Campbell-Brown v Central Criminal Court & Anor

This is the judgment of the Court. Delton Campbell-Brown (“the Claimant”) applies for judicial review of the decision of HHJ Wide QC, sitting at the Central Criminal Court on 5^th December 2014, to extend his custody time limit to 13^th February 2015, being shortly after the expected commencement of his trial in that Court.

The Central Criminal Court is the Defendant to these proceedings. It has acknowledged service and assisted us by providing relevant transcripts, but does not appear before us today. The substantive defence to the decision under challenge has been left to the Director of Public Prosecutions as an Interested Party.

The Claimant, together with Taylor Fernandes-Nelson and Stephen Roberts, has been indicted for the murder of Ryan Gray, allegedly committed on 8^th June 2014. All three defendants have been remanded in custody.

On 27^th August 2014, a Plea and Case Management Hearing took place at the Central Criminal Court before HHJ Morris QC. According to the transcript, the hearing lasted 11 minutes. The three defendants were arraigned and pleaded not guilty to the charge on the indictment.

Mr Jacob Hallam appeared for the Crown and informed the Court that the trial was expected to last three weeks. A timetable for the service of defence case statements, and further prosecution evidence, was put forward, and agreed - on the footing that these dates would suit the interests of all the parties regardless of when the trial date was ultimately set.

Mr Hallam then informed the Court that the custody time limits for all three defendants would expire by 11^th December 2014, or thereabouts. In fact, the custody time limit in relation to the Claimant was due to expire on 10^th December 2014, but nothing turns on this. Having presumably taken soundings from Listing, Mr Hallam said that there were trial dates available on 24^th November 2014 and 9^th February 2015. The Crown’s position was that both dates were convenient, but the earlier date had the advantage of being within the custody time limits. That said, the Crown was neutral as to which date was chosen.

Mr Martin, appearing for Taylor Fernandes-Nelson, submitted that his client’s leading counsel, Mr Patrick O’Connor QC, had a hearing in the Court of Appeal listed for several days in the second week of December, and would therefore prefer the later date. Mr Martin also floated a point relating to a bottle found at the scene, and the possible forensic implications of that; but this did not crystallise into a separate basis for seeking to delay the trial to February. Mr Sperling, appearing for Stephen Roberts, preferred the later date on the basis that Mr Bernard Richmond QC “unfortunately cannot do 24th November”. He also suggested that the later date “would give more time and sufficient time for all parties to be ready”. On our view, this was merely an observation; it was not a submission. It would have been difficult to argue that the trial could not properly and fairly take place on 24^th November 2014.

Mr Tim Moloney QC for the Claimant submitted that the trial date be fixed for 24^th November 2014. This was within the custody time limits, and his client was only 19 years old. He had already been in custody for some time. Mr Moloney observed that the sole basis of opposition to the November date was the convenience of counsel.

Having heard all Counsel, HHJ Morris QC asked Mr Moloney whether he was available in February. Mr Moloney replied:

“It’s tight, but just. There is not a lot to do in this case, my Lord, before the Crown serve their outstanding evidence on 8^th October, then that gives some seven weeks before this trial would be taking place”.

The transcript may not catch the entirety of Mr Moloney’s submission, but he has confirmed that he was making clear to the Court that in his view there was ample time to prepare for a trial beginning in late November 2014.

HHJ Morris QC then fixed the trial for 9^th February 2015 with a time estimate of three weeks. At that stage of the hearing, he did not extend the custody time limits. He asked Mr Hallam whether there were any other matters to be dealt with on that day, and Mr Hallam invited him either to extend the custody time limits, or to order a further hearing in early December for that issue to be addressed. HHJ Morris QC pursued the latter course, “just in case there are any problems with the case”.

The hearing envisaged by HHJ Morris QC took place on 5^th December 2014 before HHJ Wide QC. Two versions of the transcript are available, and they differ slightly from each other. Furthermore, both versions appear to start part-way through the proceedings.

HHJ Wide QC observed:

“The nub of this is why isn’t it a good and sufficient reason balancing all of the interests of justice for the Court to say, ‘well, two out of three defendants want it on 9^th February 2015 for reasons which Judge Morris found to be good ones, why isn’t that a good and sufficient reason to fix the trial date when it is and therefore, to extend the custody time limits’. That is the nub of it, isn’t it?”

