Khan, R (on the application of) v Wolverhampton Crown Court

J U D G M E N T

1. MR JUSTICE MAURICE KAY: This is an application for judicial review of a decision of HHJ McCahill QC at Wolverhampton Crown Court on 4 September 2003, to extend custody time limits in relation to this claimant. The background to the case is that the claimant is charged with two offences of wounding with intent to cause grievous bodily harm. The events giving rise to that prosecution occurred in August 2002 and September 2002. The claimant was charged and remanded in custody on 8 March 2003. The case was transferred to the Crown Court and a preliminary hearing was held on 17 March. Not guilty pleas were indicated and the case was further listed for plea and directions on 9 June. The plea and directions hearing was adjourned to 23 June. On that occasion not guilty pleas were entered and, at some point, the trial was fixed for 5 August.

2. Originally the time estimate on the case was one of two to three days, but that has lengthened as matters have developed, and it is now said to be five days as an estimate, but without a guarantee that that estimate would not be slightly exceeded. All was set, therefore, for 5 August which was a Tuesday. On the previous Friday, 1 August, an application was made to break the fixture. It was an application made on behalf of the claimant. The application was refused. Before refusing it, the judge obtained confirmation from the listing office that the matter would indeed be able to proceed on 5 August. That remained everybody's understanding until late in the day on 4 August when the parties received telephone calls from the listing office to the effect that the case was being taken out. It is not possible to be precise as to the events which gave rise to that. It is certain that another case which had been listed before the trial judge on the Monday had taken effect as a trial, although the listing office had been of the view that a trial was unlikely. What is not quite certain is when that Monday case had come into the list. There is a small piece of information to the effect that it was of recent origin, in that the clerk of the court, on 4 September, is recorded on the transcript as telling the judge that:

"On the Monday things came into the court list which they confidently expected would not be proceeded with, but which were and became trials, and as a result, they ended up without a court to put it into."

3. As at the end of the day on 4 August the position, therefore, was that the fixture had been broken by the listing office, but no further date had been given for the trial. Custody time limits were due to expire on 5 September. There is nothing before me that establishes any attempt on the part of listing to fix the case again during the month of August. Obviously, as 5 September came closer, the prosecution were concerned about custody time limits and on 4 September they made the application which resulted in the decision which is the subject of challenge in this case. It is suggested on behalf of the claimant that there was some drift in the listing office in connection with the listing of this case between 4 August and the end of that month. That seems to me to be a reasonable inference.

4. When the matter was heard as an application to extend on 4 September, counsel for the prosecution set out the procedural history with clarity. Clearly there had been some discussion shortly before the case came on with the listing office which had resulted in the possibility that the trial might be listed not at Wolverhampton, but at Kidderminster on 15 September. However, that possibility was considered inappropriate by the prosecution and for that matter by the defence.

5. Notwithstanding my historic familiarity with Wolverhampton Crown Court, I know nothing of Kidderminster Crown Court, but I am told by counsel that it is in the form of an old debating chamber with poor security provision, and the present case is one which is said to have emerged from a background of drug dealing, although it is right to observe that the claimant has a very modest criminal record. Everybody appears to have accepted, therefore, that Kidderminster was out of the question.

6. As counsel for the prosecution outlined the case to the judge, she made it clear that there had been no undue delay on the part of the prosecution who had been ready for trial for months and had acted at all times with due diligence and due expedition. That is wholly accepted by the defence. In other words, what she was suggesting to the judge was that his task did not necessitate any investigation into the way the prosecution had approached the case because that had been flawless. That proposition is not and never has been in dispute.

7. In order for custody time limits to be extended, the judge has to be satisfied on a balance of probabilities, (a) that there is good and sufficient cause for an extension, and (b) that the prosecution has acted with all due expedition. That is the requirement imposed by section 22(3) of the Prosecution of Offences Act 1985. It follows from what I have said that in this case, the issue was one of "good and sufficient cause".

8. In making her submissions to the judge, which are all recorded on the transcript, it would be difficult to say that the prosecution counsel identified a good and sufficient cause. Rather she explained the background, properly exculpated the prosecution and left it to him. When counsel for the defendant addressed the judge, he confirmed that there was no issue as to the due expedition of the prosecution and he confirmed the inappropriateness of Kidderminster. He relayed to the judge the fruits of his investigation to the effect that the only other available date was 12 January 2004 at Wolverhampton. During his submissions, counsel explained that no reasons had been given as to why the case had been taken out on the day before the trial. Accordingly, the judge asked the court clerk to make inquiries of the listing office. A reply came back "there was no court space available". Later on, in the course of counsel's submissions, the transcript records the judge asking the court clerk:

"Could another phone call be made please to inquire why on 1 August the matter was to remain as a fixture for the 5th and yet it came out on the 4th?"

