charge is brought simply to keep the accused in custody for a longer period, that is clearly contrary to the intention of the legislation and constitutes an abuse of process. As Professor Smith said in his commentary to R v Great Yarmouth Magistrates', Ex p Thomas, Davis and Darlington [1992] Crim LR 116, at p 117:

28. Equally if the court is satisfied that the way in which and the time at which the new charge is added or substituted, indicates that it is not done for the genuine purpose of introducing a new charge on a revised assessment of the case, but is done primarily to keep the accused in custody on the initial charge, then this will constitute an abuse of process. Of course on the other hand if the purpose is genuinely to introduce a new charge on such a revised assessment the fact that the accused begins a new custody period does not in itself constitute an abuse of process.

29. It was not contended below that there was an abuse of process here and on my view of the construction of the section and the Regulation such a matter does not fall for consideration on the present appeal.

30. Though they did not do so in the courts below, before your Lordships the appellants have relied on Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as incorporated in the Human Rights Act 1998. They say further that pursuant to section 3 of that Act section 22 of the 1985 Act and the Regulations must be read and given effect to in a way compatible with Convention rights so far as it is possible to do so.

31. Article 5 provides so far as relevant:

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;. . .

(3) Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial".

32. On the view which I have formed of the relevant legislation the appellant was deprived of his liberty in accordance with a procedure prescribed by law. It was detention effected for the purpose of bringing him before a competent legal authority on reasonable suspicion of having committed an offence. He was brought promptly before a court and was entitled to trial within a reasonable time.

33. To show that procedures of domestic law have been complied with is necessary but it is not enough. Those procedures must themselves respect the objectives of Article 5 of the Convention. It has been said by the European Court that the purpose of Article 5 is "to protect the individual from arbitrariness" X v United Kingdom (1981) 4 EHRR 188, Bozano v France (1986) 9 EHRR 297, Brogan v United Kingdom (1988) 11 EHRR 117 and Amuur v France (1996) 22 EHRR 533. Moreover, it is necessary not merely that the appellant should have access to a court under precise rules, but his detention should be justified as a matter of public interest and then only during a reasonable time (see W v Switzerland (1993) 17 EHRR 60 and Wemhoff v Germany (1968) 1 EHRR 55.

34. Full weight must be given to these cases relied on by the appellant. In my view, however, it has not been shown that his detention was arbitrary. No complaint can be made for the first 70 day period: the second is justified because a new charge is brought on the basis of a very substantial body of evidence delivered to the defence shortly before the second charge was laid. It was right to change the charge to the lesser offence of manslaughter in the light of the reconsideration of the case. For the serious offences involved here, I do not consider that the periods prescribed in the Regulations can be said to be unreasonable.

35. Moreover there was an opportunity to challenge the laying of the second charge and the second detention period as an abuse of the process of the court. That was not done, understandably. There existed a procedure by which the decision of the Magistrate could be challenged by way of judicial review. That was done in this case. During the period when the appellant was in the custody of the magistrates' court, the provision of section 128(6) of the Magistrates' Court Act 1980 requires that "a court may not remand a person for a period exceeding 8 clear days"

36. Moreover in this case the time spent in custody on remand counts as time served by him as part of the sentence of 10 years imprisonment after conviction (section 9(3) of the Crime (Sentences) Act 1997).

37. In all these circumstances I do not consider that there was here a violation of Article 5 of the Convention. Section 3 of the Human Rights Act therefore does not fall for consideration.

38. Accordingly I would dismiss the appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

39. Read literally, regulation 2(2) and regulation 4 of the Prosecution of Offences (Custody Time Limits) Regulations 1987 permit of only one interpretation. Manslaughter and murder are different offences. They are different offences even if they are based on the same facts. But the literal interpretation of the regulations produces a result which is, frankly, absurd. It produces a result which cannot have been the intention of Parliament.

40. Take the case of a person charged with the offence of murder. He is remanded in the custody of a magistrates' court. The maximum period he may be detained in custody, between the date of his first appearance and the decision on whether or not to commit him to the Crown Court for trial, is 70 days. This maximum period may be extended, but only in carefully defined circumstances. After some weeks the prosecution decides, wholly properly, that the evidence is not adequate for a charge of murder but that it is adequate for the lesser charge of manslaughter. So the prosecution takes the proper step of substituting the lesser charge of manslaughter for the more serious charge of murder. No new facts are involved. According to the respondent's argument, that substitution sets in motion a new custody time limit.

41. The absurdity of this contention is that the accused person could have been committed to trial on a charge of manslaughter, and if tried could have been convicted of manslaughter, even if the sole charge had remained a charge of murder. Throughout, once charged with murder, the accused was implicitly facing also the lesser charge of manslaughter. Throughout he was at risk of being convicted of manslaughter. In that sense, a charge of the more serious offence of murder always carried with it a charge of the lesser offence of manslaughter. To my mind it would be nothing short of a nonsense if making explicit what is already implicit were to set in motion a fresh custody time limit. That would be irrational. But this is all that happens when the more serious charge of murder is dropped, and the less serious charge of manslaughter is substituted: one charge is abandoned, and another charge, of which the accused was already at risk, is made explicit. The substitution introduces nothing new. The facts involved in the lesser charge are included within the embrace of the facts involved in the more serious charge. Why should the substitution give rise to a new custody time limit?

42. The power of the court to grant bail does not provide a meet response to this absurdity. Parliament intended that accused persons should have the benefit of fixed maximum periods of detention in custody, extendable only in certain circumstances. If a new custody time limit is set in motion, an accused person loses that intended benefit.

43. Nor does the court's ability to prevent abuse of its process provide the answer. The example I have given assumes that throughout the prosecution exercised its powers and discharged its responsibilities properly and conscientiously.

44. For these reasons I agree with the views and conclusion of my noble and learned friend Lord Scott of Foscote. The literal interpretation, producing an absurd result, must yield to an interpretation which gives effect to the intention properly to be attributed to Parliament. For custody time limit purposes a charge of an offence is to be regarded as including also a charge of a lesser offence of which the person charged could, by virtue of section 6 of the Criminal Law Act 1967, be found guilty. Regulation 2(2) and regulation 4 are to be interpreted accordingly. I would allow this appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

45. This appeal has been brought with a view to obtaining an answer to the following question of law: "When, in a magistrates' court, does the charging of an offence cause a fresh custody time limit to run?" The answer to this question depends upon the proper interpretation of regulation 4 of the Prosecution of Offences (Custody Time Limits) Regulations 1987 [SI 1987/299] in which the provisions as to custody time limits in magistrates' courts are to be found.

Background

46. Prior to the coming into force of section 22 of the Prosecution of Offences Act 1985 there were no statutory rules which obliged the criminal courts in England and Wales to complete the various stages in the criminal process within a fixed number of days from the date when a person was remanded in custody before trial. In 1981 the Home Affairs Committee of the House of Commons observed that, quite apart from the deleterious consequences of a large remand population for the prisons and of long waiting times for individual prisoners, there was widespread agreement that excessive delay was harmful in a more general way to the criminal justice system: Fourth Report, Session 1980-81, The Prison Service, HC 412-l, para 55. Those who gave evidence to the committee expressed different views on the merits of imposing a time limit on criminal trials. But the committee concluded that on balance it would be advantageous for legislation to be introduced to extend to England and Wales the 110-day rule that had long been in force in Scotland: para 58. The current provisions relating to the 110-day overall time limit are set out in section 65 of the Criminal Procedure (Scotland) Act 1995. Section 65(4)(b) of that Act provides that if the trial of the case is not commenced within that period the accused shall be liberated forthwith and that thereafter he shall be for ever free from all question or process for that offence. The committee's recommendation that this rule be extended to England and Wales was rejected by the government. The reasons which were given for its rejection were that the Scottish rule operated in a very different context, and that delays in the commencement of trials in England and Wales were not usually attributable to the fault of the prosecutor but to the fact that the backlog of work was too large for available court capacity to handle within the time limit of eight weeks laid down by rule 19 of the Crown Court Rules 1971: The Government Reply to the Fourth Report of the Home Affairs Committee, Session 1980-81, Cmnd 8446 (1981), pp 13-14.

47. The Home Affairs Committee returned to this issue in 1983: First Report, Session 1983-84, Remands in Custody, HC 252-I. The committee noted that the situation which had been observed in 1981 had grown much worse, as the number of prisoners held on remand had increased considerably: para 3. There was renewed concern that the length of time spent on remand by a great many accused persons was unacceptable and that there were excessive delays in bringing cases to trial: para 9. After taking evidence from various witnesses including the Lord Chancellor, Lord Hailsham of St Marylebone, and the Solicitor General for Scotland, Peter Fraser QC, the committee came up with a different solution to the problem which it was thought would be more acceptable. It recommended that the government should commit itself in principle to introducing statutory time limits for the period from arrest to trial, and that it should embark upon a series of experiments designed to demonstrate what kind of time limits would be feasible in summary and indictable cases respectively: para 31. On this occasion the committee's recommendations were favourably received by the government: The Government Reply to the First Report of the Home Affairs Committee, Session 1983-84, Cmnd 9322 (1984). The legislation with which this case is concerned is the product of the studies which were then carried out in order to determine what kind of statutory time limits would be feasible.

