Armstrong, R (on the application of) v Crown Prosecution Service

MR JUSTICE BEATSON: This is an application for permission to challenge the decision of His Honour Judge Bing on 23rd July, extending custody time limits from the 17th September to 5th November in the case involving the claimant, Leonard Armstrong. The time limits were extended because the trial had been fixed by His Honour Judge Richardson for 1st November this year at an earlier hearing on 7th July. It was argued that if permission is given I should deal with the substantive application.

It was argued before His Honour Judge Bing that inquiries should be made of courts other than Snaresbrook, the court which is to hear the trial in November, as to whether they could take it earlier. His Honour Judge Bing was referred to the decision in R v Leeds Crown Court ex parte Wilson. At the plea and directions hearing before Judge Richardson extensive inquiries were made of the Listing Office as to whether the case, estimated to last between two and three weeks with a large number of witnesses, could be accommodated before 1st November. The answer that was given was that it could not.

The learned judge considered the passage in Archbold chapter 1/274A and the case of the R v Leeds Crown Court ex parte Wilson, and concluded that he declined to order the listing office to make such inquiries. He did not consider that there was a positive duty to do so. He stated that it is regrettable that custody time limits have to be extended but in this case, based on observation evidence, a very large number of witnesses are required to attend and that means that the trial is of such a length that it cannot be accommodated, regrettably, before 1st November. He was satisfied, in those circumstances, that 1st November was the first available date for which the case could be taken. For that reason, he was satisfied that there was good cause to extend the custody time limits.

Mr Potter had submitted that enquiries had not previously been made by the Listing Office of other courts. That is accepted by Mr Chippeck who appeared on behalf of the Crown Prosecution Service before me, and it appears to be the case from the exchange between Mr Ellison, who then appeared for the Crown Prosecution Service, His Honour Judge Bing and Mr Potter on 23rd July. Accordingly, it appears that while extensive enquiries were made as to the possibility of an earlier hearing at Snaresbrook, the position at other courts in London was not considered, either at the hearing before His Honour Judge Richardson or that before His Honour Judge Bing.

His Honour Judge Bing regarded the proposition that there was a duty on the Listing Officer to make such inquiries as “novel”. He considered that a listing date of 1st November was not surprising given the length of the case and the number of cases listed at Snaresbrook. In the course of argument he adverted to the fact that Snaresbrook was a very large court centre and that the difficulties it had in listing such a case were likely to be replicated elsewhere.

Mr Potter relies on the decision in R v Manchester Crown Court ex parte MacDonald [1999] 1 Cr.App.R 409 and in particular on the statement in the judgment of Lord Bingham CJ at page 415 that:

“The courts have held, although reluctantly, that the unavailability of a suitable judge or a suitable courtroom within the maximum period specified in the regulations made in special cases and on appropriate facts, amount to good and sufficient cause for the Crown to give an extension of the time limit.”

His Lordship adopted the observation of Auld LJ in R v Central Criminal Court ex parte Abu Wardeh [1999] 1 Cr.App.R 43 at page 51 where his Lordship stated:

“In applications based on unavailability of a judge or courtroom, as on any other cause, the judge has another means of ensuring that it does not subvert the statutory purpose of speedy trial for those in custody. It is to examine the circumstances rigorously to determine whether the cause is also sufficient for any extension and, if so, the length of the extension sought.”

Lord Bingham CJ also adopted the observations made by Toulson J in R v Blair, Bryant and Taylor. Toulson J stated:

“If difficulties of providing a judge and a courtroom are too readily accepted as both a good and sufficient reason for extending custody time limits, there is a real danger that the purpose of the statutory provisions would be undermined.”

He continued:

“Of course, there may be situations where a particular case can only be tried by a particular class of judge where such a judge is only going to be available at a particular trial centre at a particular time, that other similar cases are already awaiting trial, and where there is no reasonable alternative but to make the defendant wait because the case cannot readily be transferred to another court centre. I am wholly familiar with these problems as they presently affect this circuit, but in this case we have a case which is serious but not of exceptional complexity. It can be tried by any circuit judge. It is not estimated to take more than three weeks at worst, yet I am being asked to extend the 16-week time limit by an additional 17 weeks. If I reach that decision in this case on that ground, it seems to me that it is virtually saying that in any case, regardless of what level of judge may try it, listing difficulties may be regarded as a just and sufficient cause for extending the statutory period by a very large margin indeed. I recoil from that because it seems to me that to do so would be to defeat the statutory purpose.”

Lord Bingham CJ stated at page 415 of ex parte MacDonald that while the unavailability of a courtroom may be good and sufficient cause, it is a reason to be approached with great caution.

In the present case, Mr Potter submits that this is a case of a similar nature to that considered by Toulson J; not of exceptional complexity and capable of being tried by any circuit judge. Mr Potter also relies on the recent decision of the Divisional Court in R (on the application of Bannister) v Crown Court at Guildford [2004] EWHC 221 Admin. In that case, the court quashed an extension of custody time limits and remitted the matter to the lower court in circumstances in which it was satisfied that enquiries had been made not only at Guildford Court which was to hear the case, but at other courts. This was because the Divisional Court was unable to detect any particular fact referable to the case which was capable of being a particular good and sufficient cause for extending the custody time limit.

May LJ, delivering the judgment of the court, stated that while he took account of Lord Bingham's statement in ex parte MacDonald, where the Crown Court has heard full argument and given its ruling, whether for or against an extension, this court would be most reluctant to disturb that decision on a judicial review application. Such application was, however, warranted in the case before him. He stated that in view of the positive duty on judges to be satisfied as to an extension (see, for example, the discussion in Archbold chapter 1/272), the judge considering an application for an extension might have to take positive steps. He stated that positive judicial intervention might be required and where positive judicial intervention occurred, that might make a difference as to whether custody time limits in a case are to be exceeded or not (see paragraph 17). May LJ was conscious of the fact that judges and recorders do not necessarily have easy practical ability to influence the way in which cases generally are listed. He, however, encouraged those with responsibility at Crown Court centres, or for managing the list, to take an interest in cases to ensure that there was such active judicial intervention.

I have concluded that in view of the positive duty on the court to be satisfied of the need for an extension and in the light of the scepticism with which applications based on the lack of an available court or judge are, on the authorities, to be treated, that notwithstanding the undoubted experience of both the learned judges who considered this matter, the effect of the decisions in ex parte MacDonald and the Bannister case is that in these circumstances enquiries should have been made at the London courts. I note that in directing that the matter be listed for a hearing today, Crane J observed:

“I am not granting permission, but if the learned judge regarded the making of efforts to find other courts as novel, he appears to have acted in ignorance of the R v Manchester Crown Court ex parte MacDonald and subsequent authorities (and indeed of widespread practice).”

For these reasons, this application is granted. The matter is remitted to the Crown Court so that the question of extension of time limits can be considered when the matter next comes before the court for mention, as I am told it is due to on 31st August.

MR POTTER: My Lord, thank you very much. My Lord, in a excess of caution, I am not sure whether this matter was Legally Aided. Would your Lordship been able to say that it merits Legal Aid?

MR JUSTICE BEATSON: Well, it has succeeded so it would pass the normal test. It is rather a hindsight exercise. What I would require is that the necessary certificate be submitted within 10 days.

MR POTTER: Very well, my Lord.

MR JUSTICE BEATSON: Thank you both.