The Queen on the applications of Director of Public Prosecutions v Crown Court at Woolwich
| Jurisdiction | England & Wales |
| Judge | The Lord Burnett of Maldon CJ,Lord Justice Holroyde |
| Judgment Date | 26 November 2020 |
| Neutral Citation | [2020] EWHC 3243 (Admin) |
| Date | 26 November 2020 |
| Docket Number | Case No: CO/3349/2020; CO/3511/2020 |
| Court | Queen's Bench Division (Administrative Court) |
and
and
[2020] EWHC 3243 (Admin)
THE RT HON The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
and
THE RT HON Lord Justice Holroyde
Case No: CO/3349/2020; CO/3511/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Louis Mably QC and Simon Ray (instructed by CPS Appeals and Review Unit) for the DPP
Sir James Eadie QC, Miss Melanie Cumberland and Miss Celia Rooney (instructed by Government Legal Department) for the Lord Chancellor and HMCTS
Paul Keleher QC and Miss Kate O'Raghallaigh (instructed by Morrison Spowart) for Tesfa Young-Williams
Benjamin Aina QC and Piers Kiss-Wilson (instructed by Stephen Fidler & Co) for Jayano Lucima
Hearing dates: 04 November 2020
Approved Judgment
The Lord Burnett of Maldon CJ and
These two unconnected claims for judicial review raise issues about the correct approach in the criminal courts to applications to extend custody time limits (“CTLs”) during the COVID-19 pandemic. In Tesfa Young-Williams the Director of Public Prosecutions seeks permission to apply for judicial review of the decision of HH Judge Raynor sitting in the Crown Court at Woolwich on 8 September 2020, refusing to extend the CTL. Jayano Lucima seeks permission to apply for judicial review of the decision of HH Judge Hillen sitting in the Central Criminal Court on 3 September 2020, extending the CTL in his case. Both cases have been listed for rolled-up hearings. This is the judgment of the court to which we have both contributed.
Tesfa Young-Williams: The Facts
On 21 October 2019, Tesfa Young-Williams was arrested in possession of 843.9g of cocaine, 5.44g of diamorphine (heroin), a quantity of cannabis and £2,180 in cash. He was charged with three counts of possession of a controlled drug with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971, and one count of possession of criminal property, contrary to section 329(1) of the Proceeds of Crime Act 2002. On 23 October 2019 he was sent to the Crown Court for trial and remanded in custody, with a CTL expiring on 20 April 2020. A trial date within that CTL was vacated at a time when for reasons of safety Crown Court trials were temporarily suspended. At a hearing on 16 April 2020, the CTL was extended by Her Honour Judge Downing to 22 June 2020. On 17 June 2020 it was further extended by His Honour Judge Miller to 10 September 2020. Both those judges found that the difficulty of holding a trial during the pandemic amounted to a good and sufficient cause of the need for an extension.
In January 2020 Mr Young-Williams had been charged with offences of supplying cocaine and supplying heroin, both contrary to section 4(3)(b) of the Misuse of Drugs Act 1971, and having an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1953. Following the hearing before Judge Miller the prosecution served a written application for joinder of those further charges. At a hearing before His Honour Judge Raynor on 23 July 2020, the application for joinder was granted. The defence submitted, however, that the continued prosecution of Mr Young-Williams should be stayed as an abuse of the process of the court, for reasons which are not material to these proceedings. Judge Raynor listed the abuse application for hearing on 12 October 2020.
On 21 August 2020 the prosecution made a written application for extension of the CTL, once again citing the pandemic as good and sufficient cause. That application was heard on 8 September 2020, by which date Mr Young-Williams had been held in custody for 139 days beyond the original CTL. Judge Raynor refused the application, holding that the lack of available courtrooms to hear jury trials for defendants in custody was neither a good nor a sufficient cause to extend the CTL in his case. He also refused the extension on the ground that the prosecution had not acted with due diligence and expedition.