The Facts

48. The appellant appeared before the Leeds Magistrates'Court on 8 January 1999 on an information charging him with the murder of John Nutter. Mr Nutter had collapsed and died during a burglary which was being carried out at his home in Pudsey, West Yorkshire on 20 July 1998. Expert opinion as to the cause of his death had previously been sought and obtained from a pathologist. The pathologist's opinion was that Mr Nutter had been suffering from a long term hypertensive heart disease, and that a combination of minor injuries and the accompanying fear during the attack would have been sufficient to cause his death. On 4 March 1999 the pathologist produced a second opinion to the same effect, namely that Mr Nutter's death occurred when it did due to the combination of minor injuries and the fear in which he had been placed during the burglary. When the appellant appeared in Leeds Magistrates' Court on 19 March 1999 the Crown offered no evidence on the murder charge, but a fresh charge was laid against the appellant for manslaughter.

49. The 70 day custody time limit in terms of regulation 4(4) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 began to run when the appellant first appeared on 8 January 1999. It was due to expire on 19 March 1999. When he appeared in Leeds Magistrates' Court on that date, the charge having been changed from murder to manslaughter, the Crown sought an extension of the custody time limit. The stipendiary magistrate granted the Crown an extension. He found that the prosecution had acted with all due expedition and that there was good and sufficient cause for an extension. But he also held that the new charge of manslaughter attracted its own custody time limit under regulation 4(4). The effect of his decision was that the appellant's 70 day custody time limit began to run as of new from 19 March 1999.

50. The appellant appealed against this decision to the Crown Court on 22 March 1999. In the Crown Court Judge Hoffman held that the Crown had not acted with due expedition and that the old custody time limit ought not to have been extended. But he also held that, as manslaughter was a different offence from murder, the appellant's custody time limit ran de novo from the preferment against him of the new offence of manslaughter. An application for judicial review of that decision was dismissed by the Divisional Court (Kennedy LJ and Mitchell J) on 26 April 1999 on the ground that the preferring of the manslaughter charge properly resulted in the creation of a new custody time limit. Mitchell J expressed concern at the end of his judgment about the considerable measure of latitude which had been extended to prosecutors to bypass controls on the extension of the prescribed time limit by introducing new or different charges based on the same evidential material. In his concurring judgment Kennedy LJ said that he agreed, not least with the sentiments expressed at the end of Mitchell J's judgment.

51. On 18 May 1999 the appellant appeared before the Recorder of Leeds at a plea and directions hearing. A new indictment was preferred against him which contained three counts. These were manslaughter, wounding with intent and aggravated burglary. The appellant pleaded not guilty to all three counts, and the case against him was set down for trial on 22 September 1999. On the date of the trial he pleaded guilty to manslaughter. The charges of wounding with intent and aggravated burglary were left on the file. He was sentenced to ten years' imprisonment.

52. In terms of section 9(3) of the Crime (Sentences) Act 1997, the court is required to direct that the number of days for which an offender has been remanded in custody in connection with the offence or a related offence for which he is being sentenced shall count as time served by him as part of the sentence. In the result the appellant has not been prejudiced by the decision that a new custody time limit began to run against him when the charge of manslaughter was brought on the date when the original custody time limit was due to expire. Nevertheless his case raises an important issue of principle. He would have been entitled to be released on bail immediately on the expiry of the original custody time limit, which Judge Hoffman held ought not to have been extended, if the correct view was that no new custody time limit was introduced by the bringing of the charge of manslaughter.

The Statutory Provisions

53. The Secretary of State was given power by section 22 of the Prosecution of Offences Act 1985 to set time limits with respect to the preliminary stages of proceedings for an offence. Subsection (1) of that section provides:

(a) to be allowed to the prosecution to complete that stage;

(b) during which the accused may, while awaiting completion of that stage, be -

(ii) in the custody of the Crown Court. . . ."

54. No regulations have yet been made as to overall time limits. But regulations have been made which govern the period of time an accused may be kept in the custody of the magistrates' court and the Crown Court. These are contained in the Prosecution of Offences (Custody Time Limits) Regulations 1987, as amended: for a list of the amending regulations, see Archibold 2001, para 3.56. Custody time limits in the magistrates' court are governed by regulation 4, which so far as relevant to this case provides:

55. Custody time limits in the Crown Court are governed by regulation 5, which so far as relevant provides:

…

…"

56. If the charge against the appellant from the outset of the proceedings against him had been one of manslaughter and not murder, the effect of these provisions would have been as follows. Manslaughter is triable only on indictment. So the maximum period during which the appellant could have been detained in the custody of the magistrates' court between his first appearance in that court and the time when the court decided whether or not to commit him to the Crown Court for trial would have been 70 days: regulation 4(4). The maximum period during which he could have been detained in the custody of the Crown Court between the time when he was committed to that court for trial and the start of the trial would have been 112 days: regulation 5(3)(a). The fact that the indictment which was preferred against him in the Crown Court included the two other offences of wounding with intent and aggravated burglary would, in this case, have made no difference to the length of the period: see regulation 5(6)(a). The position would have been different if the appellant had been committed for trial on a different occasion on those other two charges. Regulation 5(3) would then have applied in relation to the offences for which he had been committed for trial on different occasions separately: see regulation 5(4). It may be noted in passing that it has also been held in Scotland, in regard to the operation of the 110-day rule, that each offence has to be looked at separately in relation to the date when the committal took place: Ross v H M Advocate 1990 SCCR 182.

57. It has not been suggested in this case that the provisions of regulation 5 of the 1987 Regulations regarding the custody time limits in the Crown Court give rise to any difficulty. The question which the appellant has raised is directed only to the provisions of regulation 4. This is because no express provision is made in regulation 4 for cases where additional charges are preferred against the accused while he is in the custody of the magistrates' court. It is to be noted that regulation 4 must be read in the light of regulation 2(2)(c), which provides:

…

58. The wording of regulation 2(2)(c) reflects that of section 1(1) of the Magistrates' Courts Act 1980. Criminal proceedings in magistrates' courts are started by the appearance of the accused following arrest and charge or by the laying before the court of an information with a view to commencing a prosecution against him. Section 1(1) prescribes the procedure for the issuing of a summons to a person against whom an information has been laid to appear before the magistrates' court "to answer to the information." In the Crown Court the bill of indictment may contain a count charging an offence for which the accused has not been committed for trial in the magistrates' court. But the preliminary procedure in the magistrates' court is concerned exclusively with the offence which has been described in the information, summons or other document which has been laid before the court: regulation 2(2)(c). The basis upon which regulation 4 appears to proceed is that each information charging the accused with an offence attracts its own custody time limit.

59. To complete this review of the statutory provisions, it is necessary to mention the provision which deals with extension of the custody time limits. This is section 22(3) of the Prosecution of Offences Act 1985 which, as amended by section 43 of the Crime and Disorder Act 1998 with effect from 1 June 1999, is in these terms:

60. At the time when the present case was in the magistrates' court, paragraphs (a) and (b) of that subsection provided simply that in the exercise of its power to extend the time limit the court had to be satisfied "(a) that there is good and sufficient cause for doing so; and (b) that the prosecution has acted with all due expedition." Guidance as to the tests laid down in section 22(3) was provided by Lord Bingham of Cornhill CJ in R v Manchester Crown Court, Ex p McDonald [1999] 1 WLR 841. At p 847C he said, with reference to the condition in section 22(3)(b), that 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." Mitchell J said that he regarded it as unsatisfactory that regulation 4 gave such latitude to prosecutors to subject persons to new time limits in the magistrates' court by bringing fresh charges against them. He said that this was inconsistent with the purpose of the regulation as it enabled the prosecution, in effect, to bypass the requirement in section 22(3)(b) that any extension of the time limit had to be justified by showing that all due diligence and expedition had been exercised.

The Argument in Outline

61. For the appellant Mr MacDonald QC submitted that the charging of a new offence in the magistrates' court will cause a fresh custody time limit to run unless (a) the new offence is the same as the original offence charged but with different particulars, (b) the original offence charged necessarily includes or amounts to the new offence charged, whether expressly or impliedly; or (c) in charging the new offence the prosecuting authority is committing an abuse of process. As to abuse of process, he submitted that the test to be applied was in need of reconsideration in view of dicta in the Divisional Court which indicated that in this context the test was that of bad faith or dishonesty. He also submitted that, now that the Human Rights Act 1998 is in force, section 3 of that Act requires regulation 4 to be read and given effect to in a way that is compatible with article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") which guarantees to the individual the right to liberty.

62. Applying these arguments to the facts of this case, he submitted that for the purposes of regulation 4(4) the original charge of murder should be regarded as including the new charge of manslaughter. This was because on an indictment for murder a person found not guilty of murder may be found guilty of manslaughter: Criminal Law Act 1967, section 6(2)(a). He submitted in the alternative that the Crown's decision to change the charge in the magistrates' court from one of murder to one of manslaughter in circumstances where an extension of the existing custody time limit could not be justified was an abuse of process if, contrary to his primary argument, the effect of that decision was to subject the appellant to a new custody time limit.

