R. v FB (Rev 1)

Sitting in the Crown Court at Woolwich, His Honour Judge Shorrock has adopted a novel and extremely proactive attitude to the way in which he manages cases listed before him and has quashed indictments in those cases which, for whatever reason, he does not believe should have been brought before the Crown Court. The only feature which these three appeals have in common is that Judge Shorrock has taken that approach in each case. Having quashed the indictment (thus bringing each prosecution to an end), pursuant to s. 57(4) of the Criminal Justice Act 2003 (the 2003 Act), he granted leave to appeal to this court pursuant to s. 58 of the 2003 Act.

In the light of the fact that the two later decisions were made at a time when the judge knew that the Crown Prosecution Service (“CPS”) were pursuing an appeal in relation to the first, at the conclusion of the argument, we announced that the appeals would be allowed, the decisions of the judge reversed and the cases sent back to the Crown Court at Woolwich for a fresh trial on the offences charged before a different judge: see s. 61(4) of the 2003 Act. In that way, we have endeavoured to forestall further similar orders. We now provide our reasons.

To set the scene, it is important shortly to describe the allegations (for that is what they remain) in each of the three cases. The first (R. v. FB) is an allegation of robbery. The complainant who acknowledged that she knew the respondent (but denied having been his girlfriend), was withdrawing money from a cash-point when the respondent approached her, took £10 directly from the machine and then removed £5 from her pocket while holding her wrist against her leg with his hand. When he did so, he said to the complainant “Where’s the rest of the money?” When interviewed he said that he had been the complainant’s boyfriend and said that she owed him £100 and that as far as he was concerned this money was part payment of the loan. The complainant denied that there was a loan.

On 23 April 2010, when the matter first came before Judge Shorrock, he required that the case be reviewed by the CPS and made clear that, if it was not dropped, he would consider quashing the indictment with an order for costs. At the later mention, on 28 April 2010, he was told that the CPS had reviewed the case and had decided (following the language of the code test) that there was a realistic prospect of a conviction and that it was in the public interest to proceed; a skeleton argument was put before him in relation to his proposal. Judge Shorrock observed that the prosecution had “no chance of getting a conviction in this case” and that the observations in Connelly v. DPP [1964] AC 1254 came before the Criminal Procedure Rules where the position was “greatly different as far as the availability of public funds was concerned”.

The judge then gave a judgment which did not condescend to deal with the authorities that had been set out in the skeleton argument that prosecuting counsel had prepared (although the judge had earlier said that he had read it). Having reviewed the facts, he went on:

“When this defendant was charged it was obvious that this case would be contested and would have to be tried in the Crown Court. Such an exercise is costly to the public purse. Expense is no bar to pursuing a case if the public interest merits it and there is a reasonable prospect of conviction. This case involves a squabble over £15. This defendant does not have a bad record. I ask rhetorically, how can a case such as this justify the expense of a Crown Court trial? In my judgment it simply cannot.

Even if I am wrong in concluding that there simply is no public interest in pursuing this matter, it seems to me that any sensible reviewing lawyer could do nothing but conclude that there was not a reasonable prospect of success in persuading a Woolwich jury to convict in such a case as this. There is a backlog of trials waiting to be heard at this court. One of the principal reasons for that is the pursuit of cases by the Crown Prosecution Service which are not in the public interest to prosecute or should be pursued in a different form in the Magistrates Court.

… In quashing the indictment, which I now do, I accept that this court is adopting what some might consider to be an unusual approach. However, it seems to me that given the spirit behind the new criminal procedure rules and the fact that public funds are in short supply that it is legitimate for the court to intervene where necessary to prevent waste of scarce resources and undue delay in hearing other more deserving cases.”

R v. AP concerned an alleged breach of a non-molestation order in respect of the respondent’s former partner. On 16 January 2010, the respondent collected his four children and was due to return them that evening. He did not, however, consider that they had sufficient clothing and so broke into his former partner’s house (having apparently checked with the police that he could enter the house) to obtain some more. He then sent her a text message to that effect.

