R v Manchester Crown Court, ex parte McDonald ; R v Leeds Crown Court, ex parte Hunt ; R v Winchester Crown Court, ex parte Forbes ex parte Wilson and Mason
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR JUSTICE COLLINS |
| Judgment Date | 09 November 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1109-4 |
| Date | 09 November 1998 |
| Court | Court of Appeal (Civil Division) |
[1998] EWCA Civ J1109-4
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST DIVISIONAL COURT
Royal Courts of Justice
The Strand
London
The Lord Chief Justice of England and Wales
(Lord Bingham of Cornhill)
Mr Justice Collins
and
and
and
and
and
and
and
CO/3554/98 and CO/3553/98
MR K GLEDHILL (instructed by Nicholas Green Solicitors, Halifax HX1
2AL) appeared on behalf of THE APPLICANT WAYNE McDONALD
MR M MURRAY (instructed by the Crown Prosecution Service, Manchester)
appeared on behalf of THE RESPONDENT
CO/3630/98 and CO/3159/98
MR K GLEDHILL (instructed by Nicholas Green Solicitors, Halifax HX1 2AL) appeared on behalf of THE APPLICANT COLIN ARTHUR HUNT
MR R BIRCH (instructed by the Solicitor, Customs & Excise) appeared on behalf of THE RESPONDENT
C0/3913/98
MR J LOFTHOUSE (instructed by Messrs Addison Madden, Portsmouth PO1 2PS) appeared on behalf of THE APPLICANT STUART DAVID FORBES
MR S PARISH (instructed by the Crown Prosecution Service, Eastleigh) appeared on behalf of THE RESPONDENT
CO/3975/98
MR G KEARL (instructed by Messrs McCormicks, Leeds LS1 3AX) appeared on behalf of THE APPLICANTS MARVIN LEE WILSON and STUART MASON
APPEARANCES:
Monday 9 November 1998
The five applicants now before the court all, for differing reasons, challenge judicial decisions to extend custody time limits. Such applications have proliferated in recent months. In this judgment of the court we seek to give guidance on the law governing such decisions.
Everyone has a basic right to personal liberty. That is a right respected by the common law, and expressed in the European Convention of Human Rights which provides in Article 5:
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ……
3. Everyone arrested or detained in accordance with the provisions of paragraph (1)(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. ……"
The general presumption in favour of liberty is reflected in section 4 (1) of the Bail Act 1976 which grants a right to bail unless conditions specified in Schedule 1 to the Act are satisfied. Schedule 1 provides that an accused but unconvicted defendant need not be granted bail if a court is satisfied that there are substantial grounds for believing that he would, if released on bail (whether subject to conditions or not), fail to surrender to custody, or commit an offence while on bail, or interfere with witnesses or otherwise obstruct the course of justice; and there are other situations in which a defendant need not be granted bail, as (for example) where he is accused of an indictable or either-way offence and is alleged to have committed that offence while on bail in earlier criminal proceedings, or if the court is satisfied that he should be kept in custody for his own protection. In taking decisions on the grant of bail the court is required by paragraph 9 of the Schedule to have regard to such of the following considerations as appear to it to be relevant, namely
"(a) the nature and seriousness of the offence or default (and the probable method of dealing with the defendant for it),
(b) the character, antecedents, associations and community ties of the defendant,
(c) the defendant's record as respects the fulfilment of his obligations under previous grants of bail in criminal proceedings,
(d) except in the case of a defendant whose case is adjourned for inquiries or a report, the strength of the evidence of his having committed the offence or having defaulted."
Thus the general right of any unconvicted person to remain at liberty until convicted may be curtailed if certain stringent conditions are shown to be satisfied.
If the law ended at that point it would manifestly afford inadequate protection to unconvicted defendants, since a person could, if the Bail Act conditions were satisfied, be held in prison awaiting trial indefinitely, and there would be no obligation on the prosecuting authority to bring him to trial as soon as reasonably possible. It was no doubt to rectify that defect that Parliament, in section 22 of the Prosecution of Offences Act 1985, empowered the Secretary of State by regulation to make provision as to the maximum period for which an accused person might be held in custody at different stages of the proceedings against him. The Secretary of State has exercised that power to make the Prosecution of Offences (Custody Time Limits) Regulations 1987 which, as amended, provide in Regulation 5(3) that
"The maximum period of custody—
(a) between the time when the accused is committed for trial and the start of the trial; …….
shall, subject to the following provisions of this regulation, be 112 days".
Section 22(3) of the 1985 Act however provides:
"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."
All the applications before us challenge decisions to extend the maximum period of custody beyond the period of 112 days provided in Regulation 5(3).
The 1985 Act and the 1987 Regulations as amended have three over-riding purposes:
(1) To ensure that the periods for which unconvicted defendants are held in custody awaiting trial are as short as reasonably and practically possible;
(2) to oblige the prosecution to prepare cases for trial with all due diligence and expedition; and
(3) to invest the court with a power and duty to control any extension of the maximum period under the regulations for which any person may be held in custody awaiting trial.
These are all very important objectives. Any judge making a decision on the extension of custody time limits must be careful to give full weight to all three.
In any application to the court for an order extending custody time limits beyond the maximum period laid down in the regulations it is for the prosecution to satisfy the court on the balance of probabilities that both the statutory conditions in section 22(3) are met. If, but only if, the court is so satisfied does the court have a discretion to extend the custody time limit. If it is not satisfied it may not do so. If it is satisfied it may, but need not, do so.
The requirement in section 22(3) that the court must be "satisfied" means that the court can never abdicate its responsibility by making orders of extension on the nod, or simply because the parties agree or no objection is raised. It is necessary that the court "should be seized of the question and should address [its] mind [s] to section 22(3) and especially the two matters of which [it has] to be satisfied" ( per Taylor LJ, R v Sheffield Justices ex parte Turner [1991] 2 QB 472 at 477). It is clear, as Jowitt J pointed out in R v Crown Court at Norwich ex parte Parker (1993) 96 Cr. App. R. 68 at 70, that a court making a decision under section 22(3) must always be adequately and fully informed of the matters which affect the decision. Whether evidence will be necessary, or whether the court can rely on information supplied by counsel, will depend on the nature and extent of any controversy. If, for example, the prosecutor outlines the history of the proceedings and suggests, without contradiction by the defence, that the prosecution has acted with all due diligence and expedition, the court will be more readily satisfied on that score than if that condition is the subject of a substantial contest. It is, however, always for the court and not for the parties to be satisfied.
The condition in section 22(3)(b) that the prosecution should have acted with all due expedition poses little difficulty of interpretation. The condition looks to the conduct of the prosecuting authority (police, solicitors, counsel). To satisfy the court that this condition is met the prosecution need not show that every stage of preparation of the case has been accomplished as quickly and efficiently as humanly possible. That would be an impossible standard to meet, particularly when the court which reviews the history of the case enjoys the immeasurable benefit of hindsight. Nor should the history be approached on the unreal assumption that all involved on the prosecution side have been able to give the case in question their undivided attention. What the court must require is such diligence and expedition as would be shown by a competent prosecutor conscious of his duty to bring the case to trial as quickly as reasonably and fairly possible. In considering whether that standard is met,...
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