R (on the application of Bernard) v The Crown Court Sitting at Snaresbrook

This is my judgment on the rolled-up hearing of the claimant’s application for judicial review of the decision of HHJ Del Fabbro (also referred to as “the judge”), made on 30 September 2025 at the Crown Court sitting at Snaresbrook, to extend the custody time limit (“CTL”) by just over five months, to 6 March 2025. The claimant’s trial is listed to commence on 2 March 2026.

The claimant was represented before me by Mr Sherwani, who also appeared below (although he did not appear for the claimant on all hearings before the Crown Court); Ms Millar (for the Interested Party (“IP”)) did not appear for the prosecution below; the defendant was not represented before me and has played no part in these proceedings, other than to file an acknowledgement of service.

The claimant is charged on an indictment with the following counts: (1) putting a person in fear of violence by harassment between 1 October 2024 and 4 April 2025, contrary to section 4(1) of the Protection from Harassment Act 1997 (count 1), (2) five counts of assault by beating between 15 March 2025 and 3 April 2025, contrary to section 39 of the Criminal Justice Act 1988 (counts 2 to 6) and (3) one count of criminal damage on 3 April 2025, contrary to section 1(1) of the Criminal Damage Act 1971 (count 7).

In relation to counts 1 to 6, the complainant is the claimant’s partner, with whom he had been in a relationship for about a year at the time of his arrest and with whom he had had a child, born in the early spring of 2025. On 3 April 2025, the complainant’s sister noticed she had a black eye; the complainant later sent her sister a message which said, “help me”, and told her that the claimant had been beating her and, since their baby was born, this was occurring almost every day. As a result of these communications the police were contacted and, later the same day, attended the address shared by the claimant and his partner.

It is said that, when police spoke to her, the complainant initially denied she had been assaulted, but, once she knew the claimant was no longer in the property, she explained that she had been assaulted multiple times by the claimant since the birth of their four week old baby. Her account included details of the following incidents: (a) around four weeks earlier, she had woken up to find the claimant holding a pair of scissors in their bed, and he threatened to cut open the scar where she had recently had a caesarean section if she carried on making him angry; (b) on or around 18 March 2025, when they were at Whipps Cross hospital with their baby, he punched her in the arm, kicked her in the leg, and smacked her on the head; (c) on 2 April 2025, the claimant slapped her in the face, causing a black eye; (d) earlier that morning, on 3 April 2025, she told the claimant that she wanted to leave him, and he told her he would kill her if she left with their baby.

The complainant told the police that she was scared of the claimant and that she wanted to leave him. She later sent nine photographs to the police showing injuries which she said had been caused by the claimant, including bruising, a cut lip and a black eye. She also provided screenshots of messages between herself and the claimant, which included the claimant telling her “fuck around me I’m just gonna kill u” and “if that’s your plan u need to die”.

The claimant was arrested (also on 3 April 2025) and transported to Brixton police station. While in police custody, the claimant caused flooding in the cell and graffitied the walls; these matters gave rise to count 7 on the indictment.

I have summarised the facts relied on for these charges from the description provided by the IP. Ms Millar has explained to me that, on the day of the claimant’s arrest (3 April 2025), a first account was taken from the complainant, recorded by video, from which the IP has taken its description; I understand that, should the complainant not provide a statement in the proceedings before the Crown Court, the IP may seek to rely on this first account in support of the case brought against the claimant.

On 5 March 2025, the claimant appeared before Croydon Magistrates’ Court; his application for bail was refused on the basis that there were substantial grounds to believe he would interfere with witnesses and commit further offences. The claimant was remanded in custody and sent to the Crown Court.

The pre-trial and preparation hearing (“PTPH”) took place on 2 May 2025, before HHJ Pounder, sitting at Snaresbrook Crown Court. The claimant pleaded guilty to the criminal damage charge (count 7), but not guilty to all remaining counts.  An application for bail was made on the claimant’s behalf, but was again refused; it was stated that there were uncertainties about the claimant’s address and it was noted that “this is a domestic violence case with a number of allegations over a period of time”. The trial was listed for 3 March 2026, with a three-day time estimate. In his widely shared comment on the digital case system (“DCS”), HHJ Pounder noted that the CTL was 3 October 2025, and that an application for this to be extended was to be made at the further case management hearing (“FCMH”) on 22 September 2025. Mr Sherwani has told me that, at least in some courts, it is not uncommon for trials to be listed for a date beyond the CTL, with a hearing listed for a date nearer the expiry of the CTL, when efforts will be made to see if an earlier listing might then be arranged or for consideration of any application to extend the CTL. I do not know whether that is something that regularly occurs at Snaresbrook Crown Court, but there is nothing I can see to suggest there was considered to be anything exceptional about the listing in this case.

On 12 May 2025, a further application for bail was refused by HHJ Shanks, as there had been no material change in circumstances. On 15 May 2025, it was recorded that a renewed bail application was withdrawn as addresses had not been checked by the police, but that this would be reinstated once those checks had been carried out. HHJ Pounder made a record on DCS to this effect, ending with the comment: “No promises given as to the grant of bail”.

On 12 June 2025, a further application for bail was refused by HHJ Pounder, it being noted that the proposed address was close to the complainant’s family and that the “bail package put forward does not allay my concerns”. It seems to have been left that a future application might be made that addressed the points identified, but the widely shared note on DCS again stated “No promises”.

By application of 17 September 2025, the prosecution applied for an extension to the CTL. The application summarised the relevant legal principles and the factual background to the case (as set out above); it was noted that there had been no previous extension to the CTL but that the date for trial had been set outside that period; the procedural history was explained, and the steps taken by the prosecution to advance the case were recorded. The prosecution also set out its continued objections to bail: accepting the claimant was of previous good character, it was said that the risk in this case was particularly grave.