Mr Moloney agreed that the learned Judge had correctly identified the issue, and submitted that the correct procedure should have been to ascertain whether there was good and sufficient cause for extending the custody time limits in this case, and that the convenience of counsel did not constitute such a reason. It is noteworthy that Mr Moloney used the past tense; he was referring back to what had happened at the PCMH. If successful in his application, Mr Moloney – having ascertained from Listing that there was availability at the Central Criminal Court – stated:

“it may be that the Court would fix the trial [of all three defendants] to commence the following week …”

He added:

“I don’t know but we plainly wouldn’t be ready in these circumstances”.

Ms Esther Schutzer-Weissmann appeared for the Crown. She said that the Crown, along with everyone else, had been working to get ready for a trial starting on 9^th February 2015 (the transcript contains an error in this regard). HHJ Wide QC then said:

“Well, it’s not going to happen on Monday. It’s just out of the question”.

Ms Schutzer-Weissmann did not seek to change the learned Judge’s mind, and then drew attention to paragraphs 1-356 and 1-357 of Archbold. Her submission on the basis of those paragraphs was that:

“…once there is a trial date and the Court and everybody is managing their time in accordance with that, the fixture of a trial does represent a good and sufficient cause”.

At this juncture we should point out that a proposition of this breadth cannot properly be gleaned from these paragraphs in Archbold. However, it may be possible to gather from them a somewhat narrower point, and this is one which we will be coming to address in the context of relevant authority.

HHJ Wide QC then invited Mr Moloney to assist him on what he called this new point. Mr Moloney repeated his primary submission that the convenience of counsel was not in these circumstances a good and sufficient reason for extending the custody time limits, which were designed to protect a defendant’s fair trial and Article 5 rights.

In giving his ruling, HHJ Wide QC noted that the point was an interesting one. He stated that the Crown had clearly acted with due expedition, and the only question was whether there was good and sufficient cause to extend the custody time limits in relation to the Claimant. The Judge recognised that the custody time limits should be taken very seriously. His core reasoning was as follows (see transcript, pages 8D-9H):

“I do not accept the submission that the convenience of counsel in a situation like this can never be enough. What defendants would be faced with, or the court would be faced with, is either two out of three defendants losing counsel of their choice who are already engaged and instructed in the case or of course with pressure to find other alternative counsel at relatively short notice or for a separate trial.

…

Judge Morris obviously thought that there was a good enough reason to direct that this trial take place in February. No quarrel is really made with that decision, except that Mr Moloney says that it is really the wrong way round. One ought to fix the trial and then see where you are in relation to counsel.

In my judgment, balancing things as best I can, there is in this case good and sufficient cause to extend custody time limits in relation to Campbell-Brown to 13^th February 2015. It seems to me that the desirability of keeping leading counsel in the case as far as the other two defendants are concerned is a matter which should weigh heavily with the court and it does, just sufficiently heavily to justify the decision I have made”

The single Judge refused permission to apply for judicial review on the papers, but on 20^th January 2015 this Court (Aikens LJ and Cranston J) granted permission and expedited the substantive hearing.

Under section 22 of the Prosecution of Offences Act 1985, the Secretary of State is empowered to provide by way of subordinate legislation the custody time limits which apply to criminal proceedings in the Magistrates’ Court and the Crown Court.

Pursuant to section 22(3):

“The appropriate court may, at any time before the expiry of a time limit imposed by the regulations, extend, or further extend, that limit, but the Court shall not do so unless it is satisfied –

that the need for the extension is due to -

…

(iii)

some other good and sufficient cause; and

that the prosecution has acted with all due diligence and expedition.”

Section 22(13) disapplies section 29(3) of the Senior Courts Act 1981, and in consequence this Court has power to exercise a judicial review jurisdiction in this domain, notwithstanding that the application relates to trial on indictment.

The relevant provisions of secondary legislation are to be found in the Prosecution of Offences (Custody Time Limits) Regulations 1987 [1987 SI No. 299]. The effect of Regulation 5 is that the custody time limit in this case was a period of 182 days, effectively 6 months, the expiry of which – in relation to the Claimant – was, as we have already said, on 10^th December 2014.

Regulation 7 sets out the machinery for making applications to extend the custody time limits, but nothing turns on this.

