Pierens, R (on the application of) v Customs & Excise

MR JUSTICE STANLEY BURNTON: This is an application by Patrick Joanna Emile Pierens for the judicial review of a decision made by HHJ Matheson, on 13th June 2003 at Middlesex Guildhall Crown Court, to extend his custody time limit, which otherwise would have expired on 16th June 2003. The claimant is charged with fraudulent evasion of a prohibition on the importation of goods, contrary to the Customs and Excise Management Act 1979. The prohibition relates to a class A controlled drug, namely cocaine, which was found on him when he arrived at Waterloo Station International Terminal.

The jurisdiction to extend custody time limits is to be found at section 22(3) of the Prosecution of Offences Act 1985, which provides:

The history of the case is helpfully summarised in an agreed chronology. The claimant (the defendant in the criminal proceedings) was arrested on 24th April 2002 at Waterloo. He appeared before the Magistrates' Court two days later, and pleaded guilty. On 9th July 2002, his committal for sentence was adjourned for a week at the request of the defence. On 16th July 2002, he changed his plea to one of not guilty, and the case was then remitted back to the Magistrates' Court. On 12th August 2002, his case was committed to Middlesex Guildhall Crown Court, and his plea in the directions hearing took place on 23rd September 2002. The case was then placed on the warned list on 28th October 2002. As matters then stood, there appeared to be no reason why the case should not start well within the original custody time limit.

However, on 16th November 2002, the defence requested the removal of the case from the warned list because the defendant had identified two Dutch witnesses, whom he wished to give evidence. The case was refixed for 27th November, having regard to the exploration of the original custody time limit on 2nd December 2002. On 15th December 2002, the defence again applied to break the then fixture because the Dutch authorities required a translation of the letter of request. As a result, custody time limits were extended by HHJ Matheson to 3rd January 2003, and the fixture was again broken. It would appear, at that date, that the defence had put themselves in a position where, subject to obtaining the evidence that they sought, they might be ready for trial. As I have already indicated, there is no complaint raised as to the conduct of the prosecution. Therefore, the period between 26th April and mid-December had passed without, so far as the defence was concerned, the case apparently progressing forward.

On 20th December 2002, a further application to extend the custody time limit was granted, extending the time limit to 24th January 2003. It was arranged that the case would be listed for mention on 17th January 2003 because the defence was still waiting to hear from the Home Office as to the results of the letter of request to the Netherlands. In due course, on 17th January 2003, the case was again adjourned on the application of the defence, to be re-listed on 22nd January. That hearing was adjourned because no interpreter was available. On the following day, there was an application to extend the custody time limit. It was granted, and the custody time limit extended to 25th April 2003 and the case fixed to start on 23rd April 2003, no doubt because of the anticipated delay before the production of evidence under the Dutch letter of request. HHJ Matheson QC, on that occasion, required the case to be mentioned on 14th March 2003, no doubt with a view to keeping an eye on its progress.

As it happens, on 14th March 2003, Dutch witnesses, the witnesses envisaged and indeed named by the defence, were interviewed in Amsterdam with representatives from both prosecution and defence present. As a result of the information obtained in those interviews, the defence decided that they should seek and, if possible, obtain from the Belgian authorities further evidence. On 21st March 2003, an application was made for a letter of request for Belgium. On 15th April 2003, a defence application to break the then fixture was again granted. On that date, a final draft in translation of the letter of request to the Belgian authorities was provided to the court. The trial was again placed on the warned list, this time for 9th June 2003.

On 23rd April 2003, there was a further order extending custody time limits: the custody time limit was extended to 16th June 2003. On 21st May, Middlesex Guildhall Crown Court transmitted the letter of request in draft and in translation, which it had received on 15th April, to the Home Office. On 2nd June 2003, the case was listed for mention at the request of the defence, to clarify the position relating to the receipt of material from the Netherlands and an update on responses to the Belgian letter of request. It was then discovered that the Belgian letter of request had not been expeditiously sent by the court to the Home Office. The case was removed from the warned list, and listed as an application for extended custody time limits on 13th June 2003. On the following day, the prosecution gave notice of their application to extend custody time limits further. On 13th June 2003, HHJ Matheson QC granted the application to extend the custody time limits, and extended them to 25th August 2003. The case had been placed on the warned list for 18th August 2003.

On 13th June 2003, Mr Fidler, who appeared also on that occasion on behalf of the claimant (defendant), objected to a further extension of custody time limits. As I have already indicated, he accepted that the prosecution had acted with due diligence. However, he submitted that there was not a good and sufficient cause to extend custody time limits, because the need to do so had been occasioned by the failure of Middlesex Guildhall Crown Court Office to remit the draft letter of request to the Home Office as soon as practicable after 15th April 2003. It is, I think, not disputed on behalf of the prosecution, that is HM Customs and Excise, that the court office should have remitted the letter of request in draft to the Home Office within a reasonable time of its being provided; and the Crown Court having made the requisite order, that should have been done within, say, seven days or less, of 15th April 2003. Instead, that was not done until 21st May, some five weeks later. In those circumstances, Mr Fidler submitted, and submits, that the court could not be satisfied that there is good and sufficient cause to extend custody time within the meaning of the statute. Mr Fidler also submits that no order for an extension should have been made by the judge in circumstances where he had no information as to the result of the transmission of the letter of request to the Home Office, and did not know whether the court or the Home Office were pursuing the action in question by the letter of request, on the part of the Belgian authorities that is, or, presumably, when Middlesex Guildhall Crown Court might receive the product of the letter of request. So Mr Fidler criticises the court office in the Crown Court a) for its initial delay, and b) for a failure to pursue, or, as he puts it, "chase up" the matter of the letter of request.