63. Mr Perry for the respondent accepted that a new custody time limit would not run if the new information consisted simply of an amendment to the particulars of the offence in the original information which had been laid before the court. In that event the offence in the new information would be in law the same offence as the original. He also accepted that a new custody time limit would not run if the laying of the new information could be said to be an abuse of process, as to which bad faith or dishonesty ought no longer to be regarded as the criterion. Where he parted company with Mr MacDonald was in regard to his proposition that a new custody time limit would not run if the original offence charged amounted to or included the new offence, either expressly or impliedly. He also parted company with him in regard to the question whether regulation 4, on his construction of it, was incompatible with article 5 of the Convention.

The Meaning of "Offence"

64. The first question is whether, according to ordinary canons of construction, the word "offence" when it appears in regulation 4(4) of the 1987 Regulations can be read as including those other offences of which the accused could be convicted at trial under sections 6(2) and 6(3) of the Criminal Law Act 1967. In other words, can the reference in the opening words of regulation 4(4) to "an offence triable on indictment" be read as including any other offence of which the accused could be convicted in the Crown Court if the jury were to find him not guilty of the offence with which he has been charged in the information before the magistrates?

65. Sections 6(2) and 6(3) of the Criminal Law Act 1967, which the appellant says should be read in to regulation 4(4) of the 1987 Regulations, provide:

66. Two points emerge from an examination of the wording of these subsections. The first is that the original offence and the alternative offences of which the person may be found guilty in the circumstances referred to are regarded as being in law different offences: see the words "of any offence not included above" in subsection (2) and "that other offence" in subsection (3). The second is that these provisions only apply where the trial is on indictment. Section 6 does not apply to proceedings in the magistrates' court.

67. As to the first point, the alternative offences mentioned in section 6(2) and (3) are not treated by the statute, either expressly or by implication, as forming part of the same offence as that which has been specifically charged in the indictment. This approach reflects a concept which is followed consistently throughout the entire scheme relating to committal proceedings and custody time limits in the magistrates' courts. In terms of section 1(1) of the Magistrates' Courts Act 1980 the justice may issue a summons requiring a person to appear before the magistrates' court to answer to an information that he has, or is suspected of having, committed "an offence". The function of the magistrates' court, as described in sections 4 to 6 of that Act, is to inquire into "an offence as examining justices": see section 5(1) and section 6(1) and (2). If a magistrates' court is satisfied that there is sufficient evidence to put the accused on trial by jury "for any indictable offence", the court must commit him for trial: section 6(1). The implication is that it will take that step with regard to "the offence under inquiry": see the concluding words of the subsection. Alternatively the court may commit him for trial "for the offence" if it is satisfied that all the evidence before the court consists of written statements tendered under the 1980 Act without consideration of their contents. Regulation 2(2)(c) of the 1987 Regulations defines a reference to a person's first appearance in relation to proceedings in a magistrates' court for an offence as being a reference to the time when he first appears or is brought before the court "on an information charging him with that offence." Regulation 4(5)(a) refers, where a court proceeds "to inquire into an information as examining justices", to the time when it begins to hear evidence for the prosecution "at the inquiry".

68. Thus the scope of the inquiry is determined by the information which has been laid before the magistrates' court. The guiding principle is that the offence should be described in the information clearly and definitely, without duplicity or uncertainty: Stone's Justices' Manual 2000, I-420. The court's function is to inquire into the offence charged in the information as examining justices. I do not think that there is any ambiguity about what is meant in regulation 4(4) by the word "offence" in these circumstances. It means the offence with which the person is charged in the information which has been laid against him in that court.

69. It is normal and proper practice for the prosecution to review the charge or charges in the information which was initially laid before the court as further inquiries are conducted into the state of the evidence. This may lead to the bringing against the accused of what are undoubtedly fresh charges, with the consequence that these new charges will attract their own custody time limit. But the question may be raised, as it has been in this case, as to whether the new charges truly are fresh charges or whether they are simply the old charges in a revised form and are thus subject to the original custody time limit.

70. In R v Burton on Trent Justices, Ex p Ashleigh-Nicholson [1998] COD 262, 17 December 1997 the applicant was charged with a number of offences of dishonesty. When he was charged with three further offences of dishonesty he was refused bail. A draft indictment was prepared which contained a number of new counts. The prosecutor applied to the magistrates' court for the new counts to be put to the applicant, for the old charges to be discharged and for the applicant to be remanded in custody. He also asked the court to note that, since there were new charges, there were correspondingly new custody time limits. The applicant applied for judicial review on the ground that the so-called new charges were simply the old charges with amendments which amounted to changes of detail only. The Divisional Court remitted this matter to the magistrates to consider. Lord Bingham of Cornhill CJ said:

71. But the question whether the difference between one charge and another is substantial would seem to be capable of only one answer if they involve two offences which are in law distinct or separate offences. As Lord Widgery CJ said in Jemmison v Priddle [1972] 1 QB 489, it is legitimate to charge in a single charge one activity even though that activity may involve more than one act. Questions as to whether, if a person stabs another person several times or steals several different chattels from several different rooms in the same dwelling house, he has committed one offence or several are best answered by applying common sense and deciding what is fair in the circumstances: R v Fyffe, Edwards, Woodford, Holloran and Callan [1992] Crim LR 442, per Russell LJ. But the general rule is that not more than one offence may be charged in one charge or, where the offence is charged in an indictment, in one count: Indictments Act 1915, Schedule 1, rule 4. The purpose of sections 6(2) and 6(3) of the Criminal Law Act 1967 is to enable alternative verdicts to be returned by juries under certain circumstances in the Crown Court. In the magistrates' court, to which section 6 of the 1967 Act does not apply, no relaxation is permitted against the rule against duplicity.

72. As to the second point, it is not part of the function of the magistrates' court in the case of an information charging an offence triable on indictment to consider whether a jury would be entitled to find the person guilty of another offence in the event of its finding him not guilty of the offence which has been specifically charged against him. The court's sole function is to examine the question whether there is sufficient evidence to put the accused on trial for the offence charged in the information. Furthermore the concern of the justices in these proceedings is essentially with questions of fact rather than with questions of law. The operation of the custody time limits is linked to the same process. Regulation 4(4) is designed to fit in with that procedure. The maximum period of 70 days begins to run when the accused first appears or is brought before the court "on an information charging him with that offence": regulation 2(2)(c). It ends, where the court proceeds to inquire into the information as examining justices, when it begins to hear evidence for the prosecution at the inquiry: regulation 4(5)(a). If the words "an offence triable on indictment" in regulation 4(4) were to be read as extending to the alternative offences of which the accused might be convicted after trial on indictment, this would introduce questions of law into the custody time limit regime which would greatly complicate the justices' function as examining magistrates. I would regard this as introducing an amendment to the regime which, if it is to be made, ought to be left to the legislature.

73. For these reasons I would hold that there is no basis, if the ordinary canons of construction are to be applied, for reading in these additional words into regulation 4(4). In my opinion each offence which is the subject of an information which is laid before a magistrates' court attracts its own custody time limit.

74. There remains the question whether this interpretation produces an absurd result which cannot have been intended by Parliament. I see the force of the objection to the introduction of a new custody time limit, in a case which does not involve any new facts, simply because the prosecution has decided after some weeks to depart from the more serious charge of murder and substitute for it the less serious charge of manslaughter. But I would be reluctant to hold, on the basis of this example, that Parliament must have intended in every case that, for the purposes of the custody time limits laid down in regulation 4, the offence charged is to be regarded as including also a charge of a lesser offence of which the person could, by virtue of section 6 of the Criminal Law Act 1967, be found guilty. The regulation cannot mean one thing in one case and something else in another. We cannot pick and choose according to the facts of each case. It seems to me that, unless your Lordships can be confident that an absurd result will be produced in all cases, the proper conclusion is that the regulation must be applied according to the ordinary meaning of the words used by Parliament.

75. Subsection (2) of section 6 of the 1967 Act deals with the alternative offences which are available to the jury on an indictment for murder. It is sufficient for present purposes to consider the alternative offence of manslaughter. One of the features of this offence is that, for a verdict of manslaughter to be returned instead of murder, the jury normally needs to be in possession of facts which are additional to those which are needed to prove murder. Provocation reduces murder to manslaughter, but a jury is not entitled to consider this matter unless there is some evidence of a specific act or words of provocation resulting in loss of self-control by the accused: R v Acott [1997] 1 WLR 306. This may involve the consideration of further information which was not, for the purposes of the murder charge, before the justices. Then there is the case of persons suffering from diminished responsibility. Section 2 of the Homicide Act 1957 provides that a person who is suffering from diminished responsibility who would be liable, but for that section, to be convicted of murder is liable instead to be convicted of manslaughter. The prosecutor does not normally have to lead evidence as to the accused's mental state on a murder charge. This is because the presumption of mental capacity is normally sufficient to prove that he acted consciously and voluntarily: Bratty v Attorney General for Northern Ireland [1963] AC 386, 407, per Viscount Kilmuir LC. But a prosecutor who, after further investigation, decides to reduce a charge of murder to one of manslaughter on the ground of diminished responsibility may have to undertake the additional burden of leading evidence as to the accused's mental state. This may give rise to the need to bring further information before the justices, as the issue may then be raised as to whether the accused lacked the necessary intention because he was truly suffering not from diminished responsibility but from insanity. I do not think that it would be right in cases of that kind to regard the murder charge and the manslaughter charge as based on the same facts. They relate, of course, to the same incident of homicide. But there are additional facts in the one case which are not present in the other, and it is those additional facts which justify the reduced charge. I would not, speaking for myself, regard it as absurd that where manslaughter is substituted for murder in such a case by the prosecutor there should, for the purposes of regulation 4(4), be a new custody time limit.