The case was listed for a hearing of the CTL extension application before HHJ Canavan on 22 September 2025, but this was adjourned to 26 September 2025; in her widely shared comment on the DCS, HHJ Canavan noted that defence counsel had not taken instructions in respect of an alternative bail address other than an address that had been rejected as unsuitable.

In the meantime, on 22 September 2025, those acting for the claimant filed a response to the prosecution’s application for an extension of the CTL. The relevant case-law was summarised and it was noted that the claimant was 22 and had no previous convictions; it was further objected that, if the CTL was extended to the March 2026 trial date, the claimant would have been remanded in custody for the equivalent of a 22-month sentence.

The re-listing of the CTL extension application hearing before HHJ Pounder on 26 September 2025 was then adjourned once again for the claimant’s proposed bail addresses to be checked by the police. In his widely shared comment on DCS, HHJ Pounder made a note of four matters relevant to the court’s consideration of conditional bail; he further recorded that the prosecution did not intend to apply to extend CTL. On 30 September 2025, prosecution counsel responded to that comment, stating that the prosecution’s position was that bail was opposed and there would be an application to extend the CTL.

The matter came back before the court on 30 September 2025, when it was listed before HHJ Del Fabbro.

At the outset of the hearing, prosecution counsel first clarified that the application to extend the CTL was still pursued and bail continued to be opposed. Mr Sherwani has informed me that, shortly before the hearing commenced, prosecuting counsel had told him that the police no longer had any objection to the address the claimant had proposed. Mr Sherwani has explained to me, however, that, although the lack of continued objection to the proposed address could have been relied on as amounting to a material change in circumstances (not least as he had considered that HHJ Pounder had indicated bail would be granted if there was an approved address), a tactical decision was taken not to pursue a bail application at this hearing, because that would raise issues that the court would not otherwise take into account when considering the application to extend the CTL. As I understand the position, it was thus felt that the focus should be on resisting the extension to the CTL.

In any event, it having been made clear that the CTL extension application was still pursued, the judge took time to read the written application, making clear that he had already read the defence response. During the course of the hearing, the judge also caused enquiries to be made of the court list office to see if the trial could be given an earlier listing, either at Snaresbrook or at another court in the regional cluster, but the response was that the case could not be accommodated earlier than its existing listing. Although not recorded on the transcript, Mr Sherwani has accepted these enquiries were made, and that the parties were kept informed of these matters by the judge.

Having read the prosecution’s application, the judge heard from Mr Sherwani. During the course of those submissions, the following exchange took place:

“MR SIRWANI: ..., there are two issues I set out in my note. The first being there’s not been a sufficient reason. ... the second being that even if the custody time limit is extended, Mr Bernard is reaching time served for the offences.

JUDGE: I mean, on the face of it, the allegations reflect a rather brutal approach to this relationship, and it raises serious concerns.

MR SIRWANI: If I may, Your Honour? In my submission, that’s not relevant for the CTL application today.

JUDGE: No, no, I am talking about ... the likelihood of, if convicted, where ... -the likely sentence, and that is what I am talking about. Yes, all right. You know, it is all a complete denial, which, certainly ...

THE DEFENDANT: I didn’t do it.

JUDGE: Well, I hear mutterings. Somebody did. Somebody bashed this woman and she did not just hit her head. It is ridiculous. Be a man. Stand up to what you have done.

THE DEFENDANT: I promise you. I swear on my life-

JUDGE: I do not want to know.

THE DEFENDANT: -I didn’t.

JUDGE: I do not want to know but stop muttering.

...”

At a later point during Mr Sherwani’s submissions, the judge responded to the suggestion that the listing difficulties in this case were due to a lack of funding, interjecting:

“… that is a media headline, .... Those of us who operate at the very nub of what is going on do not find that the lack of funding is one of the principal causes. It is the fact that ... the crime figures have gone up exponentially. The number of cases that are sent to the courts are growing on a daily basis. It has got nothing to do with the resources the fact that the courts are inundated with cases. We are living in a very criminally orientated society. ... We have got to do what we can and throwing money at the problem is not going to resolve it. What it needs is all round, by everyone involved in the criminal justice system, operating efficiently and effectively to ensure that trials are ready.”

Subsequently responding to Mr Sherwani’s submission that, if the CTL were extended to March 2026, the claimant would have “spent time in custody which is far in excess of any sentence he is likely to receive”, prosecution counsel observed that, if this were found to be a B1 category case under the relevant sentencing guideline for the harassment offence (“conduct intended to maximise fear and distress, and persistent acts and over a prolonged period, there is serious distress caused to the victim”), the starting point would in fact be two and a half years after trial.

In deciding to extend the CTL in this case, the judge provided his reasoned ruling, ex tempore, as follows:

“Right, I apply the principles, which are now well rehearsed in these courts, where an application is made to extend the custody time limit. There are three criteria that I have to take into account in whether – as to whether I extend the custody time limit or not. The first is whether the prosecution have acted with due diligence and expedition in getting the case trial ready. There is no dispute in this particular case that that is so. The defence do not take any issue with that.

The courts have attempted to set stage dates, which would have led to a potential trial within the original custody time limit, which expires on 3 October 2025. As far as I can tell, those stage dates have been complied with and, in those circumstances, I have to go on to consider whether there is now good and sufficient cause for extending these custody time limits to a date beyond the listing of this case for trial.

The case is listed for ... 2 March of 2026. It would mean extending the custody time limit by at least, October – by approximately, four-and-a-half maybe five months, if my maths is right. It is a substantial extension of the custody time limit. Now, these custody time limits can only be extended if the Court finds good and sufficient cause. But, of course, I do have a discretion which needs to be exercised in order to determine whether it is right that that custody time limit should be extended or not.

