R (on the application of Anthony McKenzie) v Crown Court at Leeds
| Jurisdiction | England & Wales |
| Judge | Lady Justice Rafferty DBE,Sir Michael Supperstone |
| Judgment Date | 15 July 2020 |
| Neutral Citation | [2020] EWHC 1867 (Admin) |
| Date | 15 July 2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1737/2020 |
[2020] EWHC 1867 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RT HON Lady Justice Rafferty
THE HON Sir Michael Supperstone
SITTING AS A HIGH COURT JUDGE
Case No: CO/1737/2020
and
Rupert Bowers QC and Victoria Smith-Swain (instructed by MAA Solicitors) for the Claimant
The Defendant did not appear and was not represented
Sir James Eadie QC and Melanie Cumberland and Daniel Cashman (instructed by GLD) for the 1 st and 3 rd Interested Parties
Tom Little QC (instructed by the CPS) for the 2 nd Interested Party
Hearing date: 16 June 2020
Approved Judgment
Lady Justice Rafferty DBE and
Introduction
This is the judgment of the Court. The Claimant is in custody on remand, awaiting trial before the Crown Court at Leeds on an indictment alleging offences of attempted murder, wounding with intent and damaging property. His trial (with an estimated length of hearing of four days, which was scheduled to commence on 27 April 2020), was adjourned because of severe disruption to the safe operation to the Crown Court caused by the coronavirus pandemic.
On 23 March 2020 the Lord Chief Justice of England and Wales (the “Lord Chief Justice”) announced in a short statement that he had decided that “we need to pause jury trials for a short time to enable appropriate precautions to be put in place”. He stated that “no jury trials or other physical hearings can take place unless it is safe for them to do so”. The statement of the Lord Chief Justice is said by him to be in the nature of a listing decision.
On the same day, 23 March, the Director of Public Prosecutions (the “DPP”) made an application in writing to extend the Claimant's custody time limit (which we shall refer to as the “CTL”), which was due to expire on 1 June 2020.
On 27 March 2020 the first iteration of the Coronavirus Crisis Protocol for the Effective Handling of Custody Time Limit Cases in the Magistrates and the Crown Court (the “Protocol”) was agreed. The Protocol was signed by the President of the Queen's Bench Division, the Chief Executive and the Deputy Chief Executive of HMCTS, and the DPP. An amended iteration of the Protocol was issued on 7 April 2020. The Protocol was to provide “rules of practice” to operate as a “temporary framework during the Coronavirus pandemic for the efficient and expeditious handling of cases that involve a Custody Time Limit”. The terms of the amendment are not material to the claim.
On 27 April 2020 the application to extend the CTL was heard by remote link by HHJ Guy Kearl QC, Recorder of Leeds. On 4 May the judge handed down a reasoned written judgment. He extended the CTL to expire on 1 July 2020 (“the decision”). He fixed a date for review on 30 June and set a provisional trial date of 23 October 2020.
By amended grounds of claim the Claimant challenges the decision on three grounds: (1) first, he contends that the Lord Chief Justice's listing decision to suspend jury trials (see para 10 below) was ultra vires because it curtails a fundamental constitutional right which could only be curtailed on a blanket basis by primary legislation ( Ground 1); (2) second, that the suspension of jury trials for an indefinite period by the listing decision could not amount to a “good and sufficient cause” for the purposes of s.22(3) of the Prosecution of Offences Act 1985 (“POA 1985”) to extend the Claimant's CTL ( Ground 2); and (3) third, that the Protocol (a) is unlawful because it subverts the statutory scheme, and/or (b) places an unlawful fetter on any judge hearing an application to extend a defendant's CTL ( Ground 3).
We heard this case on 16 June 2020. At the conclusion of the hearing we gave our decision with brief reasons, stating that a written judgment would be handed down in due course. We allowed the application to amend the grounds of claim, granted permission to apply for judicial review, but for the reasons given dismissed the claim. We did not consider it necessary, having regard to the conclusion we had reached, for the Lord Chief Justice to be joined as a defendant to the proceedings. Finally, we revoked paragraph 1 of the order of Swift J of 13 May 2020 providing, inter alia, anonymity to the Claimant.