On 1 June 2010, the case came before Judge Shorrock on an application concerned with discovery. He asked why the respondent had not been returned to the County Court on the day that he had been arrested and dealt with for contempt. He asked whether the respondent had a criminal record and was told that there was a history of domestic violence and he had a conviction for assaulting the complainant. Referring to s 57 and 58 of the 2003 Act, he said in a manner that can only be described as peremptory:

“I am going to quash this indictment. It is nonsense having this case here when there is plainly another way of dealing with this which is both faster and will use up a proportionate amount of money because if the case remains in the list, it is not going to be tried until September. The alleged breach was back in January.

In the interim it does not make the individual who takes out the injunction feel any safer. … It does not seem to me that this is a serious breach at all. It is just the sort of breach that should have been dealt with by the county court judge shortly thereafter. As I say, it would not have cost anything like as much as it has to bring this case this far.

For the reasons I have outlined, I cannot see a single reason why this case has been (a) charged in such a way that allowed the defendant to elect trial by jury or (b) if, as you say, it has been reviewed, how the reviewing lawyer came to the conclusion – using his or her common sense and having half an eye to the public purse and also the state of the lists at this court – that this case should continue in this court.”

It is worth adding that, until recently, breach of a non-molestation injunction could only be punished as a contempt of court in the county court. However, by section 42A of the Family Law Act 1996 (inserted by s. 1 of the Domestic Violence, Crime And Victims Act 2004 in force with effect from 1 July 2007), such a breach was specifically designated a criminal offence, triable either way. Thus, the intention of Parliament was specifically to provide for the outcome which the judge criticised. Neither does the judge deal with other possible reasons why the case might not be brought before the county court which could relate to the willingness of the victim or the availability of legal aid.

On the same day, 1 June 2010, Judge Shorrock also had to deal with R v JC. This case, again, concerned breach of a non-molestation order. The respondent was the father of one of the complainant’s four children. The allegation was that he had gone to the complainant’s home on 28 August 2009, and told her that if a DNA paternity test for his daughter showed that he was not the father, he would kill her and whoever was the father. He started to shout and the complainant shut the door on him. The trial was warned for the end of June and the judge had asked for justification from the CPS for the decision to charge. That letter pointed to the terms of the Act and the intention of parliament in creating a criminal offence of breaching a non-molestation order to provide effective deterrence and prevention of domestic violence; the effect of the provision was to give the complainant a choice of how a breach would be dealt with. The letter went on to justify the decision, referring to the threat in the vicinity of the complainant’s child, the propensity of the respondent (who had convictions for common assault and breach of a non-molestation order) and the public interest in preventing further breaches. It also referred to the protection of a jury trial for the respondent.

Again, Judge Shorrock took a peremptory line. He referred to the fact that those accused of these offences would elect trial by jury and referred to the consequent delay because of pressure on the court (which could lead to the circumstance that it would be unfair for a judge to impose the sort of sanction that he would have in mind if the case were dealt with immediately). He went on:

“It is, on the face of it, a contempt of court. It may very well be that the lawyer who wrote this is right in theory, but in terms of practice, it is a complete waste of time charging these cases in this fashion.

He went on to observe that the complainant had no choice in the matter and that one could not infer from the fact that the complainant had called a non-emergency police number that she was particularly shaken or that this was a particularly serious breach. He said:

“I can accept that there are circumstances in which where a defendant has a bad record for doing this kind of thing or that the alleged breach is an extremely serious one that it is appropriate to deal with it in the Crown Court but I simply cannot see that this is such a case. By not taking this defendant back in front of the High Court and proceeding against him in front of the judge on the basis of contempt, what has happened? Many months have now gone by. A disproportionate amount of public money is being spent. Other cases at this court are being held up. The order does not provide any degree of protection or certainty for the complainant. … For all those reasons… I am going to quash this indictment.”

The judge was reminded that the case was in the warned list for that month. Giving leave to appeal the terminating ruling, he said:

“I do not care. You have heard my ruling. This indictment is quashed.”

