The Queen (Lee Colin Marten) v Crown Court at Lincoln
| Jurisdiction | England & Wales |
| Judge | Macur LJ |
| Judgment Date | 06 September 2022 |
| Neutral Citation | [2022] EWHC 2283 (Admin) |
| Docket Number | Case No: CO/2155/2022 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 2283 (Admin)
Macur LJ
Wall J
Case No: CO/2155/2022
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Christopher Jeyes (instructed by Bird & Co) for the Claimant
Mr Lyndon Harris (instructed by CPS) for the Interested Party
Hearing dates: 24 th August 2022
Approved Judgment
This is a judgment of the Court.
Introduction
The physical restrictions upon the conduct of Crown Court trials introduced during the COVID-19 pandemic are no longer necessary, but the backlog of cases awaiting trial is, and will be for some considerable time, extensive. This claim for judicial review arises from a successful application by the Crown Prosecution Service (“CPS”) to extend custody time limits (“CTL”) in a ‘routine’ criminal case in which “the prosecution has acted with all due diligence and expedition.”
Background
The Claimant is awaiting trial on indictment for four offences which were allegedly committed in September 2021, including assault by beating of his previous partner, possession of a bladed instrument, doing acts tending to pervert the course of justice and criminal damage. He was remanded in custody by the Magistrates, and subsequent bail applications on his behalf have been refused, understandably so in view of his previous criminal convictions which include failure to surrender to bail. The CTLs expired on 21 March 2022.
The trial was originally fixed at a pre-trial preparation hearing on 19 October 2021 for a three-to-four-day hearing on the 14 March 2022. This listing was confirmed by the court on 23 February 2022.
On 4 March 2022, the Prosecution served a pre-emptive written application for extension of the CTL which confirmed that the prosecution was ‘trial ready’.
The trial was not listed on the 14 March but instead the listing officer notified the claimant's solicitor that the case would be mentioned the following day “so that a new trial date can be identified, and the CTL's can be discussed…”
On 15 March 2022, HHJ Hirst sitting in the Crown Court in Lincoln determined that the trial could not be heard that week “because of court availability” and that the earliest date when it could be relisted was 12 September 2022. Consequently, he extended the claimant's CTL from 21 March 2022 to 16 September 2022.
On 14 June 2022, the claimant sought permission to judicially review the decision asserting error of law, that is, that the judge failed to take into account relevant matters and give full reasons for his decision and, in the alternative, had made an excessive extension to the CTL. His application was refused on the papers, renewed, and heard by Dove J on 28 July 2022. Consequently, permission was granted to apply for judicial review and directions made for the service of any application to amend the claim to be made by 3 August 2022, and for the defendant, the Crown Court at Lincoln, and interested party, the CPS, to serve “any detailed grounds of resistance, and any evidence necessary for the proper determination of this claim by 4pm on 15 August 2022.”
The CPS have filed detailed grounds of resistance and appear in this Court by Mr Harris who did not appear below. However, neither the CPS nor the Crown Court at Lincoln (which was not represented by counsel before us), has filed any evidence in connection with the events on 15 March 2022 which we now review.
The claimant is represented by Mr Jeyes, who did not appear below. An application to amend the grounds of review has been made in accordance with Dove J's directions. The nature of the amendment is to seek damages for what is claimed to be the claimant's unlawful detention since 21 March 2022 but does not seek to join the Lord Chancellor to the proceedings. By virtue of section 9(3) –(5) of the Human Rights Act 1998, any award would be made against the Crown through the Lord Chancellor as the “appropriate person”. However, no award may be made unless the appropriate person is joined. We therefore do not address this point in this judgment.
The legal framework
The power of the Secretary of State to make regulations to set time limits in relation to preliminary stages of criminal proceedings for an offence, and the period which an accused may be in custody in relation to that offence, is provided by section 22 of the Prosecution of Offences Act 1985. The regulations relevant to this case are the “Prosecution of Offences (Custody Time Limits) Regulations 1987 (SI 1987/299). By regulation 5, the applicable time limit was 182 days, which in the relevant circumstances was sought to be extended in accordance with section 22(3)(a)(iii) of the 1985 Act for “some other good and sufficient cause”.
