R (Gibson and Another) v Winchester Crown Court
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR JUSTICE ROYCE |
| Judgment Date | 24 February 2004 |
| Neutral Citation | [2004] EWHC 361 (Admin) |
| Docket Number | CO/0682/2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 February 2004 |
[2004] EWHC 361 (Admin)
The Lord Chief Justice Of England And Wales
(The Lord Woolf Of Barnes)
The Vice-president Of The Court Of Appeal Criminal Division
(Lord Justice Rose) and
Mr Justice Royce
CO/0682/2004
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
The Strand London
APPEARANCES:
MR JOHN LOFTHOUSE (instructed by Messrs Peach Grey & Co, Southampton SO15 2FE) appeared on behalf of THE CLAIMANT LESLIE GORDON GIBSON
MR JAMES LEONARD (instructed by Messrs Sharman & Co, Southampton SO15 2EA) appeared on behalf of THE CLAIMANT DAVID GIBSON
MR ANTHONY HACKING QC (instructed by Crown Prosecution Service Hampshire) appeared on behalf of THE CROWN PROSECUTION SERVICE (THE FIRST INTERESTED PARTY)
MR DAVID PERRY (instructed by the Treasury Solicitor) appeared on behalf of THE DEPARTMENT FOR CONSTITUTIONAL AFFAIRS (THE SECOND INTERESTED PARTY)
Tuesday 24 February 2004
So as to avoid defendants being held in custody for unnecessarily long periods of time Parliament enacted legislation limiting time that defendants may be kept in custody ("custody time limits"). However, the legislation gave the court power to extend those limits. That power is the subject to review by this Court. Thus the present cases have been heard to day.
The ability of the court to extend time is of importance to defendants. It is also important to the administration of justice and it is important to the public. There have already been a great number of decisions review the power of the court to extend time. However this application for judicial review makes it clear that there is need for further clarification. In the hope that that clarification should be provided by the judgments given today, this court has been specially constituted. It consists of the Vice-President of the Court of Appeal, Criminal Division, Royce J and myself. Our consideration of the present cases should not however be treated as an encouragement for further attempts to obtain clarification as to the extent of the courts' discretion to extend custody time limits. Decisions as to custody time limits are closely related to the listing of the trials and the listing of trials is a judicial function the resident judge and the presiding judges of the relevant area have responsibility.
The Facts
The facts giving rise to the present proceedings are as follows. The claimant, Leslie Gordon Gibson, and his son David, who is now also a claimant, are charged with the murder of David's wife, Belinda in February 2002. No body or trace of a body has been found. There is no witness who has seen a body or witnessed the alleged murder. The murder trial is now fixed for 9 June 2004 before a High Court judge. It is accepted that it is a case which requires the attention of a High Court judge and the number of High Court judges is limited.
The claimants were first arrested on 9 May 2002. The were given bail. They were interviewed a number of times. On 13 May 2003 they were both charged with murder. They have been in custody ever since. The plea and directions hearing was held on 14 July 2003. On 5 November 2003 the prosecution applied to extend the custody time limit for each claimant, otherwise the limit would have expired at midnight on 11 November 2003. Earlier that day His Honour Judge Brodrick, the resident judge at the Crown Court at Winchester, extended the custody time limit under section 22(3) of the Prosecution of Offences Act 1985 until 10 June 2004. It is to be noted that, notwithstanding that extension, it will be within a year and month of the claimants being arrested and charged with murder that the trial will commence.
In extending the time for the custody time limit until 10 June 2004, the judge granted an extension of 211 days, or one month more than the statutory custody time limit, which is 182 days. As the judge indicated, the effect of the extension will be to double the statutory time limit and then add a month. That must be a matter of very grave concern.