Mr Moloney QC on behalf of the Claimant submitted that during the PCMH before HHJ Morris QC on 27^th August 2014 no consideration was given to the issue of whether custody time limits should be extended, let alone whether there was a good and proper cause for such an extension. The Judge on that occasion did not realistically explore the extent to which it might be possible for the two co-defendants to instruct new counsel who might be available for trial before the expiry of the custody time limit; the issue was, in effect, adjourned for future consideration.

Mr Moloney added that at the hearing before HHJ Wide QC on 5^th December 2014, no evidence was put before the Court to explain what, if any, steps had been taken to ensure that a trial was listed within the custody time limits. Similarly, no evidence or submissions were adduced to explain the potential availability of alternative counsel.

Having drawn attention to the relevant authorities, Mr Moloney submitted that on the facts of this case the convenience of co-defendant counsel could not amount to “good and proper cause”. The only reason given by HHJ Wide QC for the extension of the custody time limit was that the trial had been fixed for 9^th February 2015, and the Claimant’s co-defendants had previously expressed a wish to continue instruct their counsel. This expression of wish, or aspiration, could not logically override the interests of the Claimant, who had consistently maintained the position that he should be tried within the parameters and safeguards provided in secondary legislation.

Secondly, or alternatively, Mr Moloney submitted that no proper investigation was undertaken by the Court on 5^th December 2014 as to the availability of alternative counsel or an earlier trial date. Instead, HHJ Wide QC rather assumed that the issue had already been fully explored before HHJ Morris QC on 27^th August 2014. This was an impermissible inference to draw, because HHJ Wide QC must have been aware that the predecessor Court had not made a decision under section 22(3): this was the very decision he was now being asked to make. Accordingly, no reasonable assumption could be made that HHJ Morris QC had addressed the issue of good and sufficient cause.

Recognising that he could not seek to challenge in these judicial review proceedings the case management or listing decision made by HHJ Morris QC on 27^th August 2014, owing to section 29(3) of the Senior Courts Act 1981, Mr Moloney submitted that it was both artificial and incorrect to attempt to disentangle the two judicial decisions in this case; they were inextricably intertwined. The errors perpetrated during the course of the first decision making process infected the second. In such circumstances, HHJ Wide QC should have given legal effect to the antecedent, inextricable errors and have remanded the Claimant on conditional bail.

In opposing this application for judicial review, Mr Paul Jarvis’ written argument on behalf of the DPP submitted that the authorities tend to support the proposition that the availability of co-defendant’s counsel can amount to good and sufficient cause to extend the custody time limits of all the defendants, even those who objected to the listing of their trial “so far in the future” (see §10 of his skeleton argument).

Mr Jarvis submitted that HHJ Morris QC had been entitled to take into account the wishes of the Claimant’s co-defendants in retaining counsel of their choice, notwithstanding that fixing the trial to accommodate their wishes would be two months or so beyond the expiry of the custody time limit. Equally, HHJ Wide QC was perfectly entitled to take this factor into account as a justification for extending the custody time limit. Mr Jarvis observed that the Claimant’s contention, namely that custody time limits could never be extended to meet the convenience of counsel, would, if correct, lead to absurd consequences. We observe at this juncture that the Claimant’s contention has been mischaracterised; Mr Moloney was confining his submissions to the circumstances of the instant case.

As for the Claimant’s second ground of challenge, Mr Jarvis submitted that HHJ Wide QC was quite entitled to assume that the reasons why alternative counsel could not have been instructed to represent the Claimant’s co-defendants at a trial held within the custody time limits must have been explored at the PCMH.

Mr Hallam developed these submissions orally. His primary argument was that in substance and reality HHJ Morris QC did make a decision extending the custody time limits under section 22(3) of the 1985 Act, that HHJ Wide QC was merely revisiting that decision, and that both decisions were reasonable. He accepted that the earlier decision could not have been challenged in judicial review proceedings. Mr Hallam submitted that HHJ Morris QC’s decision, albeit somewhat laconic, was defensible on the basis that he weighed up the competing interests of all the parties against the backdrop of the safeguards guaranteed by the 1985 Act, and concluded on a rational basis that the custody time limits could be extended. The premise of Mr Hallam’s primary argument was that the two judicial decisions could not be disentangled. In the alternative, Mr Hallam submitted that if his interpretation of HHJ Morris QC’s decision were incorrect, then what on that hypothesis would be the separate decision made by HHJ Wide QC is unimpeachable, because his hands were tied. The practical reality was that the February date could not be brought forward, in which circumstances there was good and sufficient cause to extend the custody time limit.