Based upon the authorities, there is no doubt that the judge had no power to proceed as he did. In R v Chairman of London County Sessions ex parte Downes [1954] 37 Cr App R 148, the Chairman of Quarter Sessions quashed an indictment on the basis that the evidence disclosed by the depositions was insufficient to justify a conviction on any count (which has echoes in the case of FB). The court concluded that the accused must be tried unless the indictment is defective, a plea in bar (such as autre fois convict or acquit), the Attorney General intervenes with a nolle prosequi or the indictment discloses no offence that the court has jurisdiction to try. In terms which might also be addressed to the cases of AP and JC in relation to the breadth of s 42A of the Family Law Act 1996, Lord Goddard CJ observed (at page 152):

“[T]he course taken by the sessions in this case was not warranted by law; it amounts to saying that the court has satisfied itself, not on evidence given before the court but on depositions taken elsewhere, that the accused has a defence. Moreover, if this course were permissible, it would enable a court, the members of which disapproved of or disliked a statute the breach of which formed the subject of the indictment, simply to quash it and decline to try it.”

This decision was approved and followed in Connelly v. DPP (supra). In that regard, Lord Morris of Borth-y-Gest explained the limits of the power of the court in these terms (at page 1301):

“There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.”

That is very different from a power to halt proceedings simply because the court does not believe that the proceedings are appropriately brought. Lord Hodson said (at 1336) that the “inherent power of the court to control its own process, civil or criminal, should not prevent access to the courts when a lawful claim is presented”. Lord Devlin (at 1355) made it clear that ex parte Downs fell short of authority for the view that a vexatious use of process by the prosecution could not be prevented but we read that observation as meaning no more than the power identified by Lord Morris to which we have referred; Lord Pearce (at 1365) made similar observations when he referred to a duty to stop a prosecution which “creates abuse and injustice”.

Connelly was the subject of further analysis in D.P.P. v. Humphreys [1977] AC 1. The case was concerned with the doctrine of issue estoppel following the prosecution for perjury of a man acquitted of driving whilst disqualified on the basis that he had, in fact, been driving at the time. The ratio is that the doctrine of issue estoppel has no place in English criminal law but there is no doubt that the decision went further. Viscount Dilhorne said (at page 24B):

“Where an indictment has been properly preferred in accordance with the provisions of that Act, has a judge power to quash it and to decline to allow the trial to proceed merely because he thinks that a prosecution of the accused for that offence should not have been instituted? I think there is no such general power and that to recognise the existence of such a degree of omnipotence is, as my noble and learned friend Lord Edmund-Davies has said, unacceptable in any country acknowledging the rule of law.”

Viscount Dilhorne went on to consider Connelly and the jurisdiction of the court to decline to hear proceedings on the grounds that they are oppressive and an abuse of process, observing (at 26D):

“A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval. If there is the power which my noble and learned friends think there is to stop a prosecution on indictment in limine, it is in my view a power that should only be exercised in the most exceptional circumstances.”

Lord Salmon put the matter in this way (at 46C-D):

“I respectfully agree with my noble and learned friend, Viscount Dilhorne, that a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene.”

Finally, Lord Edmund-Davies also referred to Lord Goddard’s observations in ex parte Downes (cited at paragraph 13 above) and went on (at 53C):

“Any such assertion of judicial omnipotence must inevitably be unacceptable in any country acknowledging the supremacy of the rule of law. It was equally improper for the trial judges to act as they did in the two last mentioned cases, and it is of constitutional importance to affirm the correctness of the Divisional Court in its condemnation of their conduct. If a judge forms the view that a conviction is unlikely he has his own proper methods of conveying to the jury his estimation of the weakness of the prosecution's case. What he must not do is to prevent them from having an opportunity of forming their own estimation and expressing it by their verdict. As I indicated in Connelly v. Director of Public Prosecutions [1964] A.C. 1254, 1277 it would, for obvious reasons, be highly undesirable to vest any judge with any such power as that.”

A more modern example of an attempt to short circuit the process can be found in Attorney General’s Reference (No 2 of 2000) [2001] 1 Cr App R 36, in which the judge, having failed to persuade the CPS to abandon the case, waited for it to be opened and then effectively directed the jury to acquit on the basis that he thought a conviction unlikely. This court rejected the argument that he was entitled to act as he did, Kennedy LJ making the point that the trial judge “simply did not have the power to prevent the prosecution from calling evidence on the basis that he thought a conviction was unlikely” (paragraph 27).

We have cited extensively from these authorities because they form the bedrock of the modern approach to judicial intervention on the grounds of abuse of process and also point to the limit of that intervention. Neither the judge nor Ms Dhir Q.C. (who represents all three respondents) directly challenge the decisions, although it is argued that the citations to which we refer are obiter and not binding (although in FB one of the reasons proferred by the judge was in identical form to Attorney Generals Reference (No 2) and Miss Dhir does not seek to support that aspect of Judge Shorrock’s decision). What is, however, submitted is that the position is now different and the authorities overtaken by the operation of the Criminal Procedure Rules 2010.