So, dealing with good and sufficient cause, the Courts are currently facing a dilemma with many, many trials coming into the Court system which need to be accommodated, and this is an unprecedented increase in cases which are being received by the Courts. And as the Courts repeatedly remind parties who appear before it, from the very outset of these cases, that dealing with cases efficiently and effectively means that the parties engage and ensure that every effort is made to resolve resolvable issues. In this case, it has not been possible to resolve any issues. The defendant maintains complete denial that any of these allegations, which amount to conduct between parties who were once in a relationship and are regularly meeting, because there is a child involved, allegations which need to be tried. The Courts can only offer what is available to these Courts in terms of fitting in a case of this nature amongst the many, many other cases which are received into the Court system.

It is submitted on behalf of the defendant that a lack of resources, funding by central government, of the criminal justice system is the root cause of the issues which Crown Courts and other courts face day in and day out. There is no evidence to back that up. It is but one factor amongst many, many others, some of which I have touched upon, including the fact that there are unprecedented increases in trials being – coming before these courts, something which was unheard of a decade ago in terms of volume and the nature of the allegations which these courts have to try. So, it is but one of several factors.

The reality is that this case has to take its turn amongst many other priority cases. And by priority, I mean high priority cases, they all involve defendants who are in custody, but many of those cases, they are vulnerable witnesses, children that give evidence and so on. And of course, that does not take into account the additional fact that there are some grave crimes which need to be tried in these courts, which need to be tried quickly, promptly, because of the impact it has on family members, particularly those of deceased victims.

So, taking all those factors into account and being at, what is considered to be one of the busiest courts in the land, I have day-to-day knowledge and understanding of the listing system at this Court. It is operating at its full potential, it does what it can to accommodate trials of this nature at the earliest opportunity and I know, as a matter of fact, that there are regular meetings between the List Office here and the regional cluster, so that Regional Listings will notify this Court if there are any other available slots for a case to be heard at a neighbouring court. It so happens that this week there are no other courts available to take this case and efforts this morning to secure an earlier date, earlier than 2 March, have proved futile, because the List Office has confirmed that there is no other slot available.

So, in those circumstances, I have to consider whether those reasons provide good and sufficient cause for extending the custody time limit. I do find that those are good and sufficient causes for extending the custody time limit. I have factored in, in that, my discretion. My discretion is required when considering whether, on the one hand, the defendant’s expectation to a prompt trial, and I hasten to emphasise that, expectation to a prompt trial not his bail, not the fact that he is in custody, it is generally an expectation of all defendants and society, I imagine, would want a prompt trial, as opposed to the public interest, a public interest which requires the Courts to have regard to the fact that these allegations are of such a nature that they led to the defendant’s bail being withheld in the first place. And I find that when exercising that discretion it falls heavily in favour of public interest, which means that the defendant had his bail withdrawn because of the nature of these allegations.

So, although those – the nature of the allegations itself is not good and sufficient cause, it is part of that discretion which I need to apply when considering whether the overall good and sufficient cause is made out in this case. So, in those circumstances, I am going to extend the custody time limit to a date beyond 2 March and will be the week of that – it will be the Friday of that week. It will be Friday, 6 March.”

The judge then referred to the possibility of a further application for bail, observing that it would be for the claimant to set out what change in circumstances had arisen from when bail was previously withheld. In the event, as I have already recorded, no application for bail was pursued.

On 3 October 2025 (the CTL expiry date) the claimant initiated the current proceedings, filing a claim form together with an application for urgent consideration. This came before me as the immediates judge that day and I made an order directing the parties to provide written representations on the application.  On 6 October 2025, the defendant filed an acknowledgement of service but did not make any representations to the court, and has taken no further step in the proceedings. The IP responded to the application for urgent consideration on 7 October 2025; the claimant filed a reply on 8 October 2025.

The case should have been referred to a judge as soon as practicable after 8 October, but, due to court oversight, it was only referred to Sweeting J on 20 October 2025, who ordered that the claim should be determined at a rolled up hearing, giving case management directions in that regard.

 On 23 October 2025 the IP filed an acknowledgement of service, and detailed grounds, confirming its intention to contest all of the claim; it also provided a transcript of the hearing on 30 September 2025.

By virtue of section 22(1) and (2) of the Prosecution of Offences Act 1985 (“the 1985 Act”), the Secretary of State may make regulations setting time limits in relation to the remand in custody of a defendant before trial. The relevant regulations are the Prosecution of Offences (Custody Time Limits) Regulation 1987. As amended, these provide (relevantly) that in cases sent to the Crown Court for trial the maximum period of custody between the sending and the start of the trial is 182 days (regulation 5(6B)). That period has been varied from time to time; when such variations are made, the effect of section 29 of the 1985 Act is to make them subject to Parliamentary scrutiny.

Taken together with the provisions of the Bail Act 1976, the CTL regime recognises the right to personal liberty, a right respected at common law and given expression by article 5 of the European Convention of Human Rights (“ECHR”) which provides that those who are lawfully arrested or detained:

“... shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial....”

Section 22(3) of the 1985 Act allows, however, that, if satisfied that particular circumstances exist, a court may exercise its discretion to extend the CTL:

“(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— (a) that the need for the extension is due to— […] (iii) some other good and sufficient cause; and (b) that the prosecution has acted with all due diligence and expedition.”

The overriding purposes of the 1985 Act, and of the regulations made pursuant to section 22, were explained by Lord Bingham in R v Manchester Crown Court ex p McDonald [1999] 1 WLR 841 as follows (see p 846D-F):

“(1)

To ensure that the periods for which unconvicted defendants are held in custody awaiting trial are as short as reasonably and practically possible; (2) to oblige the prosecution to prepare cases for trial with all due diligence and expedition; and (3) to invest the court with a power and a duty to control any extension of the maximum period under the regulations for which any person may be held in custody awaiting trial.”