Jayano Lucima: The Facts
Jayano Lucima, who is now 18, was aged 17 when charged on 6 January 2020 with the murder of William Blaise Algar. His CTL expired on 6 July 2020 but was extended to 4 September 2020 by Her Honour Judge Dhir QC as other suspects were to be joined to the murder allegation. His Honour Judge Hillen then further extended the CTL to 17 September 2020 because of the pandemic. Neither of those extensions was contested by Mr Lucima.
On 16 July 2020 the murder charge was abandoned, and Mr Lucima was instead proceeded against for acts tending and intended to pervert the course of public justice. The prosecution case is that he bought cleaning materials for his co-defendants to enable them to cover up the murder of Mr Algar. The prosecution successfully applied to sever his case and to try him after the conclusion of the murder trial. That is fixed for 15 March 2021. The prosecution applied for a further extension of the CTL, which Mr Lucima opposed. On 3 September 2020 Judge Hillen granted a further extension to 19 February 2021.
The COVID-19 pandemic and response
On 23 March the Prime Minister announced a “lockdown” which took effect through regulations which came into force on 26 March. On 28 March guidance on social distancing was given by the Government which advised that those who were not members of the same household should stay two metres apart. That guidance was varied from 26 June to the “1m+ rule”, which advised that individuals could be one metre apart provided other precautionary measures were in place.
On 17 March the Lord Chief Justice decided that no new trials with an estimated length of more than three days should start and indicated that the position would be kept under review. Events moved quickly. On 23 March the Lord Chief Justice made a listing decision suspending jury trials to allow appropriate precautions to be put in place.
On 27 March a Coronavirus Crisis Protocol for the Effective Handling of Custody Time Limit Cases in the Magistrates and the Crown Court (“the Protocol”) was agreed between the President of the Queen's Bench Division, the Chief Executive and deputy Chief Executive of Her Majesty's Courts and Tribunals Service (“HMCTS”) and the DPP. The Protocol set out rules of practice for the handling of cases involving a CTL. It did not create legal obligations or restrictions, was to be reviewed regularly, and did not “override independent judicial discretion” to decide every case on its own merits. The Protocol contained rules of practice only and the relevant law is unaffected.
In early April a Jury Trial Working Group (“the Working Group”) was established under judicial chairmanship to consider the measures needed to enable courts to resume jury trials. It involved not only HMCTS but the key players in the criminal justice system, including the legal profession. On 11 May 2020 two trials which had been adjourned resumed at the Old Bailey and on 18 May new trials started in a handful of courts, expanding thereafter across the country.
On 24 August the SPJ and Deputy SPJ published a Memorandum (“the August Memorandum”) which summarised the measures taken to date, including in relation to increasing capacity for jury trials in the Crown Court. At that stage, 91 courtrooms were able to accommodate jury trials. The Memorandum forecast that that number would increase to 250 courtrooms by November.
With effect from 3 September the Protocol was withdrawn, by which stage 102 courtrooms were able to accommodate jury trials.
On 6 September HMCTS published its recovery plan in a “COVID-19 Update on the HMCTS response for criminal courts in England and Wales”. In a joint foreword, the Lord Chancellor and the Lord Chief Justice said that COVID-19
“has been the biggest peacetime challenge facing our justice system.”
The update indicated that the most significant challenge was the difficulty of accommodating jury trials whilst maintaining social distancing. Extra funding had been provided to support the increased running costs of the courts, the hiring of additional staff, further adaptations to the court estate, and the establishment of further “Nightingale” courts. These are ad hoc courts located in non-HMCTS premises. The aim was to enable 250 courtrooms to be able simultaneously to hear jury trials by the end of October. That goal was reached. On 2 November there were 255 such courtrooms within the HMCTS estate and, in addition, 11 Nightingale Courts available to hear jury trials.
For the purposes of this hearing, Ms Gemma Hewison, Director of Strategy and Change at HMCTS, provided a comprehensive witness statement dated 27 October 2020 which summarised the steps taken by the government and by HMCTS in response to the pandemic with reference to the Crown Court and jury trials. She referred to practical difficulties which affect jury trials during the pandemic. They require the physical presence of the jury, advocates, judge and others, even if some of those who usually attend for the whole of a trial may join remotely for some or all of the time. The governing concern was to...
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