Clarke, R (on the application of) v Lewes Crown Court

MRS JUSTICE DOBBS: This is an application for permission to apply for judicial review. The claimant seeks permission to challenge the defendant's decision of 3 December 2008 to extend the custody time limits. On 12 February 2009, Pitchford J ordered an oral permission hearing to be rolled up with substantive hearing should permission be granted.

The claimant faces three charges: one of rape and two of sexual assault. There are two complainants in the case. An issue arose as to whether or not one of the complaints was able to give informed consent. The prosecution obtained a report from the complainant's consultant, but the issue of informed consent was not addressed. A further report was obtained but not served until the day fixed for trial. The report concluded, that the complainant did not have the capacity to consent. The trial was adjourned at the claimant's request to instruct his own expert. The custody time limits were due to expire on 4 December 2008. Application was made by the prosecution for an extension of custody time limits. The application was granted on 3 December. The time limits were extended until 29 June 2009, with a new trial date fixed for 22 June. The claimant has been in custody since at least 5 June 2008.

The claimant submits that, whilst the judge applied the correct test, he erred in deciding that the prosecution had acted with all due diligence and expedition.

Article 5 on the European Convention on Human Rights sets out the basic right to personal liberty:

With certain exceptions the general presumption in favour of bail is set out in section 4(1) of the Bail Act, subject to conditions set out in Schedule 1 of the Act. In taking decisions on the grant of bail, the court is required, by paragraph 9 of the Schedule, to have regard to such of the following considerations as appear to it to be relevant. These include the nature and seriousness of the offence, the character, antecedents, associations and community ties of the defendant, the previous bail record, and the strength of the evidence.

Regulation 5(3) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 provides that the maximum period of custody between the time when the accused is committed for trial and the trial is 112 days, and in cases where the accused is sent for trial under section 51 of the Crime and Disorder Act 1998 and the start of the trial is 182 days, such as in this case. That is subject to section 22(3) of the Prosecution of Offences Act 1985, which provides:

Guidance on the application of this section was given in a series of cases under the name of McDonald and Others [1998] EWHC 319 (Admin). Lord Bingham, the Lord Chief Justice, noted that the 1985 Act and the 1987 Regulations (as amended) have three overriding purposes:

Lord Bingham went on to note that all were very important objectives, and any judge making a decision on the extension of the custody time limits, must be careful to give full weight to all three, bearing in mind that the burden of proof is on the Crown on the balance of probabilities to prove that both the statutory conditions in section 22(3) are met. The Court making the decision must always be adequately and fully informed of the matters which affect the decision. Whether evidence was necessary would depend on the nature and the extent of any controversy.

Dealing with the interpretation of "with all due expedition", the Lord Chief Justice said this:

As for the second limb of the test, namely that there is good and sufficient cause for extending or further extending maximum periods specified in the regulations, Lord Bingham said as follows:

The chronology of events is set out in two chronologies: one prepared by Mr Harper, the solicitor for the claimant, and one by the Sussex police, as well as in the statement of Mr Harper. It is as follows:

The police chronology certainly indicates that the report was requested to be submitted by 16 July. On 25 July 2008, the case papers were served. On 14 August, a report, dated 13 August from Dr Assin, was received by the Crown. On 29 August, the plea and case management hearing took place. "Not guilty" pleas were entered and the trial was fixed for 24 November. The Crown indicated that the ability of the complainant to consent was being investigated. A direction was made that expert evidence was to be served by the Crown within 14 days. That meant by 12 September. There was a further direction that a pre-trial review was to take place on 23 September.

On 15 September, three days after the expiry of the time limit for serving the expert report, and 32 days after the report of Dr Assin had been received, a memo was sent from Mark Smith, Senior Crown Prosecutor, to DC McCarthy indicating that the report from Dr Assin did not address the relevant issues which the prosecutor had asked for, namely the capacity to consent. Mr Smith indicated to the officer the importance of asking Dr Assin to address the issue in a further statement.

On 23 September Dr Assin replied to the request for a further statement in this way:

The pre-trial review took place on 26 September. The Crown indicated that the complainant had been seen by a doctor, but that they were seeking a further doctor's view. The court directed that the prosecution were to obtain and serve the expert evidence they wished to rely on by 20 October, and that the case would be listed for that date to ensure that they had.

On 7 October, there was a memo from Donna Giles of the CPS to DC McCarthy, chasing third party material regarding the complainant's mental health. On 9 October, the prosecution contacted two local medical legal experts: a Dr Angus and a Dr Procopio. Dr Angus was not available until after Christmas, and Dr Procopio was not available until early November. The date of 5 November was set for a consultation.