The Factual Background
On 17 March 2020 the Lord Chief Justice announced that “the impact of the public health emergency on the operation of the courts has been under constant review”. He said that he had decided that:
“no new trial should start in the Crown Court unless it is expected to last for three days or less. All cases estimated to last longer than three days listed to start before the end of April 2020 will be adjourned. These cases will be kept under review and the position regarding short trials will be revisited as circumstances develop and in any event next week. As events unfold decisions will be taken in respect of all cases awaiting trial in the Crown Court. … Trials underway will generally proceed in the hope that they can be completed”.
Mr Ben Yallop, the Private Secretary to the Lord Chief Justice, said in his witness statement (at para 19) that on 22 March “the Lord Chief Justice was informed that 40% of jurors for the coming week had withdrawn”.
In his statement of 23 March (the listing decision, see para 2 above) the Lord Chief Justice stated that with regard to the Crown Courts:
“1. My unequivocal position is that no jury trials or other physical hearings can take place unless it is safe for them to do so. A particular concern is to ensure social distancing in court and in the court building.
2. This morning no new trials are to start. Jurors summoned for this week are being contacted to ask them to remain at home, and contact the court they are due to attend. They will only be asked to come in for trials where specific arrangements to ensure safety have been put in place. In some cases, this may mean that jurors may be called in to start a new trial later on Monday. All hearings in the Crown Court that can lawfully take place remotely should do so and other hearings not involving a jury should continue if suitable arrangements can be made to ensure distancing.
3. Efforts to bring existing jury trials to a conclusion should continue. Social distancing in accordance with PHE guidelines must be in place at all times and at all places within the court building. Considerable imagination and flexibility may be needed to achieve that. This is already happening in some Crown Courts. HMCTS will continue to work to ensure that safety measures are in place in all parts of the court building in which trials are already taking place. The basic hygiene arrangements urged upon us by the Prime Minister must be available. Resident judges, with HMCTS staff, will determine whether a trial can safely be continued.
4. If it is necessary to adjourn trials already underway for a short period to put those safety measures in place, this must be done.”
The Protocol signed on 27 March stated, inter alia:
“2. The purpose of this Protocol is to set a temporary framework during the Coronavirus pandemic for the efficient and expeditious handling of cases that involve a Custody Time Limit (CTL). It does not create legal obligations or restrictions on (any) party. Unless stated otherwise this Protocol applies to both magistrates' courts and Crown Court cases. The Protocol will be reviewed monthly by the SPJ [Senior Presiding Judge] who will determine when it will cease.
…
5. This Protocol does not override independent judicial discretion and every case must be decided on its own merits. The Protocol contains rules of practice only and the relevant law is unaffected. The judge responsible for deciding each application will apply the law.
Listing of CTL cases
…
7. No CTL case should be adjourned without a future date and during the period that this Protocol is in operation that date should not be for trial but for mention or further remand…
CTL extensions
…
15. The Coronavirus pandemic is an exceptional situation and the adjournment of CTL trials as a consequence of government health advice and of directions made by the Lord Chief Justice amounts to good and sufficient cause to extend the custody time limit. …”
The Legal Framework
Section 22 of POA 1985 provides:
“(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 magistrates' court; or
(ii) in the custody of the Crown Court;
in relation to that offence. …
(3) 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 offences; or
(iii) some other good and sufficient cause; and
(b) that the prosecution has acted with all due diligence and expedition…”
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The Queen on the applications of Director of Public Prosecutions v Crown Court at Woolwich
...prospect of a person who may represent a danger to the public being released pending trial.” 34 In R (McKenzie) v. Crown Court at Leeds [2020] 4 WLR 106, the extension of a CTL was challenged on the grounds that the Lord Chief Justice's statement on 23 March 2020 that jury trials should be......