SL (A Juvenile) v DPP

With permission granted by Scott Baker J, the applicant challenges a decision of HHJ Mowat, on 23rd April 2001, to extend custody time limits, in relation to the applicant, until the end of September 2001.

The application raises two questions. First, whether Bail Act considerations are capable of giving rise to good and sufficient cause for extending custody time limits within section 22(3)(iii) of the Prosecution of Offences Act 1985. Secondly, if they are not, whether the judge's decision can effectively be challenged.

The material facts can be very shortly rehearsed. The applicant is one of 10 defendants who are now to be tried at the Reading Crown Court for an offence, so far as this applicant is concerned, of conspiracy to defraud, for which he was arrested on 3rd October last year. Initially, there were two co-accused with whom he was committed for trial on 16th November 2000. At a plea and directions hearing, on 11th December, a provisional trial date was fixed for 2nd May of this year. Custody time limits were due to expire on 8th March, but prior to such expiry a number of other accused were committed for trial.

The position at the time of the application to the judge was that the trial was expected to take place some time in September this year. But we are told by Mr Enright, and have no reason to doubt, that, for a variety of reasons, that may not now occur. Custody time limits were extended by the trial judge on an occasion prior to 23rd April, but it is the decision on that date which is the subject of challenge. It is common ground that, as the judge indicated in the course of her ruling, the likely length of the trial of these defendants, who are all, presently, pleading not guilty, is of the order of six months. The judge, as appears from page 4C of the transcript of her ruling, said this:

"So the cause for the delay as from today to September is the fact that the position has now crystallized, we have a ten-man trial, we have all defendants pleading not guilty, which we did not know until today and the court cannot accommodate the trial, as far as courtroom and Judge are concerned until September. Now, of course, that is not always good and sufficient cause for further remanding a man in custody, but in this particular case I have come to the conclusion that it is and I bear in mind the considerations that came into play in deciding whether or not to grant him bail which, again, are not the whole story, but they are something which I am entitled to, and should, bear in mind. Without rehearsing them fully, I am, as I said before, perfectly satisfied that Mr Eliot is somebody who should not have been granted bail in the first instance and the decision to remand him in custody was entirely right.

That being the case, I am prepared to extend the custody time limit and I will say until the end of September…"

No question arises in this case in relation to due diligence and expedition. The judge was satisfied that the Crown had acted with due diligence and expedition and no attempt is made in this court to challenge that finding.

The submission which Mr Enright ably makes, on behalf of the applicant, is that the judge would not have ruled as she did were it not for the bail aspect of the matter. Mr Enright submits that the passage which I have read shows that the bail aspect was crucial in the judge's determination of the issue as to whether there was good and sufficient reason for extending the custody time limits. For the Crown, on the other hand, Mr Hick submits that that is not the position. The real reason advanced by the judge was the unavailability, for a trial of this potential length and complexity, of a suitable courtroom and judge before September.

Mr Enright's submission on the law is that, if his submission as to the proper construction of the judge's ruling is correct, her decision was fatally flawed because Bail Act considerations are not properly to be considered in relation to the extension of custody time limits. He conceded that if, on a true construction of what the judge said, two separate reasons were being given by her for extending time limits, the decision would not be reviewable. That concession, as it seems to me, is rightly made, having regard, for example, to the outcome of R v Central Criminal Court ex parte Abu-Wardeh [1991] 1 Cr App R 43.

So far as the propriety of taking Bail Act considerations into account is concerned, Mr Enright took the court to a number of authorities. In addition, to Abu-Wardeh, on which he relied for the proposition that good and sufficient cause must lie in a reason for postponement of the trial, he referred to R v Manchester Crown Court ex parte McDonald [1991] 1 Cr App R 409; R v Sheffield Crown Court ex parte Headley [2000] 2 Cr App R 1; and R v Worcester Crown Court ex parte Norman [2000] 2 Cr App R 33. He also took us to a judgment of Collins J in ex parte S (unreported) 23rd August 1999, which was decided four days after the decision in ex parte Headley, which was not cited to Collins J.

In the forefront of his submission, Mr Enright relies upon passages in the judgment of Lord Bingham, CJ, in ex parte McDonald, in particular at page 413D, where Lord Bingham identifies the three overriding purposes of the 1985 Act and the regulations made thereunder, namely:

"(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."

Mr Enright accepted that, at page 414G-415A of the judgment, Lord Bingham, in considering good and sufficient cause, referred to the seriousness of the offence not "of itself" being good and sufficient cause: see Governor of Winchester Prison ex parte Roddie (1991) 93 Cr App R 190; nor the need to the protect the public: see ex parte Abu-Wardeh.

He accepted also that in ex parte Headley, at page 6C, I referred to Bail Act considerations as not "of themselves" providing good and sufficient cause for extending custody time limits. In ex parte Abu-Wardeh at page 48F Auld LJ also used the words "in itself" by reference to Parliament's intention not being that the original reason for custody could be a good cause for extending custody time limits.

All of those references to Bail Act considerations, "in themselves" not being capable of giving rise to good and sufficient cause, are of course relied on by Mr Hick on behalf of the Crown as indicating that they may properly add weight to other factors. But, says Mr Enright, as appears from ex parte Norman, in which the effect of ex parte Headley was summarised by Smith Mrs J at 39D, in a judgment with which at 41A I agreed, it was said that if Bail Act considerations were taken into account it would be wrong so to do in relation to an application to extend custody time limits.

Mr Enright stresses the passages in the judgment of Lord Bingham in McDonald, and the judgment which I gave in ex parte Headley, which refer to the separate and additional protection over and above Bail Act considerations accorded to defendants by the custody time limit regime. Mr Hick submits that the passage relied on by Mr Enright in the judgment of Smith Mrs J was an inaccurate summary of ex parte Headley and was, in any event, obiter. It is right to say that the summary was obiter and not precisely accurate.

But the question now arises as to whether Bail Act considerations are properly to be taken into account as a factor capable of giving rise to good and sufficient cause for extending custody time limits. In my judgment, they are not. The regimes are separate and different. The purpose of the custody time limit regime, as identified by Auld LJ in ex parte Abu-Wardeh, is one which requires a good and sufficient cause relating to the postponement of the trial. For my part, therefore, I accept Mr Enright's submission as to the law, namely that Bail Act considerations are not properly to be considered when addressing the question of whether there is good and sufficient cause. It is, therefore, to be hoped that such considerations will cease to be canvassed on applications to extend custody time limits.

There remains the other question, which at the outset of this judgment I sought to identify, namely whether, on a true reading, the Crown Court judge's decision is fatally flawed by her reference to Bail Act considerations. In my judgment, it is not. As it seems to me, she gave two reasons for extending custody time limits: first, there was the unavailability of a court and judge; secondly, (and it is to be noted that she used the word "and", not some word such as 'because' or 'by way of explanation' when dealing with the Bail Act considerations) she referred to bail considerations.

In my judgment, she was entitled to reach the conclusion which she did, having regard to the features of this particular case, in terms of likely...