76. Then there is the fact that section 6 of the 1967 Act refers to a variety of other offences of which the accused may be found guilty by a jury: see subsection (2) in regard to an indictment for murder and subsection (3) in regard to an indictment for any offence except treason or murder. In neither case however is a precise list given of these alternatives. They are to be determined either by reference to other legislation (see subsection (2)), or by reference to what is included either expressly or by implication "in the indictment" (see subsection (3)). The problem here, as I see it, is that these provisions are not apt for consideration at the stage of committal proceedings in the magistrates' court. There is no indictment at that stage, and there are at least some grounds for thinking that the justices ought not to have to consider the questions of law which may be raised by consideration of the available alternatives. Here again I would not, speaking for myself, regard it as absurd to suppose that Parliament did not intend to bring these alternative offences into consideration in that court for custody time limit purposes.

77. For these reasons I am not persuaded that the ordinary meaning of the words used in regulation 4(4) should be departed from and that there should be read into it a reference to the alternative offences of which the person could be found guilty by virtue of section 6 of the Criminal Law Act 1967 after trial in the Crown Court.

Compatibility with article 5

78. The next question is whether, in the light of the meaning which I would give to the word "offence" in regulation 4(4) according to its ordinary construction, there is an incompatibility with article 5 of the Convention which ought to be removed by applying to the regulation the approach to construction which the court is directed to take by section 3(1) of the Human Rights Act 1998.

79. Section 3(1) of the Human Rights Act 1998 provides that, so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. This means that, if according to its ordinary construction regulation 4(4) is incompatible with any of the Convention rights, a possible meaning for regulation 4(4) must be found that will prevent the need for a declaration of incompatibility. But one must first be satisfied that the ordinary construction of the regulation gives rise to an incompatibility.

80. Article 5 of the Convention, so far as relevant to this case, provides:

… (c)

…

81. Mr MacDonald submitted that the central purpose of article 5 was to protect the individual from a detention which was arbitrary. In Bozano v France (1986) 9 EHRR 297, para 54 the European Court said:

In Brogan v United Kingdom (1988) 11 EHRR 117, para 58 the Court said again that the fundamental right enshrined by article 5 was the protection of the individual against arbitrary interferences by the State with his right to liberty. To the same effect was the following passage in the Court's judgment in Amuur v France (1996) 22 EHRR 533, para 50:

82. In the light of these authorities Mr MacDonald submitted that it was not enough that the provisions of the 1987 Regulations relating to a person's detention while he was in the custody of the magistrates' court were precise and accessible. They had also to be so framed as to protect him against decisions which were arbitrary. The Regulations were defective in this respect because they left it open to the prosecution, during the running of the period of 70 days referred to in regulation 4(4), to subject the accused to a fresh period of 70 days simply by charging him with a different offence based on the same facts as those in the original information. The custody time limit could be extended several times over by this means. Unless an abuse of process could be established, decisions to that effect by the prosecutor were not subjected to any judicial control. To the extent to which the system which the regulations laid down was open to decisions by the prosecutor which were arbitrary, it was incompatible with article 5 of the Convention.

The Scheme of Article 5

83. Article 5.1 guarantees liberty and security of person. In this context the concepts of liberty and security are linked together, with the broad aim of protecting the person against an arrest or detention which is arbitrary: Bozano v France, para 54; Amuur v France, para 50. As the European Court said in W v Switzerland (1993) 17 EHRR 60, para 30, continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. To this end article 5.1 provides a right to liberty, which is subject to six specified exceptions and to two overriding requirements. The first requirement is that any deprivation of liberty must be in accordance with a procedure prescribed by law. The second requirement is that it must be lawful. To be lawful in this context, the detention must not only be lawful under domestic law. It must satisfy the requirements of the Convention that the domestic law on which the decision is based must be sufficiently accessible to the individual and must be sufficiently precise to enable the individual to foresee the consequences of the restriction: see R v Governor of Brockhill Prison, Ex p Evans (No 2) [2000] 3 WLR 843, 857H - 858C. It is the latter of these two overriding requirements that is in issue in this case.

84. Paragraphs 2 to 5 of article 5 provide a set of distinct procedural rights for persons who have been arrested or are being detained. We are concerned in this case with paragraph 3, which comprises three distinct rights. These are (1) the right to be brought promptly before a judge or other officer authorised by law to exercise judicial power; (2) the right to be released on bail, except where continued detention can be justified; and (3) the right to be tried within a reasonable period.

85. Two points in particular require to be noted about article 5.3 in the present context. The first is that the right to be released on bail is not absolute. But if bail is to be refused, the refusal must be justified on the facts of each case to the satisfaction of the judge or other officer. The second is that the purpose of the right to be tried within a reasonable period in article 5.3 is to ensure that no one spends too long in detention before trial. In Wemhoff v Germany (1968) 1 EHRR 55, para 5 the European Court said that the concern of article 5.3 was to minimise the period of provisional detention of the accused rather than to avoid prolongation of the trial. In this regard it may be regarded as laying down a more exacting requirement than the article 6.1 right to a fair and public hearing within a reasonable time. In Yagci and Sargin v Turkey (1995) 20 EHRR 505, para 50 the Court said:

Is Regulation 4(4) Incompatible?

86. The question whether the system which regulation 4 of the 1987 Regulations lays down for limiting the periods during which a person can be detained while in the custody of the magistrates' court is open to the criticism that it is arbitrary contrary to the right to liberty in article 5.1, or is incompatible with the article 5.3 right to trial within a reasonable time, must be examined in the context in which the regulation is intended to operate.

87. The primary means for controlling the detention of a person while he is in the custody of the magistrates' court are to be found in the provisions of the Bail Act 1976. The function of the 1987 Regulations made under section 22 of the Prosecution of Offences Act 1985 is to set maximum custody time limits. If a custody time limit expires before the completion of the stage of the proceedings in question, the accused must be granted bail. It is also open to the justices to grant bail at any time before the expiry of the time limit, bearing in mind that section 4(1) of the Bail Act 1976 gives a general right to bail except in certain specified circumstances: see Schedule 1 to that Act. Furthermore the accused, if remanded in custody, must be brought again before the magistrates' court to enable his case to be reviewed at regular intervals, as the general rule is that a magistrates' court may not remand a person for a period exceeding 8 clear days: Magistrates' Courts Act 1980, section 128(6). His detention is thus subject to judicial control in the magistrates' court throughout the period while he is in the custody of that court. Decisions which are taken in magistrates' courts are amenable to judicial review. And if a magistrates' courts decides to extend, or further extend, a custody time limit the accused may appeal against that decision to the Crown Court: Prosecution of Offences Act 1985, section 22(7).

88. The effect of these provisions can, I think, be summarised in this way. A person can only be detained in the custody of a magistrates' court while awaiting the completion of a preliminary stage of the proceedings under a procedure which has been laid down by statute, and the effect of regulation 4 of the 1987 Regulations is that any such detention is subject to strictly defined custody time limits. As to the complaint that this procedure is not precise or accessible because of the possibility of the substitution of fresh custody time limits, I would reject it. The provisions of the Bail Act 1976 and of the Magistrates' Courts Act 1980, as amended, deal with the procedure for remands in custody in considerable detail with a view to ensuring that every situation is provided for. It is a procedure which is prescribed by law. Detention under this procedure is lawful under domestic law, and it complies with the general requirements of the Convention. If a fresh custody time limit is to be substituted, the procedure under which this is to be done is laid down by statute and the regulation defines the length of the substituted time limit.

89. The complaint that the procedure is open to abuse as a result of decisions by the prosecutor which are arbitrary and may result in the person's detention for a time that is more than can be described as reasonable is, at first sight, a more substantial one. It is the case, as I have said, that regulation 4(4) has the effect that each offence which is charged in the magistrates' court attracts its own custody time limit. This aspect of the regulation has a legitimate purpose, which is to give sufficient time to the prosecutor to prepare the evidence relating to each offence for examination by the justices. Like any other procedure prescribed by law, it is vulnerable to abuse if it is used for improper purposes. But this is a matter which is subject to judicial control by the justices or the stipendiary magistrate. On the one hand it is open to the court, applying the approach which was indicated by Lord Bingham CJ in R v Burton on Trent Justices, Ex p Ashleigh-Nicholson [1998] COD 262, to hold that the new charge is simply a reproduction of the old charge with amendments which are minor or unimportant, and on this ground to refuse to accept that the new charge has given rise to a fresh custody time limit. On the other it is open to the court to refuse to inquire into the information relating to the new charge on the ground that to do so would be an abuse of the process of the court. That would not prevent the same charge being brought again in the Crown Court if the justices were to decide to commit the accused to the Crown Court for trial on the information relating to charges which are already before them. But it would prevent the substitution of a new custody time limit while the case remains in the magistrates' court.

90. Against that background I would hold that the fact that regulation 4(4) of the 1987 Regulations, construed according to the ordinary canons of construction in the manner which I favour, enables the accused to be subjected to a fresh time limit when a new offence is alleged against him does not give rise to an incompatibility either with article 5.1 or with article 5.3. I see no need therefore in this case to resort to the new rule of construction laid down by section 3(1) of the Human Rights Act 1998.

