Olotu v Secretary of State for the Home Department and Another
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LORD JUSTICE AULD,LORD JUSTICE MUMMERY |
| Judgment Date | 29 November 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J1129-8 |
| Docket Number | QBENI 96/0581/E |
| Court | Court of Appeal (Civil Division) |
| Date | 29 November 1996 |
[1996] EWCA Civ J1129-8
The Lord Chief Justice of England
(Lord Bingham of Cornhill)
Lord Justice Auld
and
Lord Justice Mummery
QBENI 96/0581/E
QBENI 96/0697/E
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MISS B DOHMANN QC)
Royal Courts of Justice
The Strand
London
MR STEPHEN RICHARDS (instructed by the Treasury Solicitor) appeared on behalf of THE DEFENDANTS
MR NICHOLAS BLAKE QC and MR TIM OWEN (instructed by Messrs Bobbetts Mackan, Bristol) appeared on behalf of THE PLAINTIFF
Friday 29 November 1996
The plaintiff in this action was arrested on 6 February 1994, charged with criminal offences the following day and on 25 April 1994 committed in custody by the magistrates' court for trial in the Crown Court. She was held at HM Prison Pucklechurch from the date of committal until her release on 3 November 1994, a period of 193 days. She contends that the last 81 days of this period of detention were unlawful, being in excess of the time limit of 112 days between committal and arraignment prescribed by Regulation 5(3)(a) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 as amended. She also contends that the Crown Prosecution Service wrongfully failed, in breach of the duty imposed on them by Regulation 6(1) of those Regulations, to bring her before the Court so that she might be admitted to bail.
In November 1995 the plaintiff issued proceedings. She sued the Home Office, as the department responsible for prisons, claiming damages (including exemplary damages) for false imprisonment. She sued the CPS claiming damages (including exemplary damages) for breach of statutory duty. Both defendants applied to strike out the claim against them under RSC Order 18 rule 19 as disclosing no reasonable cause of action. On 29 April 1996 Miss Barbara Dohmann QC, sitting as a deputy judge of the Queen's Bench Division, ordered that the plaintiff's claim against the Home Office be struck out but she dismissed the application to strike out made by the CPS. The plaintiff appeals against the first of these orders, the CPS against the second, in each case with the leave of the deputy judge. The question for us is whether, on the facts stated, the plaintiff's claim against each defendant is so obviously unsustainable in law as to make it proper to strike out the claim at this preliminary stage. The plaintiff's claims against the two defendants are independent of each other, and do not stand or fall together. No separate issue arises at this stage on the plaintiff's claims to exemplary damages.
THE RELEVANT STATUTORY PROVISIONS
Section 6(3) of the Magistrates' Courts Act 1980 provides:
"Subject to section 4 of the Bail Act 1976 and section 41 below, the court may commit a person for trial—
(a) in custody, that is to say, by committing him to custody there to be safely kept until delivered in due course of law …"
Subsection (4) of the same section reads:
"Where the court has committed a person to custody in accordance with paragraph (a) of subsection (3) above, then, if that person is in custody for no other cause, the court may, at any time before his first appearance before the Crown Court, grant him bail in accordance with the Bail Act 1976 subject to a duty to appear before the Crown Court for trial."
The Prosecution of Offences Act 1985 provides, in section 22, as follows:
"(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 —
(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."
Subsection (2) specified some matters to which the regulations might in particular apply. These included the procedure to be followed in criminal proceedings in consequence of any other provision of the regulations. Subsection (3) provided:
"The appropriate court may, at any time before the expiry of a time limit imposed by the regulations, extend, or further extend, that limit if it is satisfied—
(a) that there is good and sufficient cause for doing so; and
(b) that the prosecution has acted with all due expedition".