As was recognised in R (Director of Public Prosecutions) v Crown Court at Woolwich [2020] EWHC 3243 (Admin), section 22(3) requires courts to approach CTL decisions in a way that is reflective of the purposes identified in McDonald:

“Section 22(3) requires judges and magistrates to approach their CTL decisions in three stages. First, is the need for an extension due to ... some ... good and sufficient cause; secondly, whether the prosecution has acted with all due diligence and expedition; and thirdly whether the court should exercise its discretion to grant an extension.” (Woolwich at paragraph 24)

In the present case, the second stage does not arise (it is not suggested that the prosecution has acted without all due diligence and expedition); the issues identified in this claim relate to the question of “good and sufficient cause”, and as to the exercise of the court’s discretion.

How a court is to approach the question whether there is a good and sufficient cause for the CTL to be extended, and the circumstances that might be relevant to its determination, are matters that have been considered in a number of cases.

The starting point is that it is for the prosecution to satisfy the court, on the balance of probabilities, that the statutory conditions in section 22(3) are met; it is only if the court is so satisfied that it has a discretion to extend the CTL (McDonald at p 846F).

As the case-law makes clear, certain matters cannot, of themselves, amount to good and sufficient cause for the purposes of section 22(3). Such matters include: the seriousness of the offence with which the defendant is charged (R v Governor of Winchester Prison, Ex parte Roddie [1991] 1WLR 303, at p 306); the need to protect the public (R v Central Criminal Court, Ex parte Abu-Wardeh [1998] 1 WLR 1083 at p 1088F-G); or the fact that the extension is only for a short period (Ex parteRoddie at p 306).

Otherwise, however, there is an almost infinite variety of matters that may be capable of amounting to good and sufficient cause; all must depend on the particular facts and circumstances of the case, always having regard to the overriding purposes of the legislation, and to the fact that the period specified in the regulations is a maximum, not a target (McDonald p 847H-848A). Moreover, the court must be satisfied that the cause is both “good” and “sufficient”; as Auld LJ observed in Abu-Wardeh, at p 1086:

“The use ... of the two adjectives ‘good’ and ‘sufficient’ must ... have some purpose other than mere emphasis. ‘Good ... cause’ must mean some cause for the extension of time sought, not the corresponding need to keep the defendant in custody. ‘Sufficient’ ... requires a court when considering a ‘good ... cause’ to evaluate its strength.”

More specifically, it has been allowed that difficulties in listing a case within the CTL due to resource limitations – whether that relates to the availability of a suitable judge, a suitable courtroom, or other resources – can amount to good and sufficient cause: see Abu-Wardeh at p 1090, citing the case of R v Maidstone Crown Court, Ex parte Freeman [1994] 10 WLUK 374, in which the Divisional Court declined to interfere with an extension of over four months to a fixed trial date; and, more generally, see the observations of Lord Woolf CJ in R (Gibson) v Winchester Crown Court [2004] EWHC 361 (Admin) at paragraph 31. In such cases, however, great caution is to be exercised (McDonald at p 848C); in this regard, the Divisional Court in McDonald approved the observations made by Toulson J (as he then was) sitting in the Crown Court in R v Blair and Bryant and R v Taylor (unreported) 7 October 1998, as follows:

“If difficulties of providing a judge and a courtroom are too readily accepted as both a good and a sufficient reason for extending custody time limits, there is a real danger that the purpose of the statutory provisions would be undermined. These are provisions expressly designed to protect the liberty of the citizen, assumed at the present stage not to be guilty. Of course the decision to place him in custody involves a balance of his interests against those of the public; but to keep him in custody beyond the time reasonably necessary for his case to be prepared for trial, for administrative reasons which are essentially unconnected with his case, is another matter altogether. There is no redress against that mischief for somebody who at the end of the day is found to be innocent, and those are all no doubt factors which Parliament had in mind in laying down the provisions that it did.

In construing and applying statutory provisions which impose a custody time limit, but create an exception, one must be very careful that the exception is not allowed to grow so as to emasculate the primary provision. Of course there may be situations where the 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 for a particular time, where 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. ...

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 3 weeks at worst. Yet I am being asked to extend the 16 week time limit by an additional 17 weeks. If I reached 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 indeed be to defeat the statutory purpose.”

Consistent with Toulson J’s observations, it has been held that, where the court is dealing with a routine case, and the listing difficulties are also routine – that is, due to the normal pressure of work on a crown court list – then that, of itself, will not constitute good and sufficient cause for extending the CTL; as Sullivan J (as he then was) observed in R (On the application of Miah) v Snaresbrook Crown Court [2006] EWHC 2873 (Admin), at paragraph 3:

“...One appreciates the difficulties faced by all crown courts and the pressures that they are under, but it is for the executive, if it wishes the court system to try its citizens, to will the means to enable them to be tried in an expeditious manner.”

Even in routine cases, however, particular circumstances may mean that listing difficulties could amount to good and sufficient cause for extending the CTL. In Gibson the court allowed that there might be occasions “when pressures on the court will be more intense than they usually are” (per Woolf CJ at paragraph 31), and claims of judicial review have been refused where CTLs were extended in the context of delays caused by the closure of another court centre in London (R (Kalonji) v Wood Green Crown Court [2007] EWHC 2804 (Admin)), when extensions were necessary given problems in listing trials during the Covid-19 pandemic (Woolwich), and in cases where adjournments were necessary due to the absence of legal representation arising from the dispute between the Criminal Bar Association (“CBA”) and the Ministry of Justice (R (oao DPP) v Bristol Crown Court [2022] EWHC 2415 (Admin)).

In Woolwich, having accepted that a shortage of suitable court rooms due to the pandemic was a “good” cause within the meaning of section 22(3)(iii) of the 1985 Act, the Divisional Court emphasised the need for the court to nonetheless consider whether it was a “sufficient cause”:

“41.

