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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gallon v Newcastle Upon Tyne Crown Court & Anor [2006] EWHC 2208 (Admin) (12 July 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/2208.html Cite as: [2006] EWHC 2208 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		12th July 2006

1. MR JUSTICE AIKENS: This is a claim for judicial review of a decision made by HHJ Wood on 11th April 2006. He extended the custody time limits applicable to the claimant on 19th May 2006 until 12th September 2006. When the judge made his ruling, he also had to deal with three other applications to extend custody time limits. They are not the subject of this claim.
2. The matter arises out of an alleged conspiracy to supply class A drugs. There are three counts on the indictment and the case involved 16 defendants. The prosecution case is based on lengthy surveillance of all or most of the 16 defendants and also mobile telephone records which emanate from most of them.
3. The background to the claim for judicial review is as follows: the claimant was arrested on 17th November 2005. He has been in custody since then. The prosecution alleges that the conspiracy concluded in November 2005. The case was sent to the Crown Court at Newcastle under the provisions of section 51 of the Crime and Disorder Act 1998 on 18th November 2005.
4. A preliminary hearing was held on 25th November 2005. It was conducted by HHJ Bolton. She directed that the prosecution should serve its case papers by 27th January 2006. She also made a preliminary fixture of the trial date for 2nd May 2006.
5. There was then a mention of the case before the Recorder of Newcastle on 29th November 2005. He decided that the trial should be in three tranches. He fixed the proposed three trial dates as 2nd May 2006, 19th June 2006 and 10th July 2006. He ordered that the CPS should indicate, within in seven days, how the defendants would be split up as between the three proposed trials. It would appear that not many counsel who were actually involved in the case were able to be present at that mention on 29th November 2005 and that very little regard was or could be taken of trial counsel's availability when those dates were fixed. It would seem, and I accept, that the Recorder of Newcastle was anxious to set trial dates that would, so far as possible, be within the custody time limits. Of course, this being a case to which section 51 of the Crime and Disorder Act applies, the maximum period of custody between the accused being sent to the Crown Court by a Magistrates' Court for an offence and the start of a trial in relation to it is a period of 182 days less any period during which the accused has, since his first appearance for the offence, been in the custody of the Magistrates' Court (see: the Prosecution of Offences (Custody Time Limits) Regulation 1987 SI1987/299, regulation 56(b) as amended). As the case was sent from the North Tyneside Magistrates' Court to Newcastle Crown Court on 18th November 2005, in this case, the custody limits therefore began to run from that date.
6. At the hearing on 29th November 2005, the Recorder of Newcastle ordered that there should be a Pleas and Case Management Hearing ("PCMH") on 13th March 2006. On 22nd December 2005 there was a bail application in chambers before HHJ Wood in respect of the claimant. Bail was refused.
7. All the prosecution case papers were not served on 27th January 2006, as had been ordered by the judge. The prosecution did not seek or obtain any extension of time for the service of the case papers although the CPS should have applied under the Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005 SI2005/902, regulation 3.
8. The bulk of the prosecution papers were served on 24th February 2006; that is to say, about four weeks late. However, at this stage, the prosecution had not served any of the telephone billing records which all parties recognised were an important part of the prosecution's case.
9. The first PCMH was held on 13th March 2006. It was adjourned because counsel for the prosecution, and also the defence, were not ready to proceed. The prosecution indicated that they would serve the telephone billing evidence within seven days. That evidence was therefore due to be served on 20th March 2006. I understand that there was an order of the court to this effect which was subsequently characterised as an order under regulation 3 of the Service of Prosecution Evidence Regulations to which I have referred.
10. In fact, the relevant telephone evidence billing evidence was not served by 20th March.
11. On 31st March, there was a second PCMH which was before HHJ Wood. A transcript of that hearing has been provided for the purpose of today's hearing. The prosecution brought to that hearing a box of materials relating to telephone bills of the defendant. Counsel for the prosecution at that hearing invited defence counsel to identify which records they wished to see. There was much discussion as to how this evidence should be dealt with. Ultimately, HHJ Wood made a further order extending the time in which the prosecution should serve the telephone evidence until 14th April 2006. It is understood that this order was also retrospectively characterised as an order under regulation 3 of the Service of Prosecution Regulations 2005.
12. At the hearing on 31st March most of the discussion was taken up with the question of when the three trials should take place. Ultimately, the judge ordered that the proposed trial on 2nd May should be heard on 19th June and that the second and third trials should be heard on 4th and 11th September 2006 respectively. As a result of these decisions on the trial dates, it was obvious that the prosecution would need to seek an extension of the custody time limits, in particular in relation to the present claimant. It was agreed that the prosecution's application would be heard on 11th April 2006. The judge also fixed the hearing of applications by six defendants to dismiss the charges against them. That hearing was fixed for 11th May 2006.
13. At the hearing in relation to custody time limits on 11th April 2006, there were five applications to extend the custody time limits. In respect of the claimant, the application was to extend the custody time limit from 19th May to 12th September 2006, which was the day after the last trial would have started, which is the trial in which the present claimant was involved. As I understand it, no evidence, either oral or in writing, was put before the judge.
14. The judge gave his ruling immediately following submissions from counsel for all interested parties. He stated in his ruling that he had been referred by counsel to what the judge describes as "the lengthy directions on the subject of custody time limits" which are set out in the current edition of Archbold at paragraph 1 -273.
15. His judgment continues at page 2, line 12, as follows:

"...I do have regard to the criteria there set out down, that is to oblige the Prosecution to prepare cases with all due diligence, to ensure that periods are as short as reasonably practicable and to invest the Court with the duty to control any extensions, and obviously the court is mindful of that, and it is perfectly true to say that in this case the Crown have not complied with all orders so far set by the Court and have not, in the usual way, sought extensions to those orders. However, the overall delay here is about one month, and the case, as I have described, is a complicated one and I am satisfied that the Crown have exercised all due diligence in the preparation of their case."

16. The ruling of the judge then continues at page 2, line 20:

"As far as good and sufficient cause to extend the time limits is concerned, I have considered all the relevant dates that were put to the Court on the 31st March last. I have considered the availability of courts, of the trial judge, of all the counsel who are in the case, and I have come to the view that there is good and sufficient cause to extend both part one of the trial to the 19th June and part two to the 12th September. It seems to me that it is in the interests of justice that the same trial judge should hear all three cases and, if it comes to that, sentence all defendants involved in the same conspiracy, and I am also satisfied that it is in the interests of justice that these trials should have been split into three in the way that they have, so that it is a manageable exercise for a jury to try some of the defendants in each trial.

"The 12th September, I am satisfied, is the first available date for part two of this trial [I think the judge meant part three for that date] to take place, and although it does involve some considerable delay, I am satisfied that it is a reasonable extension in all the circumstances to grant, and therefore I do grant all five of the applications."

17. At the hearing on 11th May 2006 to deal with the applications to dismiss, the judge was asked to look again at the question of the extension of the custody time limits. He said, at paragraph 13 of his ruling, that he had looked at the question again and he did not see any reason to alter his judgment that he had given on 11th April 2006.
18. The relevant statutory provisions concerning custody time limits are to be found in the Prosecution of Offences Act 1985, section 22 as amended, and the Regulations made under that Act. Section 22(1) authorises the Secretary of State to make regulations with respect to any specified preliminary stage of proceedings for an offence, as to the maximum time during which the accused may, whilst awaiting completion of that stage, be in the custody of the Crown Court. (See: Section 22(1)(b)). Section 22(3) of the 1985 Act 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; but the court shall not do so unless it is satisfied -

(a) that the need for the extension is due to..."

(ii) a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more accused or two or more offences; or

(iii) some other good and sufficient cause; and

(b) that the prosecution has acted with all due diligence and expedition."

I have already referred to regulation 5(6)(b) of the Custody Time Limits Regulations 1987 as amended, which sets at 182 days the custody times limits in respect of cases where the accused is sent to trial under section 51 of the 1988 Act.

19. The legislative purpose and the proper construction of section 22(3) of the Prosecution of Offences Act 1985 has been considered in detail in two cases in this court: see R v Manchester Crown Court Ex parte McDonald [1999] 1 WLR 841 and R (Gibson and another) v Crown Court at Winchester [2004] 1 WLR 1623. Mr Adkin referred us to both these cases.
20. At page 846 of the McDonald case, Lord Bingham CJ stated that the Act of 1985 and Custody Time Limit Regulations made under it have three overriding 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."

The Lord Chief Justice described these as "all very important objectives". He emphasised that any judge that made a decision as to the extension of custody time limits must be careful to give full weight to all three of these overriding purposes.