The importance of custody time limits is vouched by their enshrinement in statute as well as judicial recognition in authority of this Court of an un-convicted prisoner’s human rights under Articles 5 and 6 of the Convention.

As Sir John Thomas P explained, at paragraph 25 of the decision of this Court in R(McAuley) v Crown Court at Coventry [2012] 1 WLR 2766:

“The time limit placed on trying those in custody is a vital feature of our system of justice which distinguishes it from many other countries. It puts a premium on careful management of all resources and the efficient conduct of business by the court administration under the direction of the judiciary. Not only does it provide sure means of compliance with a principle of the common law as old as Magna Carta that justice delayed is justice denied, but it has the collateral benefit that money is not squandered by the unnecessary detention of persons in prison awaiting trial at significant cost to the taxpayer.”

Reference should also be made, as Mr Moloney rightly urges on us, to the slightly later decision of the Divisional Court in Regina (Raeside) v Crown Court at Luton [2012] 1 WLR 2777, where Sir John Thomas P said this (see paragraph 26):

“The general approach of the court to an extension of a custody time limit is set out in R (Gibson) v Crown Court at Winchester (Crown Prosecution Service intervening) [2004] 1 WLR 1623 where a Divisional Court presided over by Lord Woolf CJ, with Rose LJ (the vice-president of the Court of Appeal (Criminal Division)), was specially constituted to consider the proper approach of a Crown Court where an issue arose as to the availability of judges able to try homicide cases. The Court reviewed the authorities, including the decision of R v Manchester Crown Court, Ex p McDonald [1999] 1 WLR 841 where Lord Bingham of Cornhill CJ observed as p 848:

“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 may, in special cases and on appropriate facts, amount to a good and sufficient cause for granting an extension of the custody time limit.””

Further, at paragraph 33 of Raeside this Court emphasised in pungent terms the importance of close and punctilious judicial scrutiny of the issue:

“The case demonstrates again the necessity of treating the custody time limit in each case and any application to extend it in the very serious manner required of the statutory provisions which Parliament, consistent with the long tradition of the common law, has enacted to ensure cases are tried speedily and those who have not been convicted are not deprived of their liberty beyond the time specified without good reason. A person should not be deprived of his liberty where the state cannot meet the duty to try him speedily and within the time limit specified without detailed evidence that is then subject to vigorous and stringent examination to see if the state has established good and sufficient cause to deprive him of his liberty beyond that time limit.”

In May 2012, Joint Guidance was issued by the Senior Presiding Judge and the Director of Crime. This was annexed to the Joint Protocol relating to Custody Time Limits issued by HM Courts and Tribunals Service and the CPS on 5^th February 2013. We set out the salient parts of the Joint Guidance:

“Listing is a judicial function. Every effort must be made to list cases for trial within the CTL limits set by Parliament

The guiding principles are:

(second bullet) Then, or at the PCHM, all efforts must be made to list the case within the CTL. The CTL may only be extended in unusual or exceptional circumstances.

(ninth bullet) Where courtroom or judge availability is not in issue, but all parties and the court will not be ready before the expiration of the CTL, a date may be fixed outside the CTL. This may be done without prejudice to any application to extend the CTLs or with the express consent of the defence; this must be noted on the papers.” [emphasis supplied]

The Crown Prosecution Service has also issued guidance in relation to Custody Time Limits. In seeking to define the concept of “good and sufficient cause”, the following statements of principle appear:

“A trial date after the expiry of the CTL should not be fixed at a PCMH without a full enquiry as to whether or not it was possible to fix an earlier date and the onus is on the prosecution to satisfy the judge that an earlier date was not possible. This requires pro-activity on behalf of the CPS with the court…

The reasonable requirements of the defence to consider committal papers may amount to a good and sufficient cause, although each case will turn on its own facts and late service is unlikely to enhance this argument. The convenience of counsel for a defendant was not a good and sufficient cause (see R(Lake and Bennett) v Northampton Crown Court).” [emphasis supplied]

We have highlighted two sentences in these guidance documents because in our view they go too far, and are not consistent with statute and authority. We shall explain why during the course of the discussion which follows.