The case was listed on 20 October. The prosecution indicated to the court that the complainants were to be seen by Dr Procopio on 5 November, that is some 19 days before the case was fixed for trial. Accordingly the reports were to be served by 12 November. The defence sought to instruct their own expert and the case was to be listed as soon as possible. The prosecution gave an undertaking, that if it could not serve the evidence on 12 November, then it would not seek to rely upon that evidence. On 3 November, the letter of instruction was sent to Dr Procopio. On the same day, as is clear from the police officer's chronology, Dr Procopio indicated that he would only be able to prepare a report by 19 November. Neither the defence nor the court were told about this development at the time. No reports were therefore served by the court deadline on 3 November.

On 13 November, an application was served on the court and the defence to extend the custody time limits. The defence were asked if they objected to the application. On the same day, Donna Giles of the CPS wrote a memo to DC McCarthy, indicting that the Crown was due to serve a report on 12 November, but that she had been told by the officer in the case that it would not be ready until 19th. She warned that the defence might make an application to break the fixture and that the application to extend the custody time limits could be refused. She indicated that the sooner a report was served the better.

Thus, on 13 November, the CPS wrote to the defendant's solicitors to indicate that they could not serve a report until 19 November, that is the Wednesday before trial. The 19 November came and went, but no reports were served. The defence heard nothing from the prosecution and assumed, in the light of the concession made by the Crown on 20 October, that the prosecution would not be relying on the expert reports.

On 21 November the report was made available. That was the Friday before the trial. On 24 November, the day of the trial, the prosecution served the report, plus further reports from intermediaries, about which no prior notice had been given. As the report had indicated that complainant A did not have capacity to consent, the defence needed to instruct their own expert. The case was put over until 3 December for further directions and for an application by the Crown to extend the custody time limits. As will be noted, on 3 December, the judge acceded to the application, that decision being the basis of this application. A new trial date was fixed for 22 June and the custody time limits were extended to 29th.

The first question that the judge addressed, was the issue of whether or not to rely on the oral representations made to him that morning, or to hear oral evidence. He chose to rely on the representations and the documents to found his findings of fact. The judge reminded himself of the burden and standard of proof, namely that the burden was on the prosecution on the balance of probabilities to establish whether it has acted with all due expedition, and that there was sufficient reason for extending the limits. He reminded himself that the purpose of the Act was to ensure that the periods for which unconvicted prisoners remained in custody awaiting trial are as short as possible, and the periods specified in the Act

He articulated the test in the following way:

The judge then set out a very brief overview of the issues and the problem to be addressed in the reports, and his conclusion was as follows:

The following are relied on in support of the application:

In essence, it is said that the prosecution did not act with due diligence and expedition and indeed, competence, prior to 9 October. Moreover they did not instruct the expert until 3 November. This was far too late to preserve the trial date and the original custody time limits.

The second defendant has reminded the court of the principles involved in applications of this kind. There is no dispute between the parties as to the applicable law. However, the second defendant has reminded the court of the balancing of the interests of the public and the defendant; the three overriding purposes of the time limits and the need for the judge to bear all three principles in mind; the duty to give reasons and the reluctance of the Court of Appeal to interfere with the decision of the judge in the court below.

Dealing with the issue of giving reasons, reliance is placed on the case of R v Leeds Crown Court, ex-parte Briggs, 1998 the Times, 19 February, referred to and approved by Lord Bingham in MacDonald, and that the requirement to give reasons does not mean that:

The second defendant submits that the need to obtain relevant and significant evidence may amount to a good and sufficient cause, although it is noted that the claimant has not taken a point on this aspect of the test.

It is further submitted that the requirement of due diligence and expedition is not a disciplinary provision and that it does not exist to punish prosecutors for administrative lapses, but to protect the defendants by ensuring they are not kept in prison awaiting trial for longer than justified. Delay by the Crown, which has no effect on the ability of the prosecution and defence to be ready for trial on a date before the expiry of the custody time limit, does not oblige the court to refuse to extend a custody time limit: see R v Leeds Crown Court, ex parte Bagoutie 1999 The Times, 31 May, as approved, and followed in Gibson [2004] 1 WLR 1623 and R(O) v Crown Court at Harrow [2007] 1 AC 249.

Reliance is placed on the case of R v Central Criminal Court [1999] 2 Cr App R 51; Hadfield v Manchester Crown Court [2007] EWHC 2408 (Admin); R (on the application of Alexander) v Isleworth Crown Court [2009] EWHC (Admin) 85, for the proposition that independent bodies, who are instructed to provide material evidence for the purpose of a prosecution, are not part of the prosecution for the purposes of section 22. Provided the prosecution does everything in its power to ensure, so far as it reasonably can, that necessary evidence is available within the custody time limit, the fact that an independent body is dilatory in producing material evidence for the purpose of the case does not mean that the prosecution has failed to act with all due diligence and expedition.

