R (O) v Crown Court at Harrow
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kennedy,Mr Justice Hooper,LORD JUSTICE KENNEDY,MR JUSTICE HOOPER,‘LORD JUSTICE KENNEDY’ |
| Judgment Date | 16 April 2003 |
| Neutral Citation | [2003] EWHC 868 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/580/2003 & 1560/2003 |
| Date | 16 April 2003 |
[2003] EWHC 868 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE (DIVISIONAL) COURTS
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Kennedy and
Mr Justice Hooper
Case No: CO/580/2003 & 1560/2003
James Turner QC (instructed by Clarke Kiernan) for the Claimant
Alan Newman QC and Mark Paltenghi (instructed by CPS) for the Crown Court
Clive Lewis (instructed by Treasury Solicitor) for the Secretary of State for the Home Department and the Governor of HM Prison Wormwood Scrubs.
We have before us a claim for judicial review, and an application for Habeas Corpus, both of which relate to the decision of Judge Sanders, sitting in the Crown Court at Harrow on 9 th December 2002 that the claimant should not be released on bail despite the expiration of the custody time limit which had been applicable to his case.
Background Facts.
It is alleged that over a period of days in mid-September 2000 the claimant raped a woman in her flat in London, imprisoned her in his car, and then indecently assaulted her in his flat. Nine months later the alleged victim gave birth to a baby boy, and four months after that, in October 2001, she made her first complaint to the police. On 6 th December 2001 the claimant was arrested, interviewed and charged with rape, false imprisonment and indecent assault. On 7 th December 2001 his case was sent for trial at the Central Criminal Court pursuant to section 51 of the Crime and Disorder Act 1998.
On 17 th December 2001 an application for bail was made to Judge Goldstein. The claimant had a previous conviction for rape, and for that offence and another offence of violence he had served 14 years imprisonment, so in accordance with section 25 of the Criminal Justice and Oublic Order Act 1994, as amended, the judge could only grant bail if he was satisfied that there were “exceptional circumstances” which justified that course. He was not so satisfied, and bail was refused.
The case was transferred to Woolwich Crown Court and there on 28 th January 2002 the claimant was arraigned on an indictment which contained three counts, alleging rape, false imprisonment and indecent assault. He pleaded not guilty to all counts and a trial date was fixed for 8 th April 2002. A further application for bail was refused.
On 22 nd March 2002 the claimant dispensed with the services of his counsel and solicitors, and served his own defence statement. The matter was mentioned before Judge Norris who, without altering the trial date, gave the claimant time to reconsider his position. On 3 rd April 2002 the claimant indicated that he would like to have the services of his former legal team, and the judge re-instated the representation order. Valuable time had been lost, so the trial date was vacated and re-fixed for Thursday 6 th June 2002. Once again there was an application for bail, and it was refused.
At the end of May 2002 the claimant again dispensed with the services of his lawyers, but on 6 th June 2002 when the case was called on he was represented, by leading and junior counsel. After the midday adjournment the claimant once again dispensed with the services of his lawyers. Next day he asked for his legal team to be re-instated. That was done. Defence counsel then said that because there had been delay in disclosure an application to stay would be made, and it was decided to hear that application on the next day.
Under the Prosecution of Offences (Custody Time Limits) Regulations 1987 S.I. 299, as amended, Regulation 5(6B) provides that where an accused is sent for trial under section 51 of the Crime and Disorder Act 1998 the maximum period of custody between the sending for trial and the start of the trial shall be 182 days, subject to certain deductions which do not apply in this case. The regulations were made pursuant to section 22 of the Prosecution of Offences Act 1985, and subsection 11A of that section provides that the start of a trial on indictment shall be taken to occur when the jury is sworn. The period of 182 days from 7 th September 2001 was due to expire at midnight on 7 th June 2002, so the prosecution applied under section 22(3) of the 1985 Act to extend the custody time limit. That application was refused because the court was not satisfied that the prosecution had acted with all due diligence and expedition in relation to disclosure. A further application for bail was refused because, pursuant to section 25(1) of the Criminal Justice and Public Order Act 1994, in the light of the claimant's previous conviction, the judge was of the opinion that it could only be granted if the court was satisfied that there were exceptional circumstances to justify it, and the court was not so satisfied.