9. The clerk's reply, following the phone call was:

"Your Honour, the art of the listing office is to balance the probabilities and on 1 August they were confident they would have space for it. On the Monday things came into the court list which they confidently expected would not be proceeded with, but which were and became trials, and as a result they ended up without a court to be put into."

No further inquiry took place.

10. In his ruling, the judge, having set out the factual background, concluded:

"In my judgment, there is a need for extension which is due to some good and sufficient cause."

He added:

"The art of clerking barristers, just as that of listing in Crown Court, is an art, it is not a science, it is not capable of precise prediction. It is a judgment which has to be exercised and I am satisfied that the judgment which was exercised in this case on 1 August that this matter could be dealt with on the 5th, was one made bone fide and on reasonable grounds -- I repeat, on reasonable grounds -- and that the circumstances changed in an unforseen way on 4 August, which occupied the court and the judge time, making the expected availability no longer viable for this case."

11. Following his ruling the judge said he was then going to make inquiries to see whether any alternative possibilities might arise. It seems that a possibility opened up of a listing in Wolverhampton on 15 September before a Recorder who was only available for five days, but counsel for the defence advised the court that although that was the estimate, it could not be a guarantee. At that time nor had there been any check about witness availability for that date. It seems also that counsel briefed to appear at the trial had a diary conflict for that day, but the judge was suitably unimpressed by that latter point.

12. Accordingly, the matter was listed for 12 January and custody time limits were extended to 17 January. I observe that the discussions about the possibility of a trial before a Recorder in Wolverhampton on 15 September, postdated the ruling in this case and played no part in the judge's reasoning when he ruled upon extension. What I now have to consider is whether the judge's ruling on "good and sufficient cause" is one that is susceptible to judicial review on public law grounds. It is as well to remind oneself of the words of Lord Bingham, then Lord Chief Justice, in R v Manchester Crown Court ex parte McDonald[1999] 1 Cr App R. 409 at pp.418-419, where he observed that the Administrative Court:

"Has no role whatever in deciding whether in any case an extension should be granted or not. Its only role . . . is to see whether the decision in question is open to successful challenge on any of the familiar grounds which support a application for judicial review."

He also observed that this court should show restraint about disturbing first instance decisions of this kind.

13. The case for the claimant is put essentially on the ground that the judge's ruling was flawed because he did not carry out the rigorous investigation into the circumstances which was necessary in the circumstances. In R v Stoke on Trent Crown Court ex parte Marsden unreported 24 September 1998, Laws J was considering an application such as this and he said:

"This Court has been provided with no information about the exigencies of the other case. I do not know whether if that fixture had been broken and that case adjourned, difficulties over custody time limits would have arisen remotely comparable to the difficulties in this case. I do not know what reasons for maintaining the other fixture might have been more pressing than the obvious reasons for maintaining this one.

"I bear strictly in mind that I am exercising the High Court's supervisory jurisdiction and not myself deciding whether there was good or sufficient cause. But, in my judgment, this is a very stark case. In such a case as this, it is incumbent on the Crown Court or the prosecutor respondent to place material before this Court upon which it may be satisfied that it was reasonable, within the limits of the Wednesbury principle, to hold that there was good and sufficient cause for the extension to be granted . . .

"I am not prepared to assume, on the material I have, there must have been a good and sufficient cause here . . .

"There is not sufficient material before me to allow me to decide that the extension granted was based on a reasonable view of good and sufficient cause and I therefore hold that it was not."

14. There were many similarities and some difference between that case and this, but it highlights the importance of basing decisions in this area on a sufficiency of information. Further support for that proposition is to be found in R v Preston Crown Court ex parte Barraclough [1999] Cr App R where it was held that:

"Although unavailability of a judge or courtroom could be good and sufficient cause to extend custody time limits, it was for the prosecution to put before the judge reasons why it was not possible in a sensible world to try the case before the date listed. The judge then had to make a rigorous examination of the circumstances. That inevitably should have led to an inquiry into why it was said to be impossible to have an earlier trial date."