Before turning to these Rules and the authority under which they are made, it is worth considering the distinction that Ms Dhir seeks to advance. There is clear authority (which, absent legislative change, is binding) for the proposition that a judge cannot prevent a prosecution because he believes either a case is not disclosed or a conviction is unlikely. If the judge’s interpretation of the Rules is correct, however, he can quash an indictment on the far wider basis that he does not believe that the prosecution is worthwhile or in the public interest when compared with his assessment of the needs of other cases. That must include cases in which there is, indeed, a case to answer; thus, he can achieve for cases in which he considers that there may be a case to answer (albeit that it is not in his perception of the public interest for there to be a prosecution) an outcome not available simply because he does not think there is a case to answer although (almost by definition) the former must always include the latter. Although we must fully analyse the Criminal Procedure Rules, we start by expressing the preliminary view that such a proposition would be a truly remarkable consequence of an attempt to update procedural rules.

The legislative authority for the Rules is to be found in s. 69 of the Courts Act 2003 and is expressed in these terms:

“(1)

There are to be rules of court (to be called “Criminal Procedure Rules”) governing the practice and procedure to be followed in the criminal courts. …

(3)

The power to make Criminal Procedure Rules includes power to make different provision for different cases or different areas, including different provision–

a.

for a specified court or description of courts, or

b.

for specified descriptions of proceedings or a specified jurisdiction.

(4)

Any power to make [...]Criminal Procedure Rules is to be exercised with a view to securing that–

a.

the criminal justice system is accessible, fair and efficient, and

b.

the rules are both simple and simply expressed.”

It is trite to say that the Rules are concerned only with the procedure to be followed in the courts to which they apply. This is reflected in the language of the Rules which defines the overriding objective (1.1) in these terms:

“(1)

The overriding objective of this new code is that criminal cases be dealt with justly.

(2)

Dealing with a criminal case justly includes—

(a)

acquitting the innocent and convicting the guilty;

(b)

dealing with the prosecution and the defence fairly;

(c)

recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;

(d)

respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;

(e)

dealing with the case efficiently and expeditiously;

(f)

ensuring that appropriate information is available to the court when bail and sentence are considered; and

(g)

dealing with the case in ways that take into account—

(i)

the gravity of the offence alleged,

(ii)

the complexity of what is in issue,

(iii)

the severity of the consequences for the defendant and others affected, and

(iv)

the needs of other cases.”

We must also refer to the way in which courts are enjoined to apply the overriding objective by the Rules, set out in 1.3 in these terms:

“The court must further the overriding objective in particular when—

(a)

exercising any power given to it by legislation (including these Rules);

(b)

applying any practice direction; or

(c)

interpreting any rule or practice direction.”

As for the way in which the court should exercise its responsibilities, it is abundantly clear that the relevant provisions do no more than provide mechanisms whereby the judge can control the case and try to ensure that the parties sensibly focus on the true issues and their expeditious resolution. That much is clear from the duty of the court (at 3.2) and its case management powers (at 3.5) which are in these terms:

“3.2

(1) The court must further the overriding objective by actively managing the case.

(2)

Active case management includes—

(a)

the early identification of the real issues;

(b)

the early identification of the needs of witnesses;

(c)

achieving certainty as to what must be done, by whom, and when, in particular by the early setting of a timetable for the progress of the case;

(d)

monitoring the progress of the case and compliance with directions;

(e)

ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way;

(f)

discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings;

(g)

encouraging the participants to co-operate in the progression of the case; and

(h)

making use of technology.

(3)

The court must actively manage the case by giving any direction appropriate to the needs of that case as early as possible. …

3.5

(1) In fulfilling its duty under rule 3.2 the court may give any direction and take any step actively to manage a case unless that direction or step would be inconsistent with legislation, including these Rules.