In our judgment, the PCMH which took place on 27^th August 2014 was conducted in breach of the principles articulated in the decisions of this Court and the Guidance referred to above. The Claimant did not consent to the trial being fixed beyond the expiry of the custody time limits. The Court was being invited to make a listing decision which would have an obvious impact on the custody time limits, but did not approach the exercise it was undertaking from that perspective. No application was made to extend the custody time limits before HHJ Morris QC fixed the trial date, and it is plain from the transcript that no judicial consideration was given to that issue at that stage. The Joint Guidance correctly makes clear (see paragraph 39 above) that the listing decision and the decision to extend the custody time limits ought to be regarded as indissoluble from each other, but HHJ Morris QC treated them as distinct and sequential. Although HHJ Morris QC made a case management decision which reflected the convenience of two out of three leading counsel for the defendants, he was not making a decision under section 22(3). Mr Hallam’s valiant attempt to persuade us to the contrary cannot succeed.

Indeed, what happened was that after the 9^th February date was fixed, Counsel for the Crown invited the learned Judge either to consider extending the custody time limits on that date, or adjourn the matter for future consideration. The learned judge adopted the latter course, and did not reserve the issue to himself.

It follows that no judicial consideration was given to whether there was “good and sufficient cause” for extending the custody time limit before the matter became, in effect, an accomplished fact; and a trial date well beyond the expiry of the custody time limit was fixed. We put the matter in that way because HHJ Morris QC must have been aware that by the date of the subsequent hearing the prospects of breaking the February 2015 fixture and accelerating the trial date were remote, if not non-existent. Whereas the Central Criminal Court was in a position to offer a late November fixture in late August 2014, the resources of that court – or, indeed, any other appropriate Court with suitable judicial personnel to try a murder of this nature – were highly unlikely to be such as to permit a revised fixture closer to the expiry of the custody time limits when the issue was under judicial scrutiny on 5^th December 2014.

Furthermore, in early December 2014 the parties were preparing for a February trial, not one which might start within a few days.

Accordingly, although HHJ Morris QC was aware from Mr Hallam’s opening observations of the date of expiry of the custody time limit in relation to this Claimant, we consider that he acted unlawfully by fixing a trial date without first deciding whether there was “good and sufficient cause” for its extension.

Strictly speaking, therefore, and contrary to the analysis of Counsel appearing before us, the issue of whether the convenience of counsel could constitute a “good and sufficient cause” for extending the custody time limits does not arise, at least as regards the decision actually made at the PCMH. However, in deference to counsels’ submissions, and in recognition of public importance of the issue, it is appropriate to address the convenience of counsel point. In any event, if all reasonable Crown Courts properly seized of the matter on 27^th August 2014 would have extended the custody time limit in these circumstances, the Defendant’s failure to address the issue would not sound in any legal consequences.

Our attention has been drawn to two authorities. In R (Lake and Bennett) v Northampton Crown Court [2001] EWHC 165 (Admin), the Crown Court extended the custody time limit to meet the convenience of counsel for one defendant who was on bail at the expense of his co-accused who was in custody. Rose LJ said, at paragraph 11:

“To my mind, the convenience of defence counsel appearing for a defendant who is on bail cannot be good and sufficient reason for extending custody time limits in relation to co-accused who are in custody. Furthermore, it does not appear that there was in the present case the sort of rigorous scrutiny in relation to the imminent expiry of the custody time limit the following day which the history of this case warranted”

This decision, which was entirely fact specific, cannot assist Mr Moloney’s argument. In the present case, the Defendant was faced with three defendants, all in custody, meeting more complex allegations which would take much longer to try.

In AFP Bell [2002] EWHC 3248 (Admin), this Court was confronting a very different state of affairs from the present case, namely a 3-4 month trial involving nine active Defendants. The trial date was vacated on three occasions, and then on 20^th March 2012 the Court fixed the new trial date as 7^th October 2012, taking into account the convenience of counsel and the fact that the only realistic choice of dates was either early September or early October. On the same occasion, the Judge extended the custody time limits.