15. In the commentary in the Criminal Law Review, the commentator adds:

"It has been emphasised on many occasions that applications for custody time limit extensions must be scrutinised carefully since they involve infringement of the defendant's liberty beyond the maximum time prescribed by statute. The scrutiny ought, it is submitted, to be at its most rigorous where the application is based on the unavailability of a court (see also R v Central Criminal Court ex parte Abu-Wardeh[1998] 1 WLR 1083).

16. In the present case, in my judgment, there is a conspicuous vacuum in the information which was gathered by the judge and is now before this court as to what occurred on 4 August. There is no information at all about the case that had proceeded on the Monday, save that it is said that that was contrary to expectation. I know not precisely when that case had been listed on the Monday. I know nothing of the seriousness of that case, of the circumstances of the defendant or witnesses, or whether on either side children or young persons were involved, whether the defendant or defendants was or were in custody and if so for how long. I know nothing whatsoever about its previous listing history. One accepts that listing offices in busy Crown Courts such as Wolverhampton have a very difficult task, but there is no material before me which enables me to come to any conclusion other than that an enormous gamble was taken about the possibility of this case starting on Tuesday, 5 August, notwithstanding that it had been fixed for that date since June and confirmed as a fixture only two working days before when the application to break the fixture had been refused on the basis of information from the listing office. The learned judge does not appear to have made any inquiry as to why the demands of that other case prevailed over this case.

17. There is no doubt that listing difficulties can be a good and sufficient cause for extending custody time limits. That was referred to by the Lord Chief Justice in ex parte McDonald at page 415D where he said:

"The courts have held, although reluctantly, that the unavailability of a suitable judge or a suitable courtroom within the maximum period . . . may, in special cases and on appropriate facts, amount to good and sufficient cause for granting an extension."

18. A good example of that has been placed before me in the form of a transcript of the judgment of Collins J in R v Crown Court at Minshull Street ex parte S where he said:

"It seems to me that it is quite impossible to say that an error made by the court, or indeed by anyone, is incapable of giving rise to a need to extend custody time limits within the meaning of section 22(3). Everything will depend upon the circumstances of a particular case. But I do take the view that if delay is caused by administrative error, then the court must do everything that it conceivably can to minimise the effect of that error so that if there are difficulties in listing a case which has had to be put out because of such an error, those difficulties will not prevail with the court unless it can be shown that they really are insuperable. Secondly, as it seems to me, the judge who decides whether there is a need to extend must have regard to the nature of the error which has led to the request for an extension. If it be an administrative error, then he will be the less easily persuaded that it amounts to a good and sufficient cause for an extension. However, I reject the submission that it is incapable in law of amounting to a good and sufficient reason."

19. In my judgment, however one approaches the present case, it is impossible to avoid the conclusion that, at the point when the judge ruled that there was good and sufficient cause, he did so without having carried out a sufficiently rigorous inquiry as to the way in which events had developed. When he made that ruling, he did not know when the case was certain to be listed -- the Kidderminster option having been rejected and the 15 September limited Wolverhampton option not yet having been placed before him. He had insufficiently informed himself as to the events of 4 and 5 April, and the provenance of the misjudgment that had occurred in the listing office.

20. In my judgment, he came to a conclusion on the basis of an insufficient investigation in circumstances which were Wednesbury unreasonable. I have sympathy with him because these are difficult situations and where somebody charged with serious criminal offences has been properly remanded in custody, it is unfortunate, to say the least, if misjudgments of the kind that occurred in this case result in custody time limits not being extended. However, having carefully considered the matter, I have come to the firm conclusion that the judge did err in his approach to the case. That is all that I have to consider, and in those circumstances, his decision must be quashed.

21. That of course leaves open what happens next. The question of any conditions of the bail will arise. Has it been discussed?

22. MR DANESHYAR: It has been discussed. The prosecution would like the following conditions: not to interfere or contact prosecution witnesses; an address out of the area, and I believe there may be one available in Derby, but certainly one can be checked out.

23. MR JUSTICE MAURICE KAY: Did everything happen in Wolverhampton? He comes from Walsall, does he not?

24. MR DANESHYAR: Yes, everything happened in fact in Duddly, therefore in any event Walsall is out of the area, albeit it is not too far. An alternative condition would be not to enter Duddly.

25. MR JUSTICE MAURICE KAY: If you can find him an address in Derby, would it not be better to say: not reside in or enter West Midlands save to attend court.

26. MR DANESHYAR: The difficulty is this. Recently the claimant's wife has had a child. She is only 2 months old. It may be that it would have been easy for just two people to move to Derby, but the whole family may be a bit more difficult.