Mr Jeyes rightly identifies these Regulations as “well-travelled” in this Court, and we would add, of common currency at this time in Crown Courts sitting throughout England and Wales.
The topic of CTLs last received substantive examination in a Divisional Court presided over by Lord Burnett of Maldon CJ sitting with Holroyde LJ in Regina (Director of Public Prosecutions) v Crown Court at Woolwich; Regina (Lucina) v Central Criminal Court [2021] 1 WLR 938, in the context of delays caused as a result of the COVID-19 pandemic, due to a lack of available courtrooms in which jury trials for defendants in custody could be safely heard. The judgment documented the steps taken by and on behalf of the Lord Chief Justice in relation to listing trials during the “lockdown” and the evidence produced regarding the steps taken by the government and Her Majesty's Crown and Tribunal Service (“HMCTS”) in response to the pandemic in relation to the Crown Court and jury trials. The Court found the “ubiquitous nature of the problems facing the Crown Court during the pandemic” to be entirely different from localised problems arising from a shortage of courtrooms for a particular period in a particular area or a reduction in the number of sitting days allocated to particular court centres during the relevant fiscal year. Formal evidence about the impact of the pandemic was unnecessary, “if the need for an extension of a CTL results from a shortage of suitable court rooms caused by the COVID emergency, which provides a good cause within the meaning of section 22(3)(a)(iii) of the 1985 Act.”
Notably, however, the Court did not detract from the long- and well-established jurisprudence in the field, stating:
“41 That is not the end of the inquiry. Subsection (3)(a)(iii) is concerned with not only a good cause but also a “sufficient cause”. It therefore contemplates that there may be a “good” cause which is not “sufficient.” A lack of capacity which results from too little space (or indeed a lack of judges or available lawyers, for example) would constitute a “good” cause for needing an extension for a CTL because on that hypothesis there would be no possibility of the trial in question proceeding whatever was done. Such a good cause may not necessarily be a sufficient one. That might be because of systemic failures or circumstances attaching to the case or defendant. At a systemic level, it is possible to envisage that a shortage of judges and recorders resulting from a dogged determination not to authorise the appointment of sufficient numbers would engage the question whether the shortage (a good cause for needing to extend a CTL) was also a sufficient one. So too if the inability to conduct a trial within the CTL were the result of systemic financial constraints which could not be overcome by moving the case to another Crown Court or substituting it for a non-custody trial about to be heard …”
The Court proceeded in [44] to provide some “non-exhaustive principles relevant to applications for extensions of CTLs during the pandemic”. These principles hold good for applications for extensions which are made post pandemic restrictions; namely, assuming there was a good cause for an extension:
“44 …
(ii) Whether it provides a sufficient cause depends on an examination of the individual facts of the case and of the defendant in question.
(iii) The normal requirements of exploring administratively whether a trial can be brought on elsewhere within the CTL should be followed; so too whether any non-custody cases listed for hearing can be vacated to enable a custody case to come into the list. … The underlying purposes of the CTLs explained by Lord Bingham in McDonald remain as potent as ever.
(iv) If practical arrangements cannot be made, it does not follow that it will be appropriate to extend the CTL in every case even though the need to delay a trial will be clear. In some cases, a defendant should be released subject to exacting bail conditions. Factors which may come into play include: (a) the likely duration of the delay before trial; (b) whether there has been any previous extension of the CTL; (c) the age and antecedents of the defendant; (d) the likely sentence in the event of conviction; a defendant should rarely be kept in custody if he had served, or come close to serving, the likely sentence were he convicted; (e) the underlying reasons why bail was refused; (f) any particular vulnerabilities of the defendant which make remand in custody particularly difficult.
…
(vi) The...
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The King on the application of Director of Public Prosecutions v Crown Court at Bristol
...the power to review the position in the light of changing circumstances.” 40 Very recently, in R (Marten) v Crown Court at Lincoln [2022] EWHC 2283, Macur LJ and Wall J quashed a decision to extend a custody time limit where the decision was inadequately reasoned and there was insufficient ......