Abuse of Process

91. The question to which I now turn is the meaning to be given to the concept of abuse of process in the context of a complaint that the Crown has acted in the magistrates' court in a manner which conflicts with the purpose for which the custody time limit has been laid down in regulation 4(4) of the 1987 Regulations.

92. In my opinion the essence of abuse of process in the context of criminal proceedings is that the prosecutor has sought to take advantage of a procedural rule for a purpose which can be described as improper or as arbitrary. Difficulty has arisen because it has been suggested in some of the authorities that a complaint of abuse of process has to contain an allegation of bad faith. Before I discuss this issue I must first refer to the relevant authorities.

93. In R v Wirral District Magistrates' Court,Ex p Meikle (1990) 154 JP 1035 a fresh charge of theft was preferred against the accused, who had originally been charged with murder and conspiracy to blackmail, which had the effect of activating a fresh custody time limit. This was done by the Crown on the mistaken view that the existing custody time limit had expired. An application for judicial review was made on the ground that the applicant had been a victim of an abuse of the court's process. Watkins LJ said, at p 1040G-H, that it was accepted by counsel that there was no authority for the proposition that justices are entitled to reject a new charge merely because they regard that as a device to defeat their obligation to release an accused under the Regulations. He then said, at p 1041B:

mala fides

94. In R v Great Yarmouth Magistrates' Court, Ex p Thomas, Davis and Darlington [1992] Crim LR 116, 29 July 1991 the applicants, who had been charged with being knowingly concerned in the illegal importation of cannabis, were released from custody on the expiry of the custody time limit which the justices had refused to extend. They were then immediately re-arrested and charged with a fresh offence of possession of cannabis with intent to supply. An application for judicial review was made on the ground of abuse of process. When he was giving the court's reasons for remitting the case to the justices Watkins LJ said:

95. In R v Waltham Forest Justices, Ex p Lee (1992) 97 Cr App R 287 the applicants were charged with attempted murder and remanded in custody. The charge of attempted murder was later withdrawn and charges of offences against section 18 of the Offences against the Person Act 1861 were preferred in their place. The applicants indicated that in relation to these new charges they required the attendance at the committal proceedings of witnesses. A date was fixed for these proceedings which was outside the original custody time limit. The justices refused to extend that time limit. But they subsequently took the view that the section 18 offences attracted a new custody time limit and the applicants were remanded in custody. The main question which was raised in an application for judicial review was whether the justices were right in concluding that a new custody time limit started to run when the applicants were charged with the section 18 offences. Rose LJ said in regard to this matter, at p 292, that it seemed to him that, on the authorities and as a matter of principle, the regulations applied so as to permit the running of a new custody time limit from the date of preferment of charge of a new offence. He then said this:

Pill J said, at p 293:

96. In R v Wolverhampton Justices and Stafford Crown Court, Ex p Uppal (1994) 159 JP 86 the applicant was charged with rape. The prosecution decided that an additional charge of false imprisonment should be brought. This charge was included in a draft indictment which was served on the applicant's solicitors. The magistrate declined to extend the custody time limit on the rape charge. But when the case returned to the court the next day the applicant was charged with false imprisonment and the magistrate accepted that this had the effect of creating a new custody time limit. In the application for judicial review two arguments were advanced on behalf of the applicant. The first was that the charge of false imprisonment was not a new offence so as to create a new statutory time limit. The second was that the circumstances in which the charge of false imprisonment was preferred amounted to an abuse of process. The Divisional Court held that the false imprisonment charge was clearly a charge of a new offence which attracted a new custody time limit. Buxton J said, at p 92A, that, if there is a separate offence in law, then it attracts a separate custody time limit. He said, at p 92E:

However he went on to say, at p 92F-G:

The decision of the magistrate that there had been no abuse of process was however held to have been one which he was entitled to reach on the evidence.

97. I do not think that it can be doubted that, where dishonesty or mala fides can be established, that will be sufficient to show that there has been an abuse of process. But the concept of abuse of process is not to be confined to cases where there is proof of conscious dishonesty or of an improper motive of that kind. To the extent that the authorities to which I have referred may be taken as indicating the contrary, I would be inclined not to follow them. It seems to me that a broader and simpler test is, in this context, more appropriate. That would be more in keeping with the purpose of article 5(1) of the Convention, which is to protect the individual from arbitrariness when he is deprived of his liberty.

98. The true question, as Buxton J indicated in R v Wolverhampton Justices and Stafford Crown Court, Ex p Uppal (1994) 159 JP 86, is whether the new charge has been brought solely for the purpose of avoiding a custody time limit. The issue can best be tested by requiring the prosecutor to demonstrate why, on the facts of the case, the bringing of the new charge is necessary. If the necessity of bringing the new charge can be demonstrated, the substitution of a new custody time limit will follow according to the rules which regulation 4(4) has laid down. But if the prosecutor is unable to satisfy this test, it will be open to the court to infer that there is an abuse of process because the charge has been brought solely for the arbitrary and improper purpose of substituting a new custody time limit.

Answer to the Question

99. I would therefore answer the question of law which I set out at the outset of this judgment in these terms. The principle upon which regulation 4 proceeds is that each offence attracts its own custody time limit. But this principle is subject to two qualifications. First, the bringing of a new charge will not result in the replacement of the existing custody time limit by a fresh custody time limit if the offence in the new charge is simply a restatement of the old offence with different particulars. The offence charged must be a different offence in law if it is to attract a fresh custody time limit. Second, the bringing of a new charge will be an abuse of process if the bringing of that charge in the magistrates' court cannot be justified on the facts of the case by the prosecutor and the court is satisfied that it has been brought solely with a view to obtaining the substitution of a fresh custody time limit.

Conclusion

100. I agree with Divisional Court that on a proper construction of regulation 4(4) of the 1987 Regulations the preferring of the manslaughter charge in this case, where abuse of process is not alleged, resulted in the creation of a new custody time limit. While I recognise the concerns which Mitchell J expressed in his judgment about the measure of latitude which has been extended to prosecutors to charge new offences which may have the effect of prolonging the period of detention in custody, I do not consider that regulation in its present form is incompatible with article 5 of the Convention. Any revision of the system to meet these concerns must be a matter for Parliament. I would dismiss the appeal.

LORD CLYDE

My Lords,

101. This appeal concerns the construction of the terms of regulation 4(4) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 (SI 1987/299). Those Regulations have been subject to successive amendments and the version with which we are concerned includes the amendments made up to the Prosecution of Offences (Custody Time Limits)(Modification) Regulations 1998 (SI 1998/3037). Regulation 4(1) explains the scope of regulation 4 in these terms:

Regulation 4(4) provides:

102. The meaning to be given to the expression "the accused's first appearance" is prescribed in regulation 2(2). For present purposes it is sufficient to note that it states:

103. It is useful also to note the terms of the provision which empowered the making of the Regulations. This was section 22 of the Prosecution of Offences Act 1985. Section 22(1) provides:

(a) to be allowed to the prosecution to complete that stage; (b) during which the accused may, while awaiting completion of that stage, be - (i) in the custody of a magistrates' court; or (ii) in the custody of the Crown Court; in relation to that offence."

104. The scheme of these time limits is plainly based upon the identification of an offence. Moreover the scheme is looking to a particular offence. One can see that in the words in regulation 4(1) "to that offence", which refer to the earlier words "a person accused of an indictable offence". One can see it also in regulation 2(2) where again the reference to a person's first appearance "for an offence" is to be understood as referring to his first appearance "on an information charging him with that offence". So the scheme is one which proceeds upon an identification of the particular offence with which he was charged on the information whereby he first appeared or was brought before the court.

105. In the present case the appellant was brought before the court on 8 January 1999 on an information charging him with murder. On 19 March 1999 when the 70 day period in respect of his custody on the murder charge was about to expire, he appeared before the court for the first time on an information charging him with manslaughter. It is common ground that murder and manslaughter each constitute a distinct offence in the context of the Regulations. It follows from the wording of the Regulations that a new custody time limit then began to run in respect of the offence then charged. Bail was refused and the appellant remained in custody.

106. It seems to me that there is no evident ambiguity or lack of clarity in the wording of the regulation. The construction which I have given to it accords with the construction adopted in a succession of past cases, which have established a recognised and acceptable understanding of the provisions and one with which I would not lightly interfere. Moreover the contrast with the terms of regulation 5 seems to me significant. No doubt for sound reasons of practice and practicability the Regulations have made a clear distinction between the position in the magistrates' court and the Crown Court. In the latter express provision is made in the calculation of the time limit not only in relation to "that offence" but also in relation to any other offence included in the indictment. If it had been intended to build into the time limits the addition or substitution of other offences, that could have been done in terms corresponding with those used in regulation 5. But it is said that the result is unfair to the accused and indeed that it constitutes a breach of his rights under article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

107. I am not persuaded that the regulation as I have construed it is incompatible with article 5 of the Convention. The regulation is clear, precise and accessible. There are safeguards for the accused in the recognition by both parties that the court can intervene in the event of the prosecution acting in a way which would constitute an abuse of process. The regulation prescribes relatively short periods for the completion of the relevant stage of the proceedings and the court has a discretion whether or not an extension to the period is or is not to be allowed. Moreover the accused has remedies in law, including that of judicial review. Finally the whole scheme of the regulation has to be seen in the context of the Bail Act 1976 which gives, subject to certain exceptions, a general right to bail.