(2)

In particular, the court may—

(a)

nominate a judge, magistrate or justices' legal adviser to manage the case;

(b)

give a direction on its own initiative or on application by a party;

(c)

ask or allow a party to propose a direction;

(d)

for the purpose of giving directions, receive applications and representations by letter, by telephone or by any other means of electronic communication, and conduct a hearing by such means;

(e)

give a direction without a hearing;

(f)

fix, postpone, bring forward, extend or cancel a hearing;

(g)

shorten or extend (even after it has expired) a time limit fixed by a direction;

(h)

require that issues in the case should be determined separately, and decide in what order they will be determined; and

(i)

specify the consequences of failing to comply with a direction.”

Ms Dhir argues that active case management includes dealing with cases that should not be in the Crown Court and that in the current climate, judges should not be obliged to grin and bear it when finding their list ‘clogged up’; this is specifically what is meant by “dealing with a criminal case justly … in ways that take into account … the needs of other cases” (see CPR 1.1(2)(g)(iv) of the Rules). How that principle squares with acquitting the innocent and convicting the guilty (in none of the cases it being suggested that there may not be a case to answer) while dealing with the prosecution and defence fairly (as CPR 1.1(2)(a) and (b) require) is unclear.

We have set out the powers described in the Rules at length because they underline both the extent and the limit of what the judge can do. In that regard, we reject the proposition that the overriding objective is a free standing principle of law. It creates the framework against which all the other Rules must be construed or, as Mr Edis submits, it governs the exercise of such powers as the court has. Thus, active management of the case, including the concept of proportionality, furthers the overriding objective. Far from being the exercise of a power to manage a case (the examples of which in CPR 3.2(2) presupposing its continuation), quashing an indictment, as a matter of law, brings it to an end. This is different from the imposition of sanctions for breach of case management decisions which may impact on the way in which a prosecution proceeds: absent abuse of process, however, such decisions do not, on their own, terminate those proceedings.

That the Rules do not either expressly or by necessary implication include a power to alter the established constitutional position in the cases set out above and the limitations on the reach of the Rules is illustrated by R (Kelly) v Warley Magistrates Court [2008] 1 Cr App R 14. This decision concerned the exercise of case management powers to require disclosure of the names of defence witnesses said to be in breach of litigation privilege. The Divisional Court held that there was no power to make such an order. Although dealing with privilege and thus only illuminative of the principle, Laws LJ put the matter in the following way which we also endorse (the emphasis being ours):

“In my judgment a power to require disclosure of privileged material may only be characterised as doing no more than regulating practice and procedure if it forms part of a code (I mean only a series or group of provisions—‘‘code’’ is not a term of art) having that purpose. If such a power is open-ended, not coloured and confined by moderate procedural sanctions for breach, it is likely to be regarded by the courts as an attempt to infringe privilege as such; and that will be unlawful unless strictly authorised by express provision or necessary implication in primary legislation. …

I have referred to ‘‘moderate’’ procedural sanctions. “Proportionate” might be a better term. In my judgment this is an important condition to be met if a rule is to be treated as no more than a procedural regulation. In principle such a rule must provide for no more than might reasonably be required for the proper working of such a regulation. If it goes further, it will not be categorised as procedural only. It will be liable to be treated as purporting to change the general law of evidence. Unconditional orders for disclosure of privileged material plainly exceed this boundary. So, I think, would a rule which absolutely prohibited a party—with no discretion in the trial court—from calling a witness whose identity he had not disclosed in advance. Such a rule would exceed the requirements of a reasonable regulatory regime. Though their validity is not of course dependent on it (since they are found in main legislation) the forthcoming measures contained in ss.6C and 11 of the 1996 Act, together with the code to be promulgated under s.21A, are true regulatory measures.”

As for the impact on the role of the judge, we reject the proposition that he is bound to ‘grin and bear it’; such a characterisation misrepresents his role. Provided the judge does so appropriately, he is perfectly entitled to express his view of a case and to encourage the prosecutor to reconsider the public interest in prosecution always bearing in mind that, pursuant to the Prosecution of Offences Act 1985, the decision to initiate or continue criminal proceedings is vested in the CPS. In that regard, the decisions of the Director, or his delegates, under the Code for Crown Prosecutors (see s. 10 of the 1985 Act) whether or not to prosecute are themselves potentially susceptible to judicial review.