A defence request for access to hospital and telephone records, made for the first time on 8 th June 2002, resulted in the case being stood out of the list, and re-listed for mention on 21 st June 2002. It was then re-fixed for 4 th November, and a further application for bail was refused.
On 20 th August 2002 an application for bail was made to Keith J in the High Court and that application was refused.
The Crown Court continued to monitor disclosure, and on 10 th October 2002 the case was listed to consider two preliminary matters of law. The claimant once again dispensed with the services of his lawyers, and the representation order was revoked. In the circumstances it was not possible to deal with the issues of law, which had to be put over to be dealt with on the first day of the trial.
On 4 th November 2002 the claimant was acting in person, but Mr Nick Price QC was in attendance, having been appointed by the court to cross-examine the complainant. There were issues in relation to discovery, abuse of process, admissibility of photographs, and the use of screens, and the claimant from time to time absented himself from the court room. Eventually on Wednesday 6 th November 2002 the court began to empanel a jury, but one of the panel had been at school with the claimant, and another member of the panel, who was related to him, made an observation in public which made it necessary to release the entire panel. Subsequently the claimant once again applied for and was granted representation, and on 15 th November 2002, because he was considered to be well known in the Woolwich area, the case was transferred to the Harrow Crown Court. At that court on Thursday 5 th December 2002, before Judge Sanders, the trial was fixed for Monday 2 nd June 2003 in order to meet the needs of the defence in relation to preparation and availability of counsel. The court was prepared to hear the case in January 2003. It was given a time estimate of three to four weeks. An application for bail was commenced, and was concluded on Monday 9 th December when the application was refused. After bail was refused the claimant was given a further opportunity to opt for trial in January, but he declined to do so.
These Proceedings.
It is that decision of 9 th December 2002 which is challenged in these proceedings for judicial review, which were commenced on 30 th January 2003. The application for permission to seek judicial review was considered on paper by Collins J on 6 th February 2003. He referred it to an oral hearing, and permission was granted by Jackson J on 26 th February 2003. On 20 th March 2003 the solicitors now acting for the claimant indicated that at this hearing the claimant would also apply for a writ of Habeas Corpus, contending that since the expiration of the custody time limit on 7 th June 2002 his custody has been illegal.
Issues.
Five issues arise for consideration in this case, namely –
(1) the effect of section 29(3) of the Supreme Court Act 1981.
(2) Whether, bearing in mind that what the claimant is seeking is release from custody, the arguments addressed to us should be addressed to a High Court Judge.
(3) Whether the amendment to regulation 6(6) of the 1987 Regulations is, in terms of domestic legislation, ultra vires.
(4) What is the proper approach to the wording of section 25 of the 1994 Act, having regard to (a) the right to liberty enshrined in Article 5 of the European Convention on Human Rights, and (b) European and domestic jurisprudence as to the burden of proof.
(5) Whether, in the context of this case, the judge's reliance on section 25(1) of the 1994 Act, after the expiration of the custody time limit violated the claimant's right to trial within a reasonable time as laid down by Article 5(3) of the Convention.
Issues 1 and 2.
The first two issues I can deal with quickly because they are not in dispute. Section 29(3) of the 1981 Act excludes from the jurisdiction of this court the jurisdiction of the Crown Court “in matters relating to trial on indictment”. At the heart of these proceedings there is the complaint by the claimant that from 7 th June 2002 onwards all of the judges who have considered his applications for bail have relied upon the amended wording of Regulation 6(6) of the 1987 Regulations when deciding to refuse bail after the expiration of the custody time limit. The Regulations were made, and amended, pursuant to power given to the Secretary of State in section 22(1) of the 1985 Act, and section 22(13) provides that for the purposes of section 29(3) of the 1981 Act “the jurisdiction conferred on the Crown Court by this section shall be taken to be part of its jurisdiction in matters other than those related to trial on indictment.” That, as it seems to me, is clear statutory authority for the...
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