Subsection (11) contained a number of definitions. Where an accused has been committed for trial, "the appropriate court" in subsection (3) means the Crown Court. The "custody of the Crown Court" includes custody to which a person has been committed in pursuance of section 6 of the Magistrates' Courts Act 1980. "Custody time limit" is defined to mean a time limit imposed by regulations made under subsection (1)(b) of section 22 or, where any such limit has been extended by a court under subsection (3), the limit as so extended. "Preliminary stage", in relation to any proceedings, is defined so as not to include any stage of the proceedings after the accused has been arraigned in the Crown Court.
The Secretary of State exercised his power to make regulations under section 22(1)(b) of the 1985 Act by making the Prosecution of Offences (Custody Time Limits) Regulations 1987, which were amended in 1988, 1989 (twice) and 1991. The following provisions of these regulations are relevant for present purposes.
Regulation 5 provides:
"(2) Where—
(a) a person accused of an indictable offence other than treason is committed to the Crown Court for trial; ….
The maximum period during which he may be in the custody of the Crown Court in relation to that offence, or any other offence included in the indictment preferred against him, while awaiting the preliminary stage of the proceedings specified in the following provisions of this Regulation shall be as stated in those provisions.
(3) The maximum period of custody—
(a) between the time when the accused is committed for trial and his arraignment; ….
shall, subject to the following provisions of this Regulation, be 112 days".
Regulation 6, so far as relevant, provides:
"(1) Subject to the following provisions of this Regulation where an accused who is in custody pending trial in the Crown Court has the benefit of a custody time limit under Regulation 5 above the prosecution shall —
(a) not less than 5 days before the expiry of the time limit give notice in writing to the appropriate officer of the Crown Court and to the accused or his representative stating whether or not it intends to ask the Crown Court to impose conditions on the grant of bail in respect of the accused and, if it intends to do so, the nature of the conditions to be sought; and
(b) make arrangements for the accused to be brought before the Crown Court within the period of 2 days preceding the expiry of the time limit.
….
(3) The prosecution need not comply with paragraph (1)(a) above if it has given notice under Regulation 7(2) below of its intention to make an application under section 22(3) of the 1985 Act.
(4) On receiving notice under paragraph (1)(a) above stating that the prosecution intends to ask the Crown Court to impose conditions on the grant of bail, the accused or his representative shall—
(a) give notice in writing to the appropriate officer of the Crown Court and to the prosecution that the accused wishes to be represented at the hearing of the application; or
(b) give notice in writing to the appropriate officer and to the prosecution stating that the accused does not oppose the application; or
(c) give to the appropriate officer, for the consideration of the Crown Court, a written statement of the accused's reasons for opposing the application, at the same time sending a copy of the statement to the prosecution.
….
(6) The Crown Court, on being notified that an accused who is in custody pending trial there has the benefit of a custody time limit under Regulation 5 above and that the time limit is about to expire, shall grant him bail in accordance with the Bail Act 1976, as from the expiry of the time limit, subject to a duty to appear before the Crown Court for trial."
Regulation 7, so far as relevant, provided:
"(1) An application to a court for the extension or further extension of a custody time limit under section 22(3) of the 1985 Act may be made orally or in writing.
(2) Subject to paragraphs (3) and (4) below the prosecution shall—
(a) not less than 5 days before making such an application in the Crown Court; and
(b) not less than 2 days before making such an application in a magistrates' court,
give notice in writing to the accused or his representative and to the proper officer of the court stating that it intends to make such an application."
Regulation 8 provides that the Bail Act 1976 shall apply subject to certain modifications in cases to which a custody time limit applies.
Section 1(6) of the Bail Act 1976 provides that:
"Bail in criminal proceedings shall be granted (and in particular shall be granted unconditionally or conditionally) in accordance with this Act."
Where a custody time limit has expired section 3 of the Bail Act has effect as if subsections (4) and (5), dealing with sureties and security for the surrender of the defendant, were omitted. In that situation subsection (6) provides that:
"He [a person granted bail in criminal proceedings] may be required (but only by a court) to comply, after release on bail, with such requirements as appear to the court to be necessary to secure that—
(a) he surrenders to custody,…" etc.
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