27. MR JUSTICE MAURICE KAY: The incidents may have taken place in Duddly, where are the prosecution witnesses from? Where do they live?

28. MR DANESHYAR: One does not know.

29. MR JUSTICE MAURICE KAY: You do not know, obviously, but do they live in Duddly or Wolverhampton?

30. MR POVOAS: I am being told they live in Duddly.

31. MR JUSTICE MAURICE KAY: Which is next to Wolverhampton.

32. MR POVOAS: Which is next to Wolverhampton.

33. MR JUSTICE MAURICE KAY: Where is the claimant's home normally?

34. MR DANESHYAR: It is in Walsall.

35. MR JUSTICE MAURICE KAY: I am a veteran of the M6, do not worry. What do you say about conditions? Would the prosecution be contend with his residing in Walsall?

36. MR POVOAS: No, the suggestion was to reside outside the West Midlands. There has been the problem with the intimidation of a witness who was the victim of one of the two offences. There are two people who associate with the defendant and have done since he has been in custody who are currently charged with witness intimidation of that person and assaulting him. So it really is our firm submission that we would like him addressed outside the area, right away from where the victims live.

37. MR JUSTICE MAURICE KAY: Can I leave you to consider this over lunch. Discuss it and make such inquiries as you can and you can tell me at 2 o'clock?

38. MR DANESHYAR: My Lord, yes.

39. MR POVOAS: Very well.

40. MR JUSTICE MAURICE KAY: Were there to be other conditions?

41. MR POVOAS: Put very simply: surrender passport; not to apply for travel documents; a curfew from 7pm to 7am -- the doorstep provision.

42. MR JUSTICE MAURICE KAY: What is a doorstep provision?

43. MR POVOAS: If a policeman requires him to come to the door during a curfew period he should do so to check that it is being complied with.

44. MR JUSTICE MAURICE KAY: That is a common form of bail condition now, is it?

45. MR POVOAS: It always has been from my experience.

46. MR JUSTICE MAURICE KAY: Doorstepping takes on a new meaning.

47. MR POVOAS: Indeed. Finally, daily signing on at a police station. No contact is obviously mentioned.

48. MR JUSTICE MAURICE KAY: Of course which police station will depend on where he is residing. Could you give some consideration to residence between now and 2 o'clock and we will see whether we can tidy it all up then. Thank you both very much.

49. MR POVOAS: Thank you, my Lord.

Short Adjournment

50. MR JUSTICE MAURICE KAY: Yes, have further inquiries been made?

51. MR DANESHYAR: My Lord, yes. The address that is available is 32 Rawlingson Avenue and that is in Normington, Derby. The nearest police station to that is Cotton Lane Police Station, again in Normington. So far as the curfew is concerned, due to the fact that it is Ramadan and the need to go to a mosque in the evening, will be between the hours of 10.30pm to 7.00am, except for the last 10 days which is envisaged to start on Friday 14 November whereby the curfew will be lifted for those last 10 days of Ramadan.

52. MR JUSTICE MAURICE KAY: Lifted from 14 November to 25 November. No curfew at all in that period?

53. MR DANESHYAR: My Lord, yes.

54. MR POVOAS: Can we say lifted for the sole purpose of all night congregational prayer, which is the reason why it has been lifted?

55. MR JUSTICE MAURICE KAY: Yes.

56. MR DANESHYAR: Daily reporting at Cotton Lane Police Station between 12.00pm and 2.00pm, and also to surrender whatever passports he may have in his possession and not to apply for a new one.

57. MR JUSTICE MAURICE KAY: -- or international travel documents.

58. MR DANESHYAR: Yes.

59. MR JUSTICE MAURICE KAY: Everything is agreed?

60. MR POVOAS: Yes, apart from the non-contact condition. There is one more condition which is not to enter the borough of Duddly, which is apparently agreed.

61. MR DANESHYAR: Except for the purposes of attending the --

62. MR JUSTICE MAURICE KAY: -- the zoo.

63. MR DANESHYAR: -- the court centre that is there. It has been referred to as a zoo, but it is usually referred to as the waterfront.

64. MR JUSTICE MAURICE KAY: Will you kindly write those all out in a legible form and give them to the associate. Does that conclude matters?

65. MR DANESHYAR: There is one final matter and that is the costs. May the claimant's costs be paid for out of central funds?

66. MR JUSTICE MAURICE KAY: That is the appropriate order, is it not, in this case?

67. MR POVOAS: (inaudible)

68. MR JUSTICE MAURICE KAY: Yes, certainly. Thank you both very much.