21. In the same case, the Lord Chief Justice said that on an application to the court for an order extending custody time limits beyond the maximum period laid down in the Regulations, it was for the prosecution to satisfy the court on the balance of probabilities that both parts of the requirement, set out in section 22(3)(a) and (b), are met. Only if they were would the court have a discretion to extend the custody time limits; but even then it might not do so; see page 846.
22. At page 847 of the same case, Lord Bingham CJ considered the requirement that the prosecution should have acted with all due expedition within the meaning of section 22(3)(b). He pointed out: (1) that this condition involves the conduct of all elements of the prosecution authority, including the police, solicitors and counsel; (2) that the test is whether the prosecuting authority had used "such diligence and such 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"; (3) in considering whether that standard is met, the court must have regard to all the relevant factors. The Lord Chief Justice said it was undesirable and unhelpful to attempt to compile a list of matters which it may be relevant to consider in a particular case. However, he did note that relevant factors may well include: (a) the nature and complexity of the case; (b) the extent of the preparation necessary; (c) the conduct, whether co -operative or obstructive of the offence; (d) the extent to which the prosecutor is dependent on the co -operation outside his control; and (e) other matters directly and genuinely bearing on the preparation of the case for trial.
23. In the case of Gibson, the Divisional Court had to consider the question of the effect of a failure by the prosecution to show that it had acted with "all due diligence and expedition". The Divisional Court held that even if the court considering the application to extend the custody time limits was not satisfied that the prosecution had acted with all due diligence and expedition, that was not fatal to an application to extend the custody time limits. At paragraph 8 of his judgment, Lord Woolf CJ pointed out that there may be a failure on the part of the prosecution at an early stage in the proceedings which causes no delay and would never cause any delay to the trial hearing.
24. Such delay "would amount to a contravention of the requirement that the Crown should act with due expedition." Nevertheless, Lord Woolf held, following the decision of Lord Bingham CJ in Ex parte Bagoutie, The Times 31st May 1999, that it is for the prosecution that is seeking an extension of the time limits to demonstrate that the need for an extension does not arise from any lack of due expedition or due diligence on his part. Therefore, the court is not obliged to refuse an extension of the custody time limit even if the prosecution is shown to have been guilty of avoidable delay if that delay "has had no effect whatever on the ability of the prosecution and the defence to be ready for trial on a pre -determined date"; see paragraph 14 Lord Bingham CJ's judgment in Ex parte Bagoutie.
25. In the outline argument of the claimant in this case it is not suggested that HHJ Wood was in error in concluding that the prosecution had satisfied him that the need for an extension of the custody time limit was due to "some other good and sufficient cause". Instead Mr Adkin, in his written and oral argument, concentrates on the second requirement in section 22(3)(b) of the 1985 Act; ie. that the prosecution had to show it had acted with all due diligence and expedition. Mr Adkin submits that it is clear from the transcript of the hearing on 31st March 2006, when there was a discussion about trial dates, that Ms Moreland, the prosecution counsel, conceded that 2nd May was too soon for a trial date because of the work that had to be done in order to get the case ready for trial. He pointed to the submissions of a number of defence counsel to the same effect. Emphasis was placed by defence counsel on the fact that there were 161 videos that had to be considered by them, although no video evidence was relevant to the present claimant. There was also (and Mr Adkin emphasised this) the very large quantity of evidence concerning telephone billing of the various defendants which had not been formally produced and served even by the time of the hearing of 31st March 2006. The judge did, of course, conclude that the case could not be properly prepared by 2nd May.
26. Mr Adkin submits that the reason the case could not proceed on 2nd May was the lack of diligence of the prosecution in the preparation of the case up to the PCMH on 31st March. He submits that it was manifestly wrong of the judge to conclude that the Crown had exercised all due diligence in the preparation of their case up to the time of the application for the extension of custody time limits. Mr Adkin submits that any argument that a lack of due diligence in the preparation of the case did not cause a delay in the trial date could not be sustained.
27. We have not heard oral argument from Mr Moran on behalf of the Crown Prosecution Service. However, we have had the benefit of his outline argument, in which he accepts that the prosecution served statements and interviews in the case four weeks late. He also accepts that: (1) no extension of time was sought by the prosecution for the time in which to serve those documents; (2) the PCMH on 13th March 2006 had to be adjourned because counsel were not ready; (3) the prosecution had failed to comply with an order made on that occasion to serve the telephone record within seven days; (4) no explanation of the failure to serve prosecution papers was ever given to the court and, (5) that there was no proper service of the telephone evidence, even by the time of the second PCMH on 31st March 2006.