108. The appellant has sought to found upon the purpose of the Regulations and has argued for a purposive construction. The idea of a purposive construction is in a sense nothing new. It has long been recognised that in construing legislation one should endeavour to give effect to the intention of the legislator. But, as was noted a considerable time ago by Lord Diplock in Carter v Bradbeer [1975] 1 WLR 1204, 1207, there has been a trend away from a purely literal towards a purposive construction of statutory provisions. Essentially this trend marks a change from an insistence on a literalism which fails to give effect to the intention of the legislation. More particularly, through the influence of European community law greater attention has been paid to the idea of the purpose of the legislation in the domestic context. National courts are bound to comply with the objects and purposes of provisions of community law and where the matter is governed by community law domestic courts must where it is possible interpret national law in light of the purposes as well as the words of the community legislation [Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89) [1990] ECR 1-4135] An example of the practice of such an approach can be found in Litster v Forth Dry Dock & Engineering Co Ltd [1990] 1 AC 546. In the context of community law a strained interpretation is acceptable in order to secure a compliance with the law of Europe. The desire to avoid any conflict between a national measure and a Directive leads easily to a situation where the purpose may be preferred to a precise reading of the words. But in the present case we are not concerned with the application of European legislation and a strained interpretation cannot be justified on that ground. The resort to a strained approach, which may be seen as readily acceptable in the context of community law, is not so readily available in the purely domestic context, particularly if there is no ambiguity in the provision in question. While it may well be available as an approach to construction where there is no ambiguity, it is more difficult to apply it in domestic legislation where the words are clear. In such a case a clear understanding of the precise purpose of the legislation would be required.

109. In order to adopt a purposive construction it is, of course, essential to ascertain the purpose of the legislation. If the purpose cannot be ascertained, or there is doubt about the precise purpose, then the court can only look for some reasonable and sensible meaning from the words themselves. The purpose may be discovered from the legislation itself. It may on occasion be expressly set out in the legislation. Or it may be ascertained by the court from the substance of the legislation. But the interpretation cannot itself provide the purpose. The purpose must be identified first and then be applied in the process of interpretation.

110. In the present case the long title of the Prosecution of Offences Act 1985 includes the words "to provide for the imposition of time limits in relation to preliminary stages of criminal proceedings". That broad statement does not point to any precise purpose such as might have thrown light on the present problem. Behind the broad statement is obviously the purpose of putting limits upon the period of time which the prosecution may take in the course of the preliminary stages, and the period of time in which an accused has to wait, including a waiting in custody, for his trial. The more particular purpose of restricting the periods of custody lies behind the express empowering provisions in section 22 of the Act. Plainly the Regulations seek to achieve this purpose. But once the purpose has been identified, the way in which Parliament has chosen to achieve the purpose, by a scheme related to an offence, and the way in which accordingly the Regulations have been framed, is matter for Parliament and the executive. It is not for the court to ignore the method selected.

111. I certainly accept that the purpose includes the desirability of putting limits upon the permissible period of incarceration of an accused person in the course of the proceedings prior to committal and thereafter prior to trial and the corresponding desirability of requiring the prosecution to act with all due diligence and expedition. But I have not been persuaded that it is necessary in order to satisfy these purposes that any other construction of the Regulations has to be adopted than that which naturally follows from the clear wording. This seems to me to be a case where the purposive and the literal approaches arrive at the same result.

112. This is not a case where the solution is to be found by expanding the meaning given to a particular word, as was the position, for example, in Cutter v Eagle Star Insurance Co Ltd, Clarke v Kato [1998] 1 WLR 1647, or in Ex p Guardian Newspapers Ltd [1999] 1 WLR 2130. It is common ground that murder and manslaughter each constitute an "offence", and the problem raised in the present case cannot then be resolved by the suggestion that the "offence" is homicide. The argument starts from the recognition that the offence charged is the offence of murder. What the appellant has suggested is that in addition to the word "offence" one should add some phrase which would cover other offences which could be charged on the same information as that on which the earlier offence proceeded. That seems to me to be going beyond the legitimate scope of construction. It requires one to ignore the express word "that" which limits the identification of the offence and excludes other offences. It does not simply expand the meaning of the word "offence" itself, but makes a significant extension to the scope of the regulation by adding new words to it. This seems to me to be a matter of legislation, not of construction.

113. Furthermore it is not altogether certain what the substance of the suggested addition should be. It may be that it should encompass any offence which can be based upon the material in the information. It may be that it should comprise any offence of which the accused could be convicted on the charge in question. It may be that it should comprise any offence included in or amounting to the original offence. Various formulations of the proposed addition were proposed during the course of the argument and that very difference to my mind points to the absence of any clear need to adopt the kind of construction sought by the appellant. The court can correct obvious drafting errors by adding, or omitting or substituting words, as was done recently by this House in the case of Inco Europe Ltd v First Choice Distribution (a firm) [2000], I WLR 586, see Lord Nicholls of Birkenhead, at p 592, but this is not a case of an obvious drafting error. But even in that kind of case it is necessary to know the substance of the provisions which the legislator must have intended to express. In the present case even if the exact words are not essential the precise substance of the proposed extended meaning should be clear. There seems to me also to be force in the contention that at least some of the formulations proposed might well create difficulties in the application of the regulation in the magistrates' court. If a criterion was to be adopted by reference to the law relating to the alternative verdicts which may be permitted by statute or by the common law there might be room at least for debate before the magistrate particularly in relation to more complex cases than the reduction of murder to manslaughter. Even trial judges have erred in deciding whether a jury could or could not convict of a lesser charge (Archbold 2000 para 7-97).

114. The construction which I prefer does not require to be applied with a complete rigidity. As Lord Bingham of Cornhill CJ pointed out in R v Burton on Trent Justices, Ex p Ashleigh-Nicholson [1998] COD 262; 17 December 1997, the test to be applied is one of the substance of the charge rather than its form. An amendment to a charge of armed robbery which simply added one further item to the things which had been taken would not constitute a new offence. But a radical rewriting might in its substance constitute a new offence. Where there is a new offence in law it does not seem to me to be possible by a process of interpretation to treat it as the same as the offence earlier charged for the purpose of Regulation 4.

115. It was suggested that the proposed addition of the words is to be justified by section 3 of the Human Rights Act 1998. But if the Regulations are already compatible with the Convention, as I believe they are, then there is no need to adopt the ambitious construction which has been suggested. I should also record one area for dispute which may have to be resolved in the future, namely whether section 3 requires reading in or only reading down. The point is one on which different views have been expressed, for example by Richard A. Edwards on the one hand ("Reading down legislation under the Human Rights Act" Legal Studies Vol 20 No 3, September 2000) and Richard Clayton and Hugh Tomlinson (The Law of Human Rights, para 4.20) on the other. But there is no need to explore that issue in the present case.

116. Since preparing the foregoing I have had the opportunity of reading in draft the speech which has been prepared by my noble and learned friend Lord Hope of Craighead. I am in agreement with all that he has said and I do not believe that there is any difference between us in the views which have been expressed. I agree with him that the appeal should be dismissed.

LORD SCOTT OF FOSCOTE

My Lords,

117. On 20 July 1998 the appellant, Wardle, and two associates embarked on a violent burglary that went wrong. The victims of the burglary were Mr John Nutter and his sister-in-law who lived together at the address in Leeds where the burglary took place. In the course of the burglary they were roughly manhandled. Mr Nutter died. His sister-in-law suffered wounds. The medical evidence, stated in layman's terms, was that Mr Nutter died from a heart attack brought about by the manhandling he had been subjected to.

118. On 17 August 1998 the appellant was arrested on suspicion of having been involved in the incident but was released after interview without being formally charged. He was re-arrested on 5 January 1999 and charged with murder on 7 January. In the period between August 1998 and January 1999 the police had kept him under surveillance and had thereby obtained evidence, including video recordings, which they believed showed that he had participated in the burglary. The appellant made his first appearance in the magistrates' court on 8 January 1999, and was remanded in custody. The statutory 70 day custody time limit began to run from that date (see regulation 4(4) of the Prosecution of Offences (Custody Time Limits) Regulations 1987, as amended). The custody time limit was due to expire on 19 March 1999.

119. By 19 March the case was not in a state of readiness for the committal proceedings to commence. It appears that important evidence, including the evidence that the prosecution relied on as demonstrating that the appellant had been a participant in the burglary, had been supplied to the defence only shortly before 19 March. The defence needed more time to consider the evidence than a commencement of the committal hearing on 19 March would have allowed. It appears, also, that the evidence in question had been in the possession of the prosecution for some considerable time and ought to have been supplied to the defence much earlier.

120. Upon the expiry of a custody time limit an accused is normally entitled to be released on bail, unless some other custody time limit for some other offence is still unexpired (see section 4(8A), Bail Act 1976).