Furthermore, if we were wrong about this, far from assisting in the more expeditious throughput of significant cases at the Crown Court, a power in the judge to prevent a prosecution which he believed unmeritorious or unworthy of the expense of public funds involved would create more delay. If there is a power to prevent a prosecution, the defence could not be prevented from inviting the court to exercise it; satellite arguments would proliferate as to the propriety of pursuing this or that criminal offence at the Crown Court. Neither is it fanciful to suggest that those charged with either way offences of the most insubstantial sort could be encouraged to elect trial by jury simply to permit of the argument that the case is too trivial to justify the cost of jury trial.

Having reached the decision that the judge had no power to take the course that he did, we are reinforced in our view of the common law by a recent decision of this court (coming after the commencement of the Rules but in which they played no part) which refused to endorse a summary approach based upon the judge’s perception of the merits of the case. In R v. N Ltd [2008] 2 Cr App R 27, without any evidence being adduced or agreement as to the facts, the judge concluded that no jury, properly directed, could convict and so directed Not Guilty verdicts. This court confirmed the judge’s responsibility at the conclusion of the prosecution case but rejected earlier intervention, holding that there was a risk that the distinction between the functions of the Crown and the judge would be blurred. Hughes LJ observed:

“Nor do we in the least discourage beneficial active case management by the judge, which may, in some cases, include judiciously expressed views designed to encourage, within proper limits, a course of action by one side or the other, just as it may include directions as to the manner in which evidence will be given. We have no doubt that it is open to the judge, in a proper case, to suggest to the parties that he be invited to rule on agreed or admitted facts in the manner set out in [27]. Providing that the judge is scrupulous to avoid descent into the arena and any claim to control of either side’s case, such case management is desirable and necessary in pursuit of the overriding objective set out in the Criminal Procedure Rules 2005 (SI 2005/384). We are confident that judges have sufficient powers to avoid, without the jurisdiction now in question, the spectre adverted to by Mr Caplan of courts routinely being obliged to listen to weeks of unnecessary evidence when the outcome is a foregone conclusion.. ”

It is unnecessary to consider the factual merits of any of the three cases which are the subject of this appeal because, in our judgment, Judge Shorrock simply had no power or authority to take the course that he did. It is for those reasons that we quashed each decision and remitted the cases back to the Crown Court at Woolwich for a fresh trial on the offences charged before a different judge. It is perhaps necessary to add, however, that we do not accept the validity of the judge’s analysis of the letter from the CPS in relation to the prosecution of JC or that prosecution in these cases is necessarily ineffective.

We would not want to leave the case, however, without saying something about the underlying reason which the judge provided for acting as he did, namely the state of the lists and the ever increasing financial pressures on the court system. We recognise these pressures only too well and recognise also the need for every court to be vigilant so as to ensure that court resources are used as efficiently, as expeditiously and as effectively as possible. It is not, however, for judges to short circuit or ignore well established principles of law in the name of efficiency or to seek to prevent prosecutions properly brought to the Crown Court whether by election for trial or otherwise, from being pursued. Whether steps should be taken to limit the extent to which any particular type of case should be tried by jury is for Parliament.

That is not to say that much cannot be done to improve efficiency and effective use of resources and we can do no better than reproduce the very clear exhortation of, and direction provided by, Judge LJ (as he then was) in R v Jisl [2004] EWCA Crim 696, echoing his earlier observations in R v Chaaban [2003] EWCA Crim. 1012. He said (at paragraph 114):

“The starting point is simple.  Justice must be done.  The defendant is entitled to a fair trial: and, which is sometimes overlooked, the prosecution is equally entitled to a reasonable opportunity to present the evidence against the defendant.  It is not however a concomitant of the entitlement to a fair trial that either or both sides are further entitled to take as much time as they like, or for that matter, as long as counsel and solicitors or the defendants themselves think appropriate.  Resources are limited.  The funding for courts and judges, for prosecuting and the vast majority of defence lawyers is dependent on public money, for which there are many competing demands.  Time itself is a resource.  Every day unnecessarily used, while the trial meanders sluggishly to its eventual conclusion, represents another day's stressful waiting for the remaining witnesses and the jurors in that particular trial, and no less important, continuing and increasing tension and worry for another defendant or defendants, some of whom are remanded in custody, and the witnesses in trials which are waiting their turn to be listed.  It follows that the sensible use of time requires judicial management and control.”