... A lack of capacity which results from too little space (or indeed a lack of judges or available lawyers, for example) would constitute a "good" cause for needing an extension for a CTL because on that hypothesis there would be no possibility of the trial in question proceeding whatever was done. Such a good cause may not necessarily be a sufficient one. That might be because of systemic failures or circumstances attaching to the case or defendant. At a systemic level, it is possible to envisage that a shortage of judges and recorders resulting from a dogged determination not to authorise the appointment of sufficient numbers would engage the question whether the shortage (a good cause for needing to extend a CTL) was also a sufficient one. So too if the inability to conduct a trial within the CTL were the result of systemic financial constraints which could not be overcome by moving the case to another Crown Court or substituting it for a non-custody trial about to be heard ...”

In R (McAuley) v Crown Court at Coventry [2012] EWHC 680 (Admin), specific guidance was provided as to the approach courts should take when an extension to the CTL is sought in routine cases due to resource limitations. Giving judgment of the court, Sir John Thomas P (as he then was), prefaced that guidance with the following observation:

“30.

Although the present case is what is properly described as a routine case, it is quite apparent that in the present financial circumstances facing Her Majesty's Government, pressure on court resources available to try such cases will be tight. That is without doubt a highly relevant consideration even in routine cases. However it is important to note that the Secretary of State when seeking funds for the Ministry of Justice did not make any amendment to the time limit set out in the Regulations or ask Parliament to approve an amendment. Therefore it must be inferred that the Secretary of State and Parliament considered that those responsible for the day- to-day management of HMCTS would be able to manage the money provided to them so that in routine cases, such as the present, it would not be necessary to extend a CTL unless there were exceptional or unusual circumstances.”

In McAuley, it was conceded that the CTL should not have been extended: there had been a systemic failure to ensure that adherence to budgets did not, save in highly exceptional circumstances have the consequence that routine cases with a CTL were not heard with the relevant time limit. Noting that there had been a failure to refer the case to the Resident Judge, the Divisional Court went on to explain what ought to happen where CTL extensions are sought in routine cases:

“34.

As the extension of custody time limits involves the liberty of a defendant, the Resident Judge (or his designated Deputy if the Resident Judge is away from the court centre) must be provided with information on a regular basis, so that there can be proper monitoring of cases nearing their CTL. In a small court centre, ..., budgets and other resources have to be looked on in a wider context. Such information must therefore include available alternative locations, the availability of judges, the budgetary allocation to the court and other such matters. Provided the experienced listing officer at each court gives the Resident Judge such regular information and there is close co-operation between courts, routine cases should be managed in such a way that money is always available to enable a case being heard within its CTL. ... If more funds or judges are needed at a court centre, then that information must be passed to those responsible for the provision of money who can then review the position with the judges responsible for the listing of cases. It is wrong in principle and contrary to the terms of the Practice Direction for decisions to be made which are not made under the direction of the judges responsible for listing.

35.

If, despite such careful management, an application has to be made to extend a CTL in a routine case because the funds by way of allocated sitting days are insufficient to enable the case to be heard within the CTL, then the application must be heard in open court on the basis of detailed evidence. It is ... for the prosecution to satisfy the court of the need to extend CTL. It must follow that evidence from the senior management of HMCTS must be provided well in advance of the hearing to the defendant and adduced by the CPS to the court. The judge must then subject the application and the evidence to that rigorous level of scrutiny which is required where a trial is to be delayed and a person confined to prison because of the lack of money to try the case. Although other considerations may apply to cases which are not routine, lack of money provided by Parliament in circumstances where the custody time limits are unchanged, will rarely, if ever, provide any justification for the extension of a CTL. If the Ministry of Justice concludes that it does not have sufficient funds for cases to be tried within CTL, then the Secretary of State must amend the Regulations and seek the approval of Parliament. If that is not done, the court has no option but to apply the present CTL and HMCTS must find the necessary money or face the prospect of a person who may represent a danger to the public being released pending trial.

36.

The judge hearing the CTL application must give a full and detailed judgment. ... this court recognises the decision is for the judge, but will scrutinize the matter rigorously. ...”

A failure to follow this guidance led the Divisional Court to quash a decision to extend the CTL in R (Marten) v Lincoln Crown Court [2022] EWHC 2283 (Admin), albeit that the court made clear (see paragraph 28) that a failure to strictly adhere to the procedure suggested in that case would not necessarily lead to a successful judicial review.

The third stage of the determination required under section 22(3), as identified by the Divisional Court in Woolwich, relates to the court’s exercise of its discretion: if (but only if) the court is satisfied the need for the extension is due to (relevantly) some good and sufficient cause, it may extend the CTL, it is not bound to do so. As was recognised in Woolwich (see paragraph 43), the factors that come into play in considering whether a “good” cause is “sufficient” may overlap with matters of discretion, but this stage will also permit the court to take in a wider range of considerations in determining whether, satisfied that there is a good and sufficient cause, it will go on to grant the application to extend the CTL. In Woolwich, it was advised that:

“44.

... iii) The normal requirements of exploring administratively whether a trial can be brought on elsewhere within the CTL should be followed; so too whether any non-custody cases listed for hearing can be vacated ...”

Where, however, such practical arrangements to accommodate a custody case within the CTL cannot be made, the court made plain:

“iv)

... it does not follow that it will be appropriate to extend the CTL in every case even though the need to delay a trial will be clear. In some cases, a defendant should be released subject to exacting bail conditions.”

In Bristol (in the context of listing problems arising from CBA dispute), the factors identified in Woolwich were reiterated, with the Divisional Court going on to observe:

“7.