121. Section 22(3) of the Prosecution of Offences Act 1985, as originally enacted, conferred power on a magistrates' court to extend a custody time limit if satisfied "(a) that there is good and sufficient cause for doing so, and (b) that the prosecution has acted with all due expedition". In R v Manchester Crown Court, Ex p McDonald [1999] 1 WLR 841 it was held that the court could extend a custody time limit only if both those criteria were satisfied. Lord Bingham of Cornhill CJ giving the judgment of the court, said, at p 847: "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". Under an amendment made to section 22(3) by the Crime and Disorder Act 1998, the criteria that had to be satisfied for an extension to be granted were modified. A particular change was that, in place of the original (b), the court, in order to extend a custody time limit, had to be satisfied "that the prosecution [had] acted with all due diligence and expedition". This amendment did not come in to effect until 1 June 1999.

122. When the appellant was brought before the Leeds Magistrates' Court on 19 March 1999, the prosecution preferred a charge of manslaughter against him, in substitution for the original charge of murder. The defence had been notified on 10 March that this would be done. The prosecution gave as their reason for making this change that additional medical evidence had been received from their pathologist, Dr Milroy, on 4 March and had shown that the case against the appellant should be pursued as one of manslaughter rather than murder. There was, however, no material difference between Dr Milroy's report of 4 March and the reports he had earlier made in October and November 1998. He had consistently attributed Mr Nutter's death to heart failure brought about by the manhandling suffered in the course of the burglary and the stress thereby caused.

123. The prosecution contended that the charge of manslaughter, being a charge of a new offence, attracted a fresh 70 day custody time limit commencing on 19 March 1999, the date on which the appellant first appeared before the magistrates' court on that offence. No doubt in well-founded anticipation that the defence would contest that that was so, the prosecution applied for an extension of the original custody time limit.

124. The magistrate granted the extension but also expressed himself as satisfied that in any event a new 70 day period had been attracted by the manslaughter charge.

125. The appellant appealed to the Crown Court. The appeal was heard by Judge Hoffman on 22 March 1999. He disagreed with the magistrate on the extension. He said:

But, on the question whether the substitution of manslaughter for murder had caused a new 70 day custody time limit to run, he agreed with the magistrate. He held that manslaughter was a new and distinct offence which attracted its own custody time limit. He considered, also, whether the substitution had been made in bad faith for an improper motive, namely for the purpose of preventing the release of the appellant from custody on the expiry of the original custody time limit. As to that, there seems to have been no evidence before the court from anyone on the prosecution side explaining the reasons why the manslaughter charge had been substituted and what, if any, part the imminent expiry of the original 70 day period had played. It was counsel appearing for the prosecution who attributed the change to the contents of the medical report of 4 March. But that seems an insubstantial reason since it appears to have been common ground that there was nothing significant in that report that had not been in the earlier reports. Be that as it may, and notwithstanding the absence of any evidence from the prosecution as to its reasons, the judge expressed himself as satisfied that there was nothing from which bad faith on the prosecution's part could be implied. What the consequence would have been if bad faith had been found is not clear and is something to which I shall have to return.

126. The appellant sought to challenge, by way of judicial review, Judge Hoffman's decision. The Divisional Court, on 26 April 1999, gave leave but dismissed the substantive application. The judgment was given by Mitchell J with whose judgment Kennedy LJ agreed. Mitchell J reviewed a number of authorities and concluded, as had Judge Hoffman, that the preferring of the manslaughter charge had attracted a new custody time limit. As to the prosecution's reasons for introducing the manslaughter charge, Mitchell J said:

and

127. Kennedy LJ expressly associated himself with the sentiments expressed by Mitchell J in the passages I have cited.

128. I share the concern expressed by Mitchell J and Kennedy LJ. The legislative intention which led to section 22 of the Prosecution of Offences Act 1985 and the Regulations made thereunder seems to me quite clear. It is to provide a maximum period during which an accused can be held in custody awaiting trial. Extensions of that period are strictly controlled and can be allowed only if the prosecution can show that it has acted with all due diligence and expedition (see section 22(3)(b) as originally enacted and as amended). If, in the period following an accused's first appearance before the magistrates, new facts emerge which the prosecution need to consider and which may lead to the formulation of a new charge against the accused, I find no difficulty in accepting that an extension of the original 70 day custody time limit may be necessary. And a statutory scheme which allows a further 70 days from the accused's first appearance before the magistrates on a new charge based at least to more than a trivial extent on new facts is not necessarily inconsistent with the legislative intention to which I have referred. But where the new charge is based not on any new facts but on the facts on which the original charge was based, and is simply a lesser charge than that originally preferred, the proposition that the preferment of the new charge attracts a new 70 day custody time limit seems to me to be one that defeats the legislative intention.

129. In the present case the prosecution did not act with all due diligence and expedition. Judge Hoffman so found and refused the application for an extension. It has not been suggested that he was in error. And yet, by introducing the manslaughter charge on the day of expiry of the original custody time limit, the prosecution procured a further 70 days during which the appellant could be kept in custody. It is, of course, true that it was open to the appellant on 19 March to make an application for bail, and indeed he did so. But the new custody time limit defeated his absolute right to the grant of bail under section 4(8A) of the Bail Act 1976 and his bail application was, in the event, refused.

130. If the committal hearing had taken place on 19 March, as it would have done if the prosecution had not failed to act with all due diligence and expedition, the prosecution could at the same time have substituted the manslaughter charge for the murder charge and the appellant would have been committed to the Crown Court for trial on the manslaughter charge. If the proceedings had taken that course, the period during which he would have been in custody before the committal would not have exceeded the original 70 days.

131. On this appeal, the critical question for your Lordships, in my opinion, is whether there is a permissible application of section 22 and regulation 4 of the 1987 Regulations that would prevent, in a case such as this, the substituted charge from attracting a fresh 70 day custody time limit. There is no doubt, I believe, that if that result can be reached it ought to be reached.

132. This conclusion is fortified by the impact in a case such as the present of the Convention rights to be found in article 5 of the European Convention and of section 3 of the Human Rights Act 1998. Section 3(1) requires primary and subordinate legislation "so far as it is possible to do so …. [to] be read and given effect in a way which is compatible with the Convention rights". The words "and given effect" are of significance. Section 3(1) is directed to the effect of legislation as well as to its construction. One of the Convention rights to be found in article 5 is "the right to liberty and security of person" (article 5.1). The article goes on to provide for exceptions:

133. One of the "cases" relates to the detention pending trial of a person suspected of having committed an offence (para (c)).

134. In Bozano v France [1986] 9 EHRR 297 the Strasbourg Court said that "any measure depriving the individual of his liberty must be compatible with the purpose of article 5, namely to protect the individual from arbitrariness" (p 313). The same point was made in Brogan v United Kingdom [1988] 11 EHRR 117 at p 134: "[article 5] enshrines a fundamental human right, namely the protection of the individual against arbitrary interferences by the State with his right to liberty," and in Amuur v France [1996] 22 EHRR 533, at p 559: "any deprivation of liberty should be in keeping with the purpose of article 5, namely to protect the individual from arbitrariness."

135. A construction and application of section 22(1) of the 1985 Act and regulation 4(4) of the 1987 Regulations that enable the prosecution, by preferring a new charge, to withhold from the accused the release from custody to which he would otherwise have been entitled, in a case where there were no new facts and the new charge was and always had been comprehended within the original charge, would subject the accused to arbitrariness. Section 3(1) of the 1998 Act requires your Lordships, if it is possible to do so, to avoid allowing section 22(1) and regulation 4 to produce that result.

Section 22(1) empowers the Secretary of State:

(iii)

136. The "provision" referred to by section 22(1) is made by the 1987 Regulations. Regulation 4 makes the "provision" regarding custody time limits in magistrates' courts.

Paragraph (1) provides:

137. Paragraph (4) of regulation 4 deals specifically with offences triable on indictment exclusively. This, therefore, is the particular provision that applied in the present case. It provides:

The expression "first appearance" is defined in regulation 2(2):

138. Regulations 2(2)(c) and 4(4), literally construed, and subject to abuse of process if it be shown to have been present, make it impossible, in my opinion, to resist the conclusion that a new 70 day custody time began on 19 March when the appellant first appeared in court on the manslaughter charge. Manslaughter may be comprehended within a murder charge but it is, nonetheless, a separate offence. If murder by striking the victim with an axe or a bludgeon is charged, it must follow that the alleged acts that constitute the offence would include the facts necessary to constitute also, apart from manslaughter, the offence of unlawful wounding. But no one would describe unlawful wounding as the same offence as murder, or, for that matter, as manslaughter. Each is a separate offence albeit that the facts alleged to constitute the most serious of them, i.e. murder, would include the facts necessary to constitute each of the others.

139. If, for the purposes of regulation 2(2)(c), the relevant offence is the offence of manslaughter, the reference in the opening sentence to "an offence" is a reference to the offence of manslaughter and the words "that offence" at the end of paragraph (c) must also be read as a reference to manslaughter. On that footing, for the purposes of regulation 4(4), the appellant's "first appearance" in relation to the offence of manslaughter was 19 March 1999 and a 70 day custody time limit began on that date. There is, in my opinion, no literal construction that can avoid this result.

140. So could a purposive construction and purposive application of section 22 and regulation 4(4) do so? In the debate before your Lordships various suggestions were made as to words that might be added to, or substituted for, words in regulation 2(2) and in regulation 4(4) in order to produce a result that accorded with the legislative intention.

