Walpole v Director of Public Prosecutions

MICHAEL SUPPERSTONE QC: This is an application for permission to apply for judicial review of a decision of His Honour Judge McNaught at the Swindon Crown Court on 27th August 2003. It was a decision to extend a custody time limit which was due to expire on 29th August. I have agreed to counsels' request that because of the urgency of the matter I should treat this hearing as being both the permission hearing and the substantive hearing, if permission be granted.

The background to this matter is this. On 26th February 2003 Mr Walpole was arrested together with his two co-defendants. On the following day he and they were charged with drug importation involving a high level of cocaine and cannabis. Rule 5(6B) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 provides for the maximum period of custody and states as follows:

Section 22(3) of the Prosecution of Offences Act 1985 provides that the appropriate court may, at any time before the expiry of a time limit imposed by the regulations, extend or further extend that limit if it is satisfied (a) that there is good and sufficient cause for doing so, and (b) that the prosecution as acted with all due expedition.

There was originally a dispute between the parties as to what happened at the hearing on 27th August. However, counsel have now had an opportunity to listen to the tape of the proceedings and I have very helpfully been provided with an agreed note of the hearing.

The Statement of Grounds for Judicial Review is in the following terms:

The hearing on 27th August proceeded in this way. The application was listed for 2.00 pm. Mr Christie, who appeared before me today on behalf of the claimant, made submissions to the learned judge. There was an exchange between counsel and the judge as to the need for skeleton arguments and a chronology. The judge informed counsel that he was in the middle of a trial and that not having any papers and not having prepared for the application, he could not do it justice in the circumstances. He was not therefore prepared to deal with the application on that day. He said that he could not be 'bounced' into making a decision without any material. After further suggestions from counsel for the Crown as to how the matter should proceed -- and I should say that Mr Mousley QC who appears for the Crown today did not appear on the 27th -- the judge rose to allow the parties time to consider the practicalities and general ability of the court to hear the application later in the week.

On returning to the court Mr Christie asserted for the record, and subsequently repeated the point, that he could not accept that there was a good and sufficient reason for extending the custody time limit, nor that the Crown had acted with due diligence. The judge said that he could hear the application at 4.15 pm that day. However, when time estimates were given for the hearing, the Crown's view was one hour and Mr Christie's half a day, the judge said that he was going to adjourn and that a proper hearing with a time estimate of a half day would be fixed and that he would extend the custody time limit to that time, despite Mr Christie's submissions. As I understand it, after the judge rose and counsel had left the court but not the court building, counsel were informed that the application would be heard on 4th September.

Mr Christie submits that no matter how short the extension of the custody time limit, the criteria set out in section 22(3) of the 1985 Act must be rigorously considered and that shortness of the extension is not a good reason in itself for an extension. Mr Christie referred me to the leading case of R v Manchester Crown Court ex parte McDonald in support of that submission, and in particular he referred me to the headnote, paragraphs 2 and 6, and pages 413, 415, 416, 418 and 421 of the judgment.

Mr Christie submitted that despite having been referred to three authorities on the point to which Mr Christie has referred me, ex parte Stiller, ex parte Schulz and ex parte Marsden, and despite having been told that there was a dispute about whether the Crown had acted with due diligence and expedition, the judge failed to consider these matters or to give any proper judgment on these issues. The decision to extend the custody time limits was, says Mr Christie, based upon the administrative convenience of the court instead of on the statutory criteria. Mr Christie submits that a custody time limits application, as with all applications relating to the liberty of the subject, should be prioritised. Alternatively he submits, and in any event in the light of the authorities that I have referred to and the decision ex parte Cox, a decision to extend the custody time limits cannot be justified given the absence of a trial judge, court and trial date at the time the decision came to be made. In the present case there was no definite date for trial, and no judge or court had been assigned for the trial and in support of this submission Mr Christie referred me to ex parte Schulz.

Mr Mousley for the Crown submitted that there was good and sufficient cause to extend the custody time limits for six days in the circumstances. In extending time for the minimum period the judge must have considered at least in part whether the Crown had proceeded with due diligence. For a case of this size, nature and complexity one would not expect the trial to be listed for some months and Mr Mousley informs me that the Crown's application would have been for a lengthy extension of the time limits. The judge only made a limited extension not being prepared to extend the time beyond six days. I am informed by Mr Mousley that the Crown considered half an hour to be sufficient for the hearing of the application and that they gave that estimate in advance of the hearing. There was no indication from the defence as to how long the hearing would last, although Mr Christie submits that it must have been apparent from the documentation that this was going to be a hearing that would take some little time.

I have the greatest sympathy for the learned judge who was forced in the middle of a trial to decide a difficult application without having had an opportunity to read the papers and without the assistance of any skeleton arguments. It is said that no reason was given by the judge for the extension of time. The obvious inference, it seems to me, from the facts is that it was because in all the circumstances there was not sufficient time to deal with the application properly that day.

In my judgment there was compliance with the statutory criteria for the extension of the custody time limit and the decision of the Crown Court Judge was not Wednesbury unreasonable. The point was arguable and I shall grant permission, but I would dismiss the application for judicial review.

MR MOUSLEY: I am very much obliged, my Lord, and I am grateful to the court for determining this matter at such short notice.

MICHAEL SUPPERSTONE QC: I thank you both for your assistance in this matter.

MR CHRISTIE: May I simply ask -- I think I need to ask for a legal aid determination, or whatever the precise expression is.

MICHAEL SUPPERSTONE QC: Whatever you require Mr Christie in that respect you will have.

MR CHRISTIE: I am grateful. Thank you.