28. Mr Moran, in his outline argument, submits that these failures by the prosecution to comply with the orders of court as to the time in which documents should be served, although reprehensible, do not amount to a failure to exercise due diligence and expedition as to the preparation of the case. He points out that the case is a complex one involving 16 defendants, is concerned with conspiracies which are alleged to have lasted over a year and that there is a large amount of documentary and video evidence to be considered and prepared for trial.
29. Accordingly, Mr Moran submits that the judge was reasonable to make the conclusions that he did.
30. At paragraph 38 of Gibson, Lord Woolf considered the proper approach of the Divisional Court when reviewing the decision of a judge in relation to the extension of custody time limits. Lord Woolf said that when the matter comes before the reviewing court, it must scrutinise the decision of the original court "rigorously". However, Lord Woolf also emphasised that the decision was for the judge in the court below to make and that the Divisional Court would only interfere if it concluded that the judge below wrongly exercised his discretion.
31. We have scrutinised the original decision of HHJ Wood rigorously. It is clear to us that: (1) the original date fixed for the trial for the seven to ten days on 2nd May was over -optimistic; (2) the reason that the original trial date could not be kept was that the trial could not properly be prepared by then; (3) the reasons for that were (a) it became clear that the trial would take far longer and would have to be split into three in any event; (b) there was too much material to be absorbed by counsel, in particular the video material of 161 videos, before 2nd May; (c) the telephone billing also had to be reviewed and that could not be done in the time available; (d) the telephone evidence had been served late; (it should have been served on 27th January but was not in fact served until after the second PCMH on 31st March); (e) counsel and a court and the one judge, who would have to try all three of the trials, could not be available earlier than the dates that were actually fixed by the judge on 31st March 2006.
32. Mr Adkin has submitted that it is not known why the telephone billing material was served so late. It could have been the fault of the telephone companies to co -operate in producing the material; it could have been the fault of the CPS. Mr Moran did inform us today that he could not speculate on which of the reasons it could be. He accepted that there was no evidence before either HHJ Wood or this court as to why the telephone material was served so late.
33. I accept that there is no evidence before this court and that there was no evidence before HHJ Wood to explain the delay in serving the telephone billing material. There was no doubt that it was late. In the absence of an explanation, I would be prepared to say that in that respect the CPS has not discharged the burden of showing it used due diligence and expedition with regard to the preparation of the case so far as that material is concerned. However, the question is then whether that failure resulted in the trials being put back in the way that they were. In my view, that may have been one cause but there were very many other causes as well. In my view, even if that telephone material had been served on time, or even a little later than the original date of 27th January, it is abundantly clear that the original dates for the trials could not have been kept. That is because the trials were too complicated, there was too much material to review other than the telephone billing material, in particular the videos, and that the counsel and the court and the judge could not be available to deal with these cases properly at the times that had originally been fixed.
34. Accordingly, I am satisfied that any failure on the part of the Crown Prosecution Service in relation to telephone billing material was not causative of delay as to the trial dates, which had to be changed, as recorded in the decision of HHJ Wood on 31st March. Therefore, I conclude that the judge was entitled to come to the view that he did and he was entitled to extend the custody time limits.
35. This claim must therefore be dismissed.
36. LORD JUSTICE MAY: I agree that this application should be dismissed. In particular, I agree that the proper application and decision of this court in the case of Gibson justified the discretionary decision which the judge made, for the reasons which my Lord has given.
37. Thank you Mr Moran. Thank you very much.
38. MR ADKIN: Can I assume - - I do not think my learned friend Mr Moran seeks an order for costs against the claimant, Mr Gallon. I have done a draft order in terms of costs that there be no order for costs save for an assessment of the costs of the claimant, to be paid out of the community legal services.
39. LORD JUSTICE MAY: Mr Moran, that is right, is it?
40. MR MORAN: Yes, my Lord.
41. LORD JUSTICE MAY: Thank you very much. If you would like to discuss with the associate the exact terms of the order. Thank you very much.