141. Mr. MacDonald QC, counsel for the appellant, suggested that the words "that offence" in regulation 4(1) and in regulation 2(2)(c) could be expanded so as to read "that offence or any other offence arising out of the same facts". An alternative formulation might be "that offence or any other offence arising out of the allegations in the information or charge". A number of difficulties arise out of these suggested formulations. The expression "the same facts" prompts the question "The same facts as what facts?". The facts as known on the date of the original charge? Or the facts as known by some subsequent, and if so, what, date? Or the facts comprised in the information or charge? As to the information or charge, the contents may be of the sketchiest character at the time the accused makes his first appearance. A third suggested formulation, namely, "that offence or any offence for which the magistrates could commit the accused for trial" seems to me now, although I believe I suggested it, equally unsatisfactory. Under section 6(1) of the Magistrates' Courts Act 1980, magistrates can commit an accused for trial in the Crown Court on any indictable offence disclosed by the evidence before them. The offence does not have to be that with which the accused was originally charged and may depend on new facts which have emerged since the accused's first appearance before the magistrates.

142. The difficulties which these alternative formulations would be likely to give rise to have led me to conclude that the problem posed by the present case cannot be satisfactorily solved by a purposive reformulation of the statutory language to be found in regulation 4. I believe, however, that it could be solved by a judicial limitation on the effect to be given to regulation 4 in the case of a new charge.

143. In my opinion, it is open to your Lordships to rule that if an accused, having appeared or been brought before a magistrates' court on an information charging him with an offence, is then charged with a new offence of which he might, if tried on the original offence, have been convicted (see section 6 (2), (3) and (4), Criminal Law Act 1967), a new custody time limit will not be attracted by the new offence and the accused's "first appearance" in relation to the new offence will be the date on which he first appeared or was brought before the magistrates' court on the information or charge relating to the original offence.

144. If the addition, or substitution, of the new offence has the consequence that the prosecution is not ready to proceed with the committal hearing within the original 70 day custody time limit, it is always open to the prosecution to apply for an extension. Whether the prosecution would obtain an extension would depend on their showing they had acted "with all due diligence and expedition". The end result would thus be in accordance with the legislative intention.

145. This result can be produced by giving a purposive effect to the statutory provisions notwithstanding that a satisfactory grammatical reformulation of the provisions may not be possible. There is authority from your Lordships' House that this is a permissible technique of statutory interpretation.

146. R v Schildkamp [1971] AC 1 raised a point about section 332(3) of the Companies Act 1948. Schildkamp had been charged with a number of offences in connection with the conduct of the business of a company. One of the offences charged was "carrying on the business of a company with intent to defraud creditors contrary to section 332(3) of the Companies Act 1948". Schildkamp was convicted on this charge. He appealed on the ground, among others, that the company in question, Fiesta Tours Ltd, had never been wound up and that before a prosecution could be initiated for fraudulent trading under section 332(3) the company had to be in liquidation. The Court of Appeal (Criminal Division) agreed and allowed the appeal but certified that a point of law of general public importance was involved, namely, "what, if any, words of limitation must be imported in subsection (3) of section 332 of the Companies Act 1948?" The appeal to your Lordships' House was dismissed. Lord Guest and Viscount Dilhorne, dissenting, took the view that since the words of subsection (3) were clear and unambiguous they should be given effect to without speculating about Parliament's intentions. Lord Upjohn, however, while accepting that "The subsection plainly applies as a matter of language to the case where there has been no subsequent winding up" (p 22), emphasised:

147. So Lord Upjohn examined the whole of the 1948 Act and took into account its legislative history and concluded that it was not Parliament's intention that subsection (3) should be of general application while the company was a going concern. He then said, at p 25:

148. The reasons to which Lord Upjohn referred were, in short, that since it was clear that Parliament had not intended subsection (3) to apply to cases where the company had not gone into liquidation, the court could, and should, simply limit the application of the subsection accordingly. The following passage is in point:

149. Lord Upjohn found support for his approach in a Scottish case, Robertson and Baxter v Inglis (1897) 24 R 758, in which the scope of section 3 of the Factors Act 1889 had had to be considered. The question was whether section 3, which stated that a pledge of documents of title to goods should be deemed to be a pledge of the goods, was of general application or was limited to dealings by mercantile agents. The Inner House held that it was so limited. Lord Upjohn commented on the case:

150. Lord Reid expressed his agreement with Lord Upjohn. Lord Hodson came to the same conclusion. He, too, found support from Inglis v Robertson and Baxter. He said, at p 12:

.

151. R v Schildkamp shows that where in order to give effect to Parliament's intention it is necessary to restrict the effect of a statutory provision, it is not a necessary pre-condition that a suitable reformulation of the provision be devised, nor is it necessarily fatal that the statutory provision is clear and unambiguous. It is, of course, essential that Parliament's intention should be clear.

152. The facts of the present case have, in my opinion, demonstrated that Parliament's intention that there should be a maximum period during which an accused can be kept in custody pending a committal hearing will be frustrated if it is open to the prosecution, by charging a lesser offence, of which the accused was already at risk under the originally charged offence, to produce a fresh custody time limit. A purposive application of regulation 4(4), and regulation 2(2)(c), to cases where new offences of that character are charged would enable Parliament's intention to be achieved.

I would, therefore, allow the appeal.

153. In concluding, I wish to say a word or two about abuse of process. Your Lordships have been referred to a number of cases in which consideration has been given to the consequences for custody time limits if a new charge is preferred against an accused for an improper purpose.

154. In

155. In R v Wirral District Magistrates' Court, Ex p Meikle (1990) 154 JP 1035 new offences had been charged but mala fides on the part of the prosecution in preferring the new charges had not been alleged. Nonetheless it was argued for the accused that the new charges were a procedural device designed to circumvent the custody time limit Regulations and an abuse of process. Watkins LJ would have none of it. He said, at p 1041:

,

In R v Great Yarmouth Magistrates, Ex p Thomas, Davis and Darlington, [1992] Crim LR 116; 29 July 1991, Watkins LJ reiterated his view that dishonesty or mala fides in preferring the new charges would have to be shown if abuse of process were to be made out. He said, however, that if abuse of process were made out the court would have "no alternative but to admit these people to bail" (p 5 of the transcript).

155. In my opinion, the requirement of dishonesty or mala fides distracts attention from the true requirements if an allegation of abuse of process is to be made out. The concept of abuse of process is no different in criminal cases from the like concept in civil cases. It involves a use of court process for a purpose other than that for which the purpose in question was intended. It is in that sense that one may speak of some procedural step being taken for an improper purpose and, therefore, constituting an abuse of process. The procedural step will often be accompanied by bad faith or dishonesty — in that a legitimate purpose, not being the true purpose, may be put forward as the true purpose. But bad faith or dishonesty are not essential. What is essential is that court process has been used for some ulterior purpose.

156. There will be difficulty where the purpose is mixed. The present case may well be an example. There was every reason, it being clear that the known facts did not support a murder charge but only manslaughter, for the withdrawal of the former and the substitution of the latter as soon as practicable. But the timing of the substitution suggests very strongly, to my mind, that it was done in order to forestall the automatic release of the appellant from custody. There was no evidence at all from the prosecution as to its reasons for formally substituting manslaughter for murder on 19 March. The prosecution could simply have informed the defence that the murder charge would not be proceeded with and that they would be seeking a committal on manslaughter. In my opinion, however, if a step in litigation is taken for a legitimate reason, whether or not it is also taken for an illegitimate one, the step cannot be categorised as an abuse of process. The legitimate reason must, of course, be more than merely makeweight or trivial. If abuse of process can be shown, the procedural step taken should, strictly, be regarded as a nullity. This was a point made more than once in the course of the hearing of the appeal by my noble and learned friend, Lord Nicholls of Birkenhead. It is, in my respectful opinion, unanswerable and obviously right. If a new charge is preferred, not with any genuine intention that the accused should be tried on that charge, but simply in order to attract a new custody time limit, the preferring of the new charge is an abuse of process and the new charge should be struck out as soon as that has become apparent.

157. If there is a genuine intention that the new charge should be proceeded with to trial and it is simply the timing of the new charge that appears to be motivated by an intention to avoid the consequences of the expiry of the original custody time limit, the court cannot, in my opinion, strike out the new charge as an abuse of process. But the circumstances in which the substitution of the new charge took place can, and should, in my opinion, be taken into account in considering whether the accused should be released on bail. This, in my view, is what Watkins LJ had in mind in the remark he made about bail in the Ex p Thomas, Davis and Darlington case.

158. If I am right in the present case that the substituted charge of manslaughter should not have been treated as giving rise to a fresh custody time limit, the abuse of process point does not arise. If I am wrong, however, and I understand a majority of your Lordships to take a different view on that point, this was not a case in which the manslaughter charge could have been set aside on abuse of process grounds. However, it was a case in which, on the bail application made to Judge Hoffman, the circumstances in which the substituted charge was preferred should have been taken into account. The fact that the prosecution had failed to act with all due diligence and expedition was relevant. So was the fact that there was nothing new which explained why the substitution was being made when it was made. The judge should, in my view, have inferred that a substantial reason for the change was that the prosecution wanted to avoid the custody time limit consequences of their own dilatoriness. A decision to award bail in those circumstances would have reflected Parliament's intention in introducing the custody time limit statutory provisions.

159. But my Lords, for the reasons already expressed, I would allow the appeal.