In his submissions, Mr Fidler has argued that on an application such as that before the court on 13th June 2003, the court should concentrate on the last period of the proceedings with a view to ascertaining why, on the occasion that the matter is before the court, an extension of time is then required. If, therefore, there has been previous delay which was unexceptionable, on that basis the court must refuse to extend custody time limits, if there has been a period of delay immediately before the application to extend custody time limits, that is, for example, the fault of the court administration. He submits that, just as a failure diligently to seek a judge or a court room before an application is made to extend custody time limits, with the result that an application has to be made, will not in general be a good and sufficient cause, so the failure promptly to dispatch the letter of request to the Home Office cannot constitute good and sufficient cause.

The judge accepted, for the purposes of his decision, that there had been some fault on the part of the Crown Court. However, he did not focus on the last period of delay leading to the application for an extension, but he considered the entirety of the period in question. He said this:

I infer from that that the judge did have regard to the fact, which he assumed that there had been delay brought about by default of the court office, but that he had regard to that delay which was, as he said, "relatively small in the overall pattern of things", in the light of the entire period of the proceedings and the fact that the delay in question had occurred in the context of applications by the defence for letters of request to attain evidence on behalf of the defence.

My attention has been taken by both sides to the decision of a Divisional Court in Re C, reported at [2000] Justice of the Peace Reports, page 693. That was a case concerning the adjournment of a trial by the Youth Court. In that case, the Divisional Court had to consider the same provision as in the present case. In that case, as a result, it appears, of difficulties in listing, which could be attributed to a failure of sensible administration by the Youth Court, counsel for the defendant found herself compelled to ask for an adjournment. The Divisional Court upheld the order made by the Youth Court for an adjournment, extending time limits, on the basis that the magistrates were entitled to rely on the fact that there had been an application for adjournment on the part of the defence. That, of itself, constituted a good and sufficient cause, notwithstanding that the application was itself brought about by, arguably, a default on the part of the court administration.

In my judgment, that case is of some but limited assistance in the present context. The real issue in the present case is whether the judge was right to examine the entirety of the period in question, that is to say from 24th April 2002 to 13th June 2003, and looking at that entire period and the applications made on both sides, so far as trial date was concerned, and their reasons, to determine whether or not there was good and sufficient cause, or whether he should have focused solely on the immediate cause, so it was said, of the application on 13th June 2003.

Like the Divisional Court in McDonald [1999] 1 WLR 841, I would be slow to prescribe any general rule of relevance in the present context. However, it seems to me that in many cases it will be right to take into account an entirety of the period of the proceedings. The present case provides a stark illustration of the need to do so. There was a period of eight months between the plea of guilty in the Magistrates' Court and the first request to remove from the warning list. The fact that the case did not come to trial during that period without any need for an extension time limits was entirely due to a) a change of plea, and b) delay, (which in the present context does not connote any fault on the part of the defence) in making their request for evidence from witnesses in the Netherlands. A further month was lost because there was a requirement that the letter of request be translated into Dutch. That was a matter which could have been, and no doubt henceforth will be, known to defence solicitors, having regard to the increasing frequency with which letters of request are required by the defence in all proceedings. The entirety of the delay was, as the judge mentioned, occasioned by defence applications. In the context of the entire period of delay, the five week period between 15th April and 21st May was relatively small.

In my judgment, the judge was entitled to look at that in the context of the whole in deciding whether, looking at the matter as a whole, there was good and sufficient cause for an extension of time limits. It is not for me to say whether or not the decision the judge made was one that I would have made. This is a court of review, which is limited to deciding whether or not the court below took into account matters which it should not have taken into account, failed to take account relevant matters, or made a decision that was irrational. It seems to me that the judge did take into account the fact that there had been delay on the part of the court. He took into account the effect of that delay. There are no matters which he failed to take into account. He was entitled to take into account, broadly speaking, what the cause of the delay was. His decision, while not one which was dictated by the facts before him, was within the range of decisions open to him.

In my judgment he was not required either to defer the decision or refuse the decision because no steps had been taken to chase up either the Home Office or the Belgian authorities. There really was not the material before him from which it would have been right to conclude that there had been any fault in that regard.

In those circumstances, not without some hesitation, I have come to the conclusion that the decision of HHJ Matheson is not one which is liable to be quashed.

MR BUDWORTH: My Lord, I am not sure in these circumstances, as respondent, whether there is any position for me to make an application for costs incurred by Customs and Excise.

MR JUSTICE STANLEY BURNTON: I am sure there is provision for you to make an application -- is this a publicly funded application?

MR FIDLER: My Lord, yes, it is. Any order will be subject not only to taxation but to (inaudible), if I may put it that way.

MR JUSTICE STANLEY BURNTON: You need a certificate.

MR FIDLER: I need certification that my costs will be assessed.

MR JUSTICE STANLEY BURNTON: You certainly have a certificate. Is that application for costs pursued?

MR BUDWORTH: I think, in the circumstances, no.