One has to be realistic about the speed with which one can instruct a suitably qualified expert. In some circumstances it may be proper to delay instructing an expert witness. For instance, where a fitness to plead hearing is to take place, it my be wise to ascertain the date before instructing the expert so as to ensure his or her availability. Following on this, it is submitted that it may be proper, once an expert is instructed, to wait for the instructed expert to produce a delayed report, rather than to rush off and instruct a new expert.

The second defendant accepts that the prosecution must prepare for trial with all due diligence and expedition, but points out that it also has duties in relation to the complainants, in particular, to express the specific needs of the potential problems of witnesses.

In the light of the matters relied on, it is submitted that HHJ Focke acted reasonably in concluding that the material delay was caused by Dr Assin (a) failing to deal with the relevant issues in his first report and (b) failing to deliver the second report on time, and that the conduct with Dr Assin was a matter outside the control of the prosecution.

The judge decided in this case not to hear evidence. He gave brief reasons for his conclusions. Given that the application was opposed, and that there were unanswered questions before the court posed by the defence, it might have been better, in my judgment, if he had heard evidence. The court is now in the position of trying to second guess why the judge came to the conclusion he did, in the absence of more detailed reasoning.

I turn to consider the facts against the legal principles which apply. It seems that the prosecution had identified at an early stage, that there was an issue with regard to the complainant's capacity to consent which needed to be investigated. A strong inference from what I have seen, namely the letter of Dr Assin, dated 23 September 2008, and also a memo from Mark Smith which shows that the doctor commented on the complainant's fitness to plead, is that the doctor was not properly instructed and did not receive clear and unambiguous instructions to deal with the issue of capacity to consent to sexual activity. It follows from this, that approximately two months were wasted. It is also instructive to note that the Crown have disclosed neither the letter of instruction nor the report of Dr Assin, which could in fact shed light on the precise instructions given.

The doctor's report was received on 14 August. The PCMH was listed a fortnight thereafter. By the PCMH on 29 August, the prosecution had not considered the report, which had been with them for 15 days. The doctor cannot be blamed for that delay. Moreover, the court and the defence, as noted by counsel for the claimant, were under the impression that the treating doctor's evidence was to be served within the 14-day time limit imposed for service.

The memo from the senior prosecution was dated 15 September, 32 days after the report was received and three days after the due date for service of the expert report. That memo asked for another report from Dr Assin. Dr Assin replied within seven days recommending that an expert in the field be used. No delay can be laid at his door in relation to that response.

By the next pre-trial review, on 26 September, the expert evidence had not been served. The Crown indicated that they were seeking a different view. With that information in mind, the court made a further order, giving four weeks for the expert evidence to be obtained and served. It is now clear, that it was not until 9 October, that the prosecution first got in touch with the experts in question and, despite having got in touch with the experts in question, there is no indication from the information in front of us that the experts were told about the time limits. We certainly know what their availability was. Nothing effective was done between 23 September, when Dr Assin replied recommending the use of an expert, and 9 October.

Additionally it is quite clear that, by 20 October, the prosecution knew that the reports had to be prepared and served by 12 November. The letter of instruction was sent out on 3 November. On that same day, the prosecution knew that the reports would not be available for the time limit imposed by the court, namely 12 November. Neither the court nor the defence were told about this development. Having failed to abide by the court's orders, by now on three occasions, there was also the Crown's stance of going back on the undertaking that they made. Counsel for the second defendant has submitted that the prosecution were in a position where they had no choice but to renege on their undertaking in the light of the content of the report. I merely observe that the prosecution must have known when they sought the report, that there was a reasonable chance of the report indicating that the complainant did not have capacity to consent when they made the undertaking.

I have set out the matters which needed rigorous scrutiny by the judge. He made no mention of any of these matters, save to refer to the fact that psychiatrists and their assistants, to a large extent, govern the timetable relating to the answer to questions. This observation can be seen to arise from a note at the bottom of the case file information document of the officer, DC McCarthy, where he indicated that the doctors were difficult to talk to and their PAs had been spoken to generally. What the police officer was in fact referring to, was the recently approached doctors: the two doctors that were approached in October 2009, when, subsequently the exchanges took place after October 2009 between the police and the personal assistants of Dr Procopio, and, I think, one other doctor. The officer was not referring to Dr Assin.