... (c) In every case, judges should consider whether the public interests served initially by remanding the defendant in custody can now be served by stringent bail conditions. If so, this should be the preferred course.”

In Bristol particular emphasis was given to the constitutional principles that must necessarily inform the exercise of the court’s discretion under section 22(3) of the 1985 Act:

“69.

... where the cause of delay giving rise to a need to extend custody time limits is systemic, judges must be astute not to exercise the power to extend custody time limits as a matter of routine, and allow the exception to become the norm, as this would undermine the purpose of the statutory regime and remove the element of Parliamentary control which Parliament has required.

70.

This latter point is, in our judgment, of considerable constitutional significance. Parliament decided to confer power on the Secretary of State to set maximum periods for those awaiting trial in the Crown Court. It specified that regulations varying those periods should be laid before Parliament and subject to annulment by either House of Parliament. The regime reflects the fact that the setting and varying of custody time limits involves a balancing of public and private interests (the latter being the interests of the individual defendant).

71.

Parliament decided that, at the general level, this balancing exercise should be subject to democratic control. It is important not to lose sight of why. A Government which wishes to extend custody time limits will have to explain to Parliament why it considers it is necessary to do so. ... Were the Government to decide it was necessary to vary custody time limits generally in the current circumstances ... it would have to explain to Parliament why it considered it was necessary to do so. If the time limits were then increased, this would have been subject to Parliamentary scrutiny.

72.

..., there may be difficult choices here. The trade-offs involved in these kinds of resource allocation questions are, quintessentially, for the executive, subject to Parliamentary control, and not for judges.”

As is common ground before me, decisions regarding CTL extensions are susceptible to judicial review; on such applications, however, while the court will scrutinise the claim with due rigour, it will also recognise that the decision is for the judge at first instance:

“... This court has no role whatever in deciding whether, in any case, an extension should be granted or not. Its only role, as in any other application for judicial review, is to see whether the decision in question is open to successful challenge on any of the familiar grounds which support and application for judicial review.” (McDonald at p 850)

Unless the court comes to the conclusion that the judge wrongly exercised their discretion, it will not interfere (McAuley, paragraph 43); as the Divisional Court observed in Gibson, at paragraph 2:

“Decision as to custody time limits are closely related to the listing of the trials ... [which is] a judicial function for which the resident judge and the presiding judges of the relevant area have responsibility.”

I have been referred to recent rulings on applications for judicial review of decisions to extend the CTL, although I have not found these particularly helpful given the fact-specific nature of the determinations in question: see, to this effect, R (oao Mensah) v Crown Court at Manchester (Minshull Street) [2023] EWHC 2372 (Admin) per Farbey J at paragraph 19. In Mensah the trial was initially listed within the CTL but, due to lack of court availability, was then adjourned for a date a month later, with the CTL being extended by one month to accommodate the new listing. Observing that the judge’s reasoned decision demonstrated he had had regard to all relevant factors (as set out in Woolwich), the Divisional Court considered the approach taken was “unimpeachable”:

“20.

... [The judge] took a decision within his statutory discretion and so (contrary to [the claimant’s] submissions) cannot properly be regarded as subverting the will of Parliament. He was well placed to take the decision as a Circuit Judge involved with the work of the court on a daily basis. There is no reason for this court to interfere.”

Within his grounds of review, the claimant further asserts that he had a legitimate expectation that the CTL extension would not be pursued and bail would be granted if there was no prosecution objection to the proposed address. In this context, I observe that decisions as to the grant of bail are always for the court: R (Burns) v Woolwich Crown Court [2010] EWHC 129 (Admin)).

By his first and fourth grounds of claim, the claimant contends that, in ruling that the lack of a trial date within the CTL amounted to “good and sufficient” cause for the purposes of section 22(3) of the 1985 Act (or was compliant with article 5 ECHR), the judge misdirected himself. He says it was specifically this kind of routine case in respect of which it had been warned that the exception must not become the norm (McAuley; Bristol). He further submits that there was no indication that the judge had regard to the matters identified in Woolwich as being relevant to the exercise of his discretion: the claimant was a young man of 22, with no previous convictions or experience of custody, who was facing a lengthy extension to the CTL (longer than the three months identified in Woolwich) such that, if found guilty, he was likely to serve a sentence less than the time he had spent in custody on remand (not least as the complainant had not provided a statement to demonstrate category 1 harm under the guidelines).

Under his second ground of claim, the claimant contends that the judge had regard to irrelevant considerations, relying in this regard to the reference (within the ruling) to it not having been possible to resolve any issues because of the claimant’s “complete denial”, a part of the reasoning that was to be seen in the light of the judge’s admonition during submissions that the defendant should “Be a man” and (effectively) make admissions, notwithstanding his not guilty plea.

By his third ground of claim, the claimant contends that, on 26 September 2025, HHJ Pounder and the prosecution had created a legitimate expectation that, if the proposed bail address was acceptable, the CTL extension would not be pursued and bail would be granted. It was then unfair for the judge to resile from this legitimate expectation when there was a bail address that was acceptable to the prosecution.

In respect of the first and fourth grounds of claim (misdirection of law/breach article 5 ECHR), the IP contends that the judge’s approach was in line with that approved in McAuley: he regularly received relevant information so as to monitor CTL cases and had day-to-day knowledge of the listing system, there were weekly contacts with the regional cluster, and, on the morning of the hearing, the list office had again confirmed that efforts to secure an earlier trial date had been unsuccessful. Although lack of court availability was the driving factor, the judge also had regard to other relevant matters and rejected the claimant’s contentions regarding funding as unsupported by any evidence, observing instead that there had been an unprecedented increase of the number of trials before the court (not comparable to the “systemic financial constraints” envisaged in Woolwich). As for the submission that the claimant is likely to have served his sentence (if convicted) on remand, the IP points to the submissions made by prosecution counsel regarding the likely starting point (two and a half years) in respect of count 1. In addition, if convicted, the claimant would also fall to be sentenced for four counts of assault by beating and the criminal damage offence (to which he had pleaded guilty).