Bell J upheld the decision of the Judge. His analysis of Lake and Bennett was that this was a case turning on its own particular facts, and that Rose LJ should not be understood as seeking to lay down a hard principle that where the convenience of defence counsel appearing for a defendant on bail had been met by postponing the date of trial, then it was not possible to extend custody time limits in respect of a co-defendant who was in custody. In any event, we would add, as has already been pointed out, that the sole principle capable of being derived from Lake and Bennett is one applicable to a situation where the convenience of counsel for a defendant on bail is sought to be deployed as a reason for overriding the Article 5 rights of a co-defendant in custody. Only in rare circumstances would that be appropriate.

At paragraphs 19 and 20 of his judgment, Bell J said this:

“However, I cannot fault the judge’s assessment of Lake and Bennett. It seems to me that, although Mr Tehrani has urged that greater efforts could have been made to find a venue where the trial could be heard well before 6^th October, that was unrealistic in a case where there were nine active defendants and the trial was expected to take three, perhaps four, months. Although it is true that custody time limits were in the end extended for a period of some 48 weeks and for six weeks from April 2002, the realistic extension was from a possible trial date in early September to the actual trial date fixed in early October. The most it was two months from about the middle of August to October. A month, and especially two months, is not to be neglected where a suspect, still untried and unconvicted, is in custody; but that has to be weighed against the disruption and possible unfairness which may be caused if there have to be significant changes in the teams of lawyers who are representing the parties, both defendants and prosecution, in a case such as this. No one was in a better independent position than Judge Morris, who had been seized of the case throughout, to assess the complexity of the case and the value to achieving a fair trial of retaining as many of the existing counsel as possible, including counsel for the Crown, however competent and experienced a junior he may have had.

Having considered all the points made by Mr Tehrani in his very thorough skeleton argument and in summary before us today, I cannot fault the judge’s approach to the problem he faced on 20^th March 2002, nor can I fault the decisions, including the extension of custody time limits, which he made. It follows that in my view this application for judicial review, were permission granted, would have no prospect of success and I would refuse the renewed application.”

The correct interpretation of AFP Bell is that it too is a decision confined to its own facts, but if an experienced Crown Court judge makes a balanced, reasoned decision which reflects the competing interests in play, this Court will be very slow to intervene on any application for judicial review. Lord Bingham CJ made precisely the same point, albeit far more elegantly, in R v Manchester Crown Court ex parte McDonald [1999] 1 Crim App R 409. He also observed that it is neither possible nor desirable to attempt to define what may or may not amount to good and sufficient cause in any given case. Context is all.

In those circumstances, it would be wrong for this Court to express any general statements of principle as to when the convenience of counsel could or might amount to a “good and sufficient cause” for the purposes of Section 22(3) of the Prosecution of Offences Act 1985. All that may be said is that, in a very serious case such as this, a decision which reflects counsel’s convenience is not incapable of being lawful.

The fact that HHJ Morris QC had regard to the convenience of counsel when he fixed the trial date is not a factor which avails the Defendant. The point has already been made that the sequence of decision making undertaken on that occasion was the wrong way around. Although, in terms of its practical reality, the Court’s decision had the effect of almost binding a subsequent judge’s hands, and thereby had the contingent effect that the custody time limit was all but extended, no proper decision under section 22(3) was ever made.

Had attention been given to that subsection, at the very least one would have expected the Court to investigate the strength of and reasons for the co-defendants’ apparent loyalty to leading counsel who had been instructed, and the availability of potential substitute counsel for a 3-week trial in late November. This level of judicial scrutiny was not undertaken. In such circumstances, we would hold that even if HHJ Morris QC’s ruling might in some way be envisaged as a decision to extend the custody time limits made under section 22(3), it was procedurally flawed in that it lacked the vigorous and stringent examination mandated by this Court in Raeside. For the avoidance of doubt, we would not go further and hold that his decision was unlawful, on this hypothesis, because it had regard to the convenience of counsel. That is a factor which, if properly balanced against others, is capable of justifying an extension of the custody time limits.

However, the legal errors committed on 27^th August 2014 do not, without more, avail the Claimant to this application. He has not sought to challenge that decision in these proceedings, and could not in any event have done so in the light of section 29(3) of the Senior Courts Act 1981. We have rejected Mr Hallam’s argument that HHJ Morris QC made a decision under section 22(3) of the 1985 Act – and, consequently, section 22(13) cannot operate to disapply section 29(3). The Claimant’s sole challenge is to the decision of HHJ Wide QC given on 5^th December 2014.