The second defendant has submitted that the judge made findings that (a) by failing to deal with the relevant issues in his first report and (b) failing to deliver his second report on time, that the conduct of Dr Assin was a matter outside the control of the prosecution. The judge made no such findings specifically with regard to Dr Assin. He referred generally to experts and secretaries with no reference to a specific one. There was no finding that Dr Assin had failed to deliver his second report on time, and indeed it is clear from Dr Assin's letter, that if he was to do a second report, he needed access to the case papers from the prosecution.

Without being too prescriptive, what would one expect a competent prosecutor, conscious of his duty to bring the case to court quickly, reasonably and as fairly as possible, to have done in a case like this? Firstly, in my judgment, to ensure that clear and unambiguous instructions were given to the expert together with a timeframe within which the report was to be prepared; secondly, to ensure that the instructions given were carried out timeously and in accordance with the instructions, in other words, considering the report as soon as possible after receipt; thirdly, so far as humanly possible, that the time limits imposed by the court were followed, the Crown having had the opportunity to make submissions to the court about realistic time limits.

As I have already indicated, first, the very strong inference is that Dr Assin was not properly instructed. In any event, the Crown has produced no evidence, when they could have done, to show that they gave proper instructions to Dr Assin. Secondly, if the prosecutor had read the report before the PCMH, the Crown would have been in the position to inform the court, over a month earlier, that they were seeking alternative expert advice. That extra month could have given the defence the opportunity to instruct its own expert without the need to extent the custody time limits. We now know that the first effective approach was made on 9 October to two experts who were locals. However, it is clear from the case file information, that no attempts were made, when the two experts gave their availability, to find any other experts on a list of forensic psychiatrists who might be able to deal with the matter sooner that in fact the officer had received on 2 October.

Another issue which arises, is that the judge made no reference to the apparent undertaking by the Crown not to rely on such evidence should they not be able to serve it within the time limits imposed. This is a matter that is raised by counsel for the claimant, but was not addressed explicitly by the judge. We say this: in my judgment counsel for the second defendant has identified that the Crown should not have given such an undertaking that they did. It may well be that that was the view of the judge in this case, although he did not express it. It is an issue which, although of some relevance, is really marginal to the issue of whether the Crown exercised due diligence and expedition.

In my judgment, contrary to the submissions of the second defendant, this is not a case where the Crown can properly rely on the dilatoriness of Dr Assin for the reasons which I have already stated. Nor can they rely on the dilatoriness of Dr Procopio, given the timing of the appointments and the production of the report. This is not a case where the Crown delayed the instruction of the second expert with a view to ascertaining when the hearing might take place. The Crown knew from the end of August that the trial date was fixed for 24 November. This is also not a case where they can rely on the excuse of waiting for a second report from Dr Assin given the contents of his letter of 23 September. So far as any duty to the complainant is concerned, I have seen nothing in the Code and prosecutor's pledge which assists the second defendant's case. In my judgment the interest of the complainant and the defendant are similar, that the case proceed with expedition. Both have to wait over a year from the date of arrest and charge for the case to be heard.

There is another issue which causes me concern in this case, that is the length of the extension, namely 29 and-a-half weeks, significantly in excess of the maximum 182 days, that is 26 weeks. There is nothing in the ruling which touches on this aspect about why such a long extension was necessary. The effect is, that the defendant would spend 13 months in custody awaiting trial. However, this is not an issue which has been raised before the court.

Lord Bingham made it clear that the courts were not likely to interfere with decisions of judges. In this case, however, it seems to me that the court has no choice but to interfere, because although the judge applied the right test, in my judgment the relevant issues were not properly considered by him, in particular, bearing in mind the burden and standard of proof. In my judgment, the decision is not sustainable for the reasons already given. In short, because of lack of evidence, because of the many unanswered questions, to enable the judge to be satisfied that the prosecution had acted with due diligence and expedition. Moreover, the observations that he made in his ruling, taken from the police officer's information file, related to the problems of the late instruction of the later expert, and not with any problems in relation to Dr Assin. I, for my part, would therefore grant permission and grant the application.

SIR ANTHONY MAY: I agree. This application and claim should succeed for the reasons given by Dobbs J, whose account of the facts and circumstances of the case I gratefully adopt and will not repeat. We are called upon to review the decision of HHJ Focke of 3 December 2008 in the Lewes Crown Court, sitting at Hove, to extend the custody time limit from 5 December 2008 to a date in late June 2009, shortly after the date to which the applicant's trial was by force adjourned.