In giving his reasons for permitting that extension the judge referred to the fact that Court No 1 in Winchester, which is the place where the trial is due to take place, had been occupied for the best part of a year with a complex fraud case which was transferred there from Bournemouth. The defendant in that case could not properly be tried at Bournemouth because he was too well known. The judge also referred to the fact that in November 2003 there were 30 outstanding murders and 40 outstanding rape or child sex cases. He added:
"…. this court has not simply sat back and allowed the outstanding murder and other cases to get completely out of control. We have done our best with the limited resources available, and we have endeavoured to try to keep matters within bounds, not, I am bound to say, entirely successfully, but that is not entirely surprising when you lose a court for the length of time that I have lost Court 1."
Judge Brodrick as the resident judge at Winchester Crown Court is very familiar with the conditions which apply with regard to arranging the lists at that court for which he has overall responsibility subject to the supervision of the Presiding judges of the Western Circuit. It is also right, as Mr Lighthouse who appeared on behalf of Leslie Gibson has stressed, that the judge exercised great care in dealing with the application before him. His ruling is expressed with considerable clarity and deals with the issues with remarkable skill, bearing in mind that it was given immediately after the hearing.
The conclusion to which the judge came was that the prosecution had not acted with all due diligence and expedition, but that that failure on their part had no causative effect. However, in accordance with the statutory provisions, there was good and sufficient cause to grant the extension to which I have referred.
The Law
The statutory provisions which the judge had to apply have been amended. They have been amended so as to provide specific examples of what constitutes a good and sufficient cause. The Prosecution of Offences Act 1985 empowered the Secretary of State to make provision by regulations. The terms of the power which is conferred on the Secretary of State are very broad. They are the subject of specific arguments to which I will need to refer hereafter.
The amendments which have been made to the Prosecution of Offences Act 1985 were first the result of section 71 of the Criminal Procedure and Investigations Act 1996; and secondly of section 43 of the Crime and Disorder Act 1998. As originally enacted, section 22(3), which is the critical subsection, was in the following terms:
"The appropriate court may, at any time before the expiry of a time limit imposed by the regulations, extend or further extend, that time 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." (my emphasis)
The Crime and Disorder Act's amendment resulted in section 22(3) now providing:
"The appropriate court may, at any time before the expiry of a time limit imposed by the regulations extend, or further extend, that limit; but the court shall not do so unless it is satisfied:
(a) that the need for the extension is due to —
(i)the illness or absence of the accused, a necessary witness, a judge or a magistrate;
(ii)a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more accused or two or more separate offences; or
(iii)some other good and sufficient cause; and
(b) that the prosecution has acted with all due diligence and expedition." (my emphasis).
The amendments do not materially effect the working of the provision but (i) and (ii) do clarify the type of matters that can be "good and sufficient cause" but they do not cut down the ambit of (iii) as the word "other" makes clear.
10. The appropriate time limit in respect of the claimants was 182 days. If the time limit is exceeded without being extended, the consequence is that a defendant is entitled to bail, subject to section 25 of the Criminal Justice and Public Order Act 1994. That makes an exception in the cases of murder or rape, after a previous conviction for such an offence. The court is not able to require sureties or any deposit or security, and, following the grant of bail, the accused may not be arrested without a warrant merely on the ground that the police officer believes that he is unlikely to surrender to custody. However, it is open to the court granting bail to impose conditions as to curfew, residence or reporting to a police station etc. The rule is that actual or feared breach of such conditions is a ground for arrest without a warrant applies to an accused bailed on the expiry of a time limit, just as it applies to an accused granted bail in other circumstances.
11. A leading case in respect of custody time limits and the philosophy behind custody time limits is the decision of this court in R v Manchester Crown Court, ex parte McDonald and Others [1999] 1 WLR 841, [1999] 1 Cr App R 409. That court (Lord Bingham CJ and Collins J) looked into the provisions as to custody time limits in some detail. In the course of giving the judgment of the court Lord Bingham indicated that the Act and regulations have three overriding purposes:
(1) to ensure that the periods for which unconvicted defendants are held in custody awaiting trial are as short as reasonably...
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