On that occasion, the Court was confronted by what it called “an interesting point”. In reality, however, it was a mixture of fait accompli and imbroglio.

HHJ Wide QC’s room for manoeuvre was exceptionally limited because the possibility of listing the trial before 9^th February 2015 was remote. It is true that this possibility was not investigated, and such an investigation might have included searching for an alternative venue, but no-one submitted to HHJ Wide QC that such an enquiry should be undertaken. The learned Judge was quite entitled to resolve the issue on the basis of the submissions advanced before him, and it is reasonable to infer that he was aware of the general state of the lists in the Court in which he sat. He correctly considered that counsel’s convenience was capable of being a “good and sufficient cause” for extending the custody time limits (albeit, in so doing mischaracterised Mr Moloney’s submissions to the contrary), and recognised that the issue was finely balanced. It is clear from the fuller transcript that the learned Judge had read into the case, and knew far more about its nature and potential complexities than does this Court.

We do, however, accept Mr Moloney’s submission that HHJ Wide QC’s assumption that HHJ Morris QC “obviously thought that there was a good enough reason to direct that this trial take place in February”, cannot be supported. Although HHJ Wide QC did not have a transcript of what his brother judge had decided, he knew that no decision had been made at the PCMH regarding the custody time limits. In such circumstances, it was entirely unsafe to assume that any judicial adjudication had been made within the ambit of section 22(3).

Nonetheless, HHJ Wide QC’s error carries the Claimant’s argument forward only a very short distance. Putting the matter in the way in which we have done demonstrates that the decision that fell to be made on 5^th December was not inextricably intertwined with the earlier decision. HHJ Morris QC made a case management decision, and HHJ Wide QC made a separate decision under section 22(3). That the earlier decision, albeit flawed, could not be challenged in judicial review proceedings for jurisdictional reasons does not mean that the later decision, freed from the constraints of section 29(3), must be deemed to be infected by the same flaws; the contention that it is involves a non sequitur. Equally, the fact that HHJ Wide QC had few if any practical options open to him does not mean that the two decisions should be envisaged as forming a continuum, rather than being discrete. Furthermore, and applying ordinary judicial review principles to this issue, we cannot discern any error in his express decision that the case could not proceed to trial the following Monday, and his implied decision that a date earlier than 9^th February was neither feasible nor desirable.

This case shares some similarities with AFP Bell inasmuch as the range of options open to HHJ Wide QC was heavily circumscribed.

It has not been demonstrated that HHJ Wide QC erred in principle in reaching the decision he did, or that he took into account irrelevant considerations on a narrow Wednesbury basis. That being so, the issue becomes this: was his decision perverse or irrational in the broader Wednesbury sense?

To this question we apply the heightened Wednesbury test appropriate to a case involving the liberty of the subject: see paragraph 38 of the decision of this Court in R(Gibson) v Crown Court at Winchester [2004] 1 WLR 1623. HHJ Wide QC gave a reasoned, extempore judgment which balanced the relevant considerations and reflected the practical realities. Overall, we cannot conclude that HHJ Wide QC’s decision is assailable on this basis.

It will be clear from this judgment that, in future, trials involving defendants remanded in custody should not be listed for trial after the expiry of the custody time limits without proper and rigorous judicial consideration first being given to the statutory questions posed by section 22(3) of the Prosecution of Offences Act 1985, namely (i) whether there is “good and sufficient cause” for granting the extension, and (ii) whether “the prosecution has acted with all due diligence and expedition”. The errors perpetrated in this case arose because the decision making process was segmented; and, in consequence, performed in the wrong sequence.

The guidance documents mentioned under paragraphs 39-40 above need to be reconsidered. The statutory test is not whether there are unusual or exceptional circumstances, but whether the Court is satisfied as to good and sufficient cause. Secondly, it is over-stating the matter to say that the convenience of counsel could never amount to a good and sufficient cause. We can envisage circumstances in which it might – to take just two examples, the trial of a vulnerable defendant who trusts one particular barrister who is well-known to him; or linked fraud trials with common counsel. Furthermore, the CPS’ guidance needs to be less prescriptive. Lord Bingham CJ has authoritatively stated that it is neither possible nor desirable to define “good and sufficient cause”.

This application for judicial review must be dismissed.