In the context of Article 5(3) of the European Convention on Human Rights, that was a very substantial extension, which approximately doubled the time that the applicant would spend in custody waiting for his trial, and which in my view, by itself, gives cause for concern. The length of the extension is not, however, advanced in this court as contributing to the case that the time limit ought not to have been extended, so I say no more about it.

Dobbs J has already referred to authority. I simply repeat what Lord Bingham, the Lord Chief Justice, said in

Mr Barton, for the applicant, grasps the nettle and says that although HHJ Focke directed himself entirely correctly as to the law, his findings of fact that the prosecution had acted in this case with all due diligence and expedition was unsustainable in a Wednesbury sense.

In my view, on the material before this court, the essential shape of the facts relating to due diligence and expedition is as follows, the matter of the capacity of one of the claimants to consent obviously needed to be addressed. Dr Assin was instructed, reasonably promptly, on 12 June 2008. The prosecution have not disclosed the terms of his instructions. When he came to report on 14 August 2008 he did not, so it seems, adequately deal with the matter of the complainant's capacity and he was later to write on 23 September 2008 that he would need much more extended instructions if he were to do so. It is evident that he was unclear what he was being asked to do, and there is a reasonable inference, which is all that the court can do in the absence of his instructions, that his original instructions were at best unclear and at worst inadequate. In the result, the period between 12 June and 14 August 2008 was wasted.

Between 14 August and 23 September 2008 the prosecution appear to have taken no steps to remedy the inadequacies in Dr Assin's reports. In the event, a different expert was needed. That period too was wasted. During this period and later the court made orders for the delivery by the prosecution of a psychiatric report which the prosecution were never going to achieve, in the event that went through into October and November. Between 23 September and 7 October 2008 no steps appear to have been taken to identify and instruct a different psychiatric expert. That period too was wasted.

By 9 October 2008 Dr Procopio had been identified as an appropriate psychiatric expert, but he was unsurprisingly unable to address the matter before November. He was formally instructed on 3 November. He examined the complainant on 12 November and reported on 21 November. The report was served on the defence only on the very day of trial, 24 November, a date which had been fixed on 29 August. Although a case can perhaps be made, that taken in isolation, matters moved at a reasonable pace after 9 October. It was unsurprising that as things in fact turned out finding and instructing a psychiatric expert as late as that date, for a trial fixed for 24 November, was too late for the report to be served in time to preserve the trial date. It was likely that the defence would want time to consider and respond to the report, which they were entirely unable to do, it being served only on the very date of the trial.

In summary, in my view, the whole period between 12 June and 9 October was in one way or another wasted. The case for due diligence and expedition is, in my view, plainly not made out, and it seems to me in agreement with Dobbs J that the judge's decision to the contrary simply cannot stand, applying the tests which I have set out briefly in the earlier part of this judgment.

For these reasons I agree that permission should be granted and that the claim for judicial review should succeed. Mr Barton, in the event we quash the decision, is that right?

MR BARTON: I think you quash the decision, which will need to be communicated to those who hold the claimant. It is right that you should know that prior to his incarceration he had bail with conditions. He had a condition of residence to an address, which is now no longer available to him, and a condition of reporting to Brighton Police Station on a daily basis between 12 noon and 2pm.

SIR ANTHONY MAY: Is it appropriate for this court to deal with bail? The matter of conditions would obviously need to be readdressed. Would it not be more appropriate for the Crown Court to do that?

MR BARTON: Would your Lordship be minded that the matter go before HHJ Brown, the resident judge tomorrow in Lewes? I will be in Lewes and I can deal with it then.

SIR ANTHONY MAY: It seems to me more appropriate. I do not know whether Miss Elliott is in a position to deal with bail conditions, are you?

MISS ELLIOTT: I am not the trial counsel. I could deal with the matter now if called upon to do so. Certainly, although I have no specific instructions in relation to bail, the previous bail conditions would seem to be, in the prosecution's submission, a minimum. If the address is not available, the Crown would certainly ask that an address be given to the court and to those instructing the claimant, because this claimant has quite a number of antecedents for failing to turn up at court on his hearing dates.

SIR ANTHONY MAY: Mr Barton, I think it is technically the case that quashing the extension of custody time limits does not absolutely and automatically mean that bail is appropriate. It almost certainly is in this case. That is technically correct.

MR BARTON: There needs to be an order for bail.

SIR ANTHONY MAY: My lady points out that is what happened in McDonald.

MR BARTON: Yes, and it may give those instructing me time to obtain a suitable address if is felt necessary for a residence.

SIR ANTHONY MAY: In that case we will make that direction.

MR BARTON: Thank you. This will be heard before HHJ Brown tomorrow.

SIR ANTHONY MAY: Yes.