Turning to the second ground of claim, the IP submits that the judge’s ruling made clear that he took account of the claimant’s denial only as context, observing that it had not been possible to resolve any issues between the prosecution and defence and, as a result, there were allegations which needed to be tried; that did not constitute an error of law.

As for the third ground of claim, and the suggestion that the claimant had a legitimate expectation that “the CTL would not be pursued and bail would be granted”, the IP disputes that arose from any indication given by the prosecution. In any event, the IP contends: (i) no legitimate expectation could have arisen from anything said by the prosecution or the court, as bail decisions would be for the court determining the particular application (Burns); (ii) the doctrine of legitimate expectation had no place in this context, and (iii) it was open to the claimant to make a fully argued bail application.

Before considering the ruling in issue on this claim, it is helpful to set out that which is not in dispute.

In terms of the legal framework, the judge could only grant the application for an extension of the CTL if satisfied this was necessitated by a cause that was both good and sufficient, and if (exercising his discretion) he considered the extension should be allowed. Further, as was common ground before me (and obvious from the context), a defendant’s maintenance of his plea of not guilty could not amount to such a good and sufficient cause for these purposes (after all, that would always be part of the context for CTL decisions), nor could such a cause be established by reference to the seriousness of the allegations, or to the need for public protection (Roddie; Abu-Wardeh). An inability to accommodate a trial within the CTL due to resourcing issues could be a “good” cause, but whether it was “sufficient” would always require rigorous scrutiny of the application and the available evidence (Abu-Wardeh; McDonald; Woolwich; McAuley); a lack of resources due to on-going, systemic financial constraints would “rarely, if ever, provide any justification for the extension of a CTL” (McAuley; Miah) – to hold otherwise would be contrary to the purposes of the legislation identified in MacDonald, would give rise to a real danger that the statutory protection afforded by the 1985 Act would be undermined (McAuley), and risk trespassing across the constitutional line emphasised in Bristol.

As for the proceedings before Snaresbrook Crown Court in this case, it is accepted that this is an entirely routine trial, with a short (three-day) listing; there is nothing exceptional about the proceedings, which require no particular level of judge or prosecutor, and can be heard in any court room; the parties have complied with all case management directions, and there is no suggestion that the matter would not have been ready for trial within the CTL - the extension to the CTL (which expired on 3 October 2025) was necessitated solely because the court system could not accommodate the trial within that time. I will return to the discussion during the hearing on 30 September as to why that might have been so, but note that it is common ground that the listing of the trial in early March 2026: (i) was set at the PTPH on 2 May 2025, (ii) was some five months outside the CTL; and (iii) envisaged that an application for an extension to the CTL would be made at the FCMH on 22 September 2025.

Turning then to the wider considerations relevant to the exercise of the judge’s discretion (assuming he could be satisfied as to the necessity of the CTL extension being due to a good and sufficient cause), this is a case involving a defendant of 22, of previous good character, and with no prior experience of custody. Bail has been refused because there are grounds to believe the claimant would interfere with witnesses and commit further offences; although possible conditions for bail have been considered, the court’s concerns had not been allayed by the proposals made up to the last hearing at which this was considered, on 26 September 2025. Although, at the hearing on 30 September, the judge referred to a possible further bail application, the claimant did not pursue that at that hearing for tactical reasons (notwithstanding counsel’s understanding that there was no longer an issue regarding the proposed address for any condition of residence). As for the likely sentence if the claimant is convicted after trial, prosecution counsel suggested that the harassment count alone might warrant a starting point of two and a half years and it is further said that the other counts would, if resulting in guilty verdicts, warrant additional terms. For the defence, it is questioned whether there could be an evidential basis for a finding of category 1 harm, but it is, in any event, submitted that there would necessarily be a reduction for youth, previous good character and other personal mitigation. Given his experience of these matters, the judge will have had all these points in mind, and will have had a good sense of the likely sentence range. What is apparent, however, is that, even on the prosecution’s case, the fact that the claimant will have been remanded in custody for around 11 months before trial will mean that, if he is convicted, he will already have served a substantial majority of the time he could expect to spend in custody after sentence.

Having set out that which is not in dispute, I now turn to the reasons relied on for the extension of the CTL in this case.

As the judge made plain at an early stage in his ruling, the reason the claimant’s trial could not be brought on before the expiration of the CTL was due to the inability of the courts to accommodate it. Although it is not entirely clear from the transcript, Mr Sherwani has told me that the judge investigated the position during the course of the hearing, and it was confirmed to him that the fixture for 2 March 2026 remained the earliest date for this trial. It is apparent that the judge was very familiar with the listing practices at Snaresbrook Crown Court, with a real-world sense of the pressures on resources at that court and at other courts in the same cluster. Recognising that experience and expertise, I can accept that the judge was entitled to take the view that the listing difficulties amounted to a good cause in this context.

That, however, is only one part of the test under section 22(3) of the 1985 Act; the judge also had to be satisfied that this amounted to a sufficient cause for the extension sought. For the claimant it had been urged that this could not meet the statutory test because the limitations on the court’s resources arose from a lack of adequate funding. In (at least partly) rejecting that proposition, the judge stated “There is no evidence to back that up”, but that would suggest that there was some burden on the defence to provide such evidence, whereas the burden throughout was on the prosecution (McDonald; Woolwich). In her submissions before me, Ms Millar contended that it was apparent that the judge had made clear that he had found that this was a case of unusual pressure on the court’s resources (due to an exponential increase in crime); that, she submitted, was made clear by the judge’s observation to this effect during submissions, and by his reference to “unprecedented increases in trials” in his ruling. Accepting that the judge did refer to this increase in the volume of work before the court, I am, however, unable to see that this demonstrates he was thereby addressing the question of sufficiency.

In this regard, I note there appears to have been no attempt to undertake the process envisaged in McAuley (specifically addressing the approach courts should adopt when extensions are sought in routine cases due to resource limitations). Specifically, I am unable to see there was any rigour in scrutinising the application (which was, in any event, largely focused on the particular allegations underlying the offences for which the claimant is to be tried), or the evidence in support. Indeed, having largely (although not entirely) rejected the defence submission on inadequate funding as being unsupported by evidence, the judge seems then to have relied on an alternative cause (increase in crime) notwithstanding an absence of evidence having been provided by HMCTS in this regard (contrast the approach laid down in McAuley at paragraph 34). In making these criticisms, I am, however, conscious that the judge was giving an ex tempore ruling, dealing with this application as one of many matters in a very busy list. I further accept that experienced Crown Court judges will have an awareness of particular pressures faced by the court, and area, in which they sit, and I would agree with the observation in Marten, that a failure to demonstrate compliance with the process laid down in McAuley need not necessarily provide a basis for a successful public law challenge.

Thus accepting a need for caution when considering the ex tempore ruling in this case, a more substantive difficulty arises in that the reason apparently accepted as necessitating the extension in this instance – lack of resources due to “unprecedented increases in trials” – does not establish sufficient cause for not bringing this three-day trial on for hearing within the CTL. Even assuming that the judge was correct in identifying this as the reason why a listing could not be found within the CTL, there is nothing that would explain why that was sufficient reason for granting the extension. The listing, some five months beyond the expiration of the CTL had taken place, around five months earlier, at the PTPH on 2 May 2025; nothing had been identified at that stage as warranting an extension to the CTL, although it had been allowed that, if an application was required in this regard, this would be considered on its merits at a later stage (there was no suggestion that it would necessarily be allowed). The application of 17 September 2025 did not identify any surge in criminal trials, or other factor, that would demonstrate sufficient reason for extending the CTL for what had otherwise been treated as a standard listing of a routine three-day trial, and the suggestion that this might be to do with an “unprecedented increase” does not engage with the fact that the original listing had been outside the CTL, with nothing to suggest that this was treated as other than an entirely standard matter.

In my judgment, the judge thus misdirected himself by failing to recognise the requirement not simply to be satisfied as to the existence of a good cause, but also a cause that would be sufficient to necessitate the extension of the CTL in this case. Although a great deal of latitude should be allowed for the experience and understanding that a Crown Court judge will have in matters of this kind, a failure to adopt the approach identified in McAuley can lead to errors in approach, which is, I am satisfied, what led to the misdirection in this case.

In addition, however, there are indications that the judge also allowed his reasoning to be infected by factors that were irrelevant to the test he had to apply. Even setting to one side the suggestion that the defence had a burden to adduce evidence to show that the resource limitations did not amount to a good and sufficient cause, the judge appears to have seen the claimant’s maintenance of his not guilty pleas as relevant context to his decision. In advancing his claim under this head (“irrelevant considerations”), the claimant points to the judge’s earlier peremptory suggestion that he “Be a man. Stand up to what you have done.” That was (to put it neutrally) an unfortunate remark, suggesting that the judge was failing to treat the claimant as innocent until proven guilty, although, if that was an isolated comment with no sign that it had fed into the judge’s reasoning, I would not readily infer that this infected the judge’s ruling. When, however, seen together with the judge’s subsequent observations that “it has not been possible to resolve any issues. The claimant maintains complete denial ...”, I consider the claimant has made good his contention that in this case the judge allowed a wholly irrelevant consideration – the fact that the claimant was pleading not guilty – to infect his determination.

Looking at the other side of the balance, I am also unable to see that the judge had regard to many of the factors identified as relevant in Woolwich: no reference was made to the claimant’s age or lack of antecedents, nor did the judge provide any indication that he had taken account of the length of the CTL extension, and the period over which the claimant was to be remanded in custody as compared to the likely length of any sentence. The judge did refer to the reasons why bail had previously been refused but did not re-visit this issue (as suggested in Bristol), although I accept that was largely because the defence took a tactical decision not to renew a bail application at the hearing.

For completeness, I should say that I see nothing in the claimant’s third ground of claim (“legitimate expectation”). Bail decisions would plainly be for the court, regardless of any position intimated by the prosecution (see Burns). Moreover, although HHJ Pounder had (on 26 September 2025) identified matters that he considered would be relevant to the court’s consideration of conditional bail, he had not reserved the matter to himself and plainly could not purport to bind any other judge charged with any future hearing in this case.

For the reasons I have provided, I give permission to the claimant to apply for judicial review and allow the claim on grounds 1 and 2; I make no separate ruling on ground 4 (as Mr Sherwani put the case, this was effectively subsumed within ground 1 and was not run as a stand-alone ground); I dismiss the claim on ground 3.

The parties have addressed me on the question of disposal. For the claimant it is contended that, if the claim should be allowed, the decision to extend the CTL should be quashed with immediate effect. In the alternative, however, Mr Sherwani accepts that this might be a case that would warrant the making of a deferred quashing order pursuant to section 29A of the Senior Courts Act 1981, which would allow the quashing not to take effect until a specified date. For the IP, although resisting the making of a quashing order on the merits of the case, Ms Millar accepted that a deferred quashing order might be an appropriate course were the court to remit the matter to the original decision-maker.

Pursuant to CPR 54.19, where the court makes a quashing order in respect of the decision to which the claim relates, it may remit the matter to the decision-taker (here, Snaresbrook Crown Court) and direct it to reconsider the matter and reach a decision in accordance with the judgment of the court. If I were to make an immediate quashing order in the present case, that would, