R (on the application of Raeside) v Luton Crown Court
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 23 April 2012 |
| Neutral Citation | [2012] EWHC 1064 (Admin) |
| Docket Number | Case No: CO/3733/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 April 2012 |
[2012] EWHC 1064 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
President of the Queen's Bench Division
and
Mr Justice Burnett
Case No: CO/3733/2012
Mr Tim Forte (instructed by Gordon Young LLP) for the Claimant
The Defendant did not appear and was not represented
Ms Maryam Syed (instructed by Crown Prosecution Service Appeals Unit) for the Interested Party
Hearing date: 20 April 2012
This is the judgment of the court in a rolled up application for judicial review of the decision of the Luton Crown Court made on 3 April 2012 to extend Custody Time Limits (CTL) under s. 22(3) of the Prosecution of Offences Act 1985 until 4 May 2012. The application raised two issues of practice.
The background
On 24 March 2011 a member of the public saw a person being put into a van. The police were informed. The van was eventually stopped by two police officers after two persons had left the van at intervals. The driver (Wright) was still in the van. The police heard a person in the back. He was found to be bound with cable ties. A six inch drill bit had been drilled into his ankle. It is the Crown's case that this was an attempt to torture that man in a drugs related matter. The police found tights with eyeholes in them in the van. One set of tights was matched by DNA to Hughes-John and the second to the claimant. Hughes-John was arrested in April. The claimant was not arrested until 5 October 2011.
[Redacted]
As we have set out, the claimant was arrested on 5 October 2011. He was charged with kidnapping and an offence under s. 18 of the Offences Against the Person Act 1861.
[Redacted]
The Plea and Case Management Hearing on 9 November 2011
On 9 November 2011 there was a PMCH before the Resident Judge of Luton, His Honour Judge Foster.
[Redacted]
The judge then ordered that the kidnapping and s. 18 indictment with which this application is concerned be tried at a date to be fixed with an interval of two weeks after the conclusion of the other trial. This was to allow for that trial to overrun and for there to be a change of jury panel. It therefore was clear that the second trial should take place in late February or early March. If fixed for that time, it would have been well within its CTL which did not expire until 5 April 2012.
The judge then asked the listing officer to make enquiries and find the earliest date. She left court. In the evidence she gave at the hearing of the application to extend the CTL on Tuesday, 3 April 2012, she looked at her own list and made enquiries of the Crown Courts at St Albans and Cambridge, which are within the same organisational unit as Luton. Having made those enquiries she told counsel and then told the judge that the earliest the case could be tried was 30 April 2012. Judge Foster then announced in court that the earliest slot the case could be tried was 30 April 2012 and he fixed the trial for that date. This was outside the CTL, but it was the earliest date said by the listing officer to be available and so understood at the time by all present in court, including those representing the claimant. The Crown said it would apply to extend the CTL.
The application for the extension of Custody Time Limits
No application to extend the CTL was made until late March 2012. The other trial overran and did not, in fact, finish until 22 February 2012;
[Redacted]
On 26 March 2012 the Senior Crown Prosecutor at Luton made an application in writing to the court to extend the CTL for the kidnapping and s. 18 offence. The application first set out the grounds on which it was submitted that the Crown Prosecution Service had acted with due diligence; we need not refer to those at all, as there is no doubt but that the Crown Prosecution Service had acted with due diligence. The application then set out the grounds for contending that there was good and sufficient cause to extend CTL, drawing attention to the fact that the trial could not be proceeded with any earlier, as it had to take place after the other trial [Redacted] had been concluded; that the court was aware, when the trial date was fixed for 30 April 2012, that that date was outside the CTL. The application made reference to the decisions of this court in R v Manchester Crown Court ex parte McDonald [1999] 1 Cr App R 409, R v Central Criminal court ex parte Abu-Wardeh [1999] 1 Cr App R 43 and R(Gibson) v Winchester Crown Court [2004] EWHC 361 (Admin). It was contended that the unavailability of court/time space within the time limit might satisfy the test.
That application was received by the claimant's lawyers on 28 March 2012. The hearing to extend the CTL took place on 3 April 2012 before His Honour Judge Farrell QC. In addition to the cases to which we have referred, the court also had before it the decision of this court in R(Bannister) v The Crown Court at Guildford [2004] EWHC 221 and R(McAuley) and Crown Court at Coventry [2012] EWHC 630 (Admin) handed down on 20 March 2012.
Although no evidence had been served with the application in accordance with the guidance given in McAuley at paragraph 35, there has, in the result, been no prejudice to the claimant. The course taken by the judge was to ask the listing officer to give oral evidence. We have briefly summarised her evidence as to the enquiries she had made at paragraph 6 above. When asked in cross examination about enquiries that had been made of other Crown Court centres including Harrow, Aylesbury, Reading, Leicester, Birmingham and elsewhere, she said that she had not made any. Nor had she contacted the Regional Listing Office. She said she had not done so because at the time of fixing on 9 November 2011 nobody had raised a concern about the date being outside the CTL. If a concern had been raised, she would have looked at contacting the Regional Listing Office.
The decision of the judge on CTL
The judge concluded that there was no lack of due diligence on the part of the Crown Prosecution Service. Although a point was raised in the skeleton argument before us that the service of some additional documents indicated a lack of due diligence, there was nothing in the point. This was therefore a case concerned purely with whether the CTL should be extended due to the unavailability of a court or judge to hear the case.
The judge considered whether for this reason there was good and sufficient cause under s.22(3) to extend CTL. He concluded in summary as follows:
i) This was not a routine case. It therefore did not fall within the guidance given by this court in Bannister or McAuley. A routine case was a case that did not require more than the previous night's preparation by an experienced Crown Court advocate. The listing officer did not regard this as a routine case as the defendant was in custody, another case had to be tried first and the time required for the trial was two weeks; in her view, routine cases were those put into the warned list. This was not such a case. The judge concluded that this was a serious case; it needed an experienced Circuit Judge. There was also expert evidence, including cell site evidence and possibly DNA. For all these reasons it was not routine.
ii) The provisions of s. 22(3) expressly referred to the need to postpone a case for the ordering of separate trials in respect of two or more defendants or two or more offences. Although the specific provision was directed at a case where there was one indictment, it was illustrative of Parliament's intention to allow an extension in a case where there were consecutive trials relating to the same defendant.
iii) There had been proper and careful consideration by the listing officer of all the factors and there had been real efforts to see if an earlier date had been available.
The application to this court and the two issues raised
When the application for permission was adjourned by Ouseley J to us, he drew attention to the significance of what had happened at the PCMH on 9 November 2011 and its possible relevance to the application before this court. At this court the arguments therefore centred on two issues: (i) the categorisation of the case as not routine and the proper approach to s.22 (3) and (ii) the significance of what had happened at the PCMH.
(i) The categorisation of the case as not routine and the proper approach to s. 22(3)
It was the well formulated submission of Mr Forte, who appeared for the claimant, that the judge had misdirected himself in considering the extension of CTL on the basis that this was not a routine case and therefore no more needed to be done than the listing officer had done. His submission was that the term routine was used to distinguish such a case from one of real complexity or one that required a specially authorised judge; in routine cases the Crown had to satisfy the court that every step had been taken to see if the case could be heard within the CTL, in particular by looking at the position in other courts where the case could conveniently be tried and contacting the Regional Listing Office and the Presiding Judges. He referred us to the decisions in McDonald, Abu-Wardeh, Bannister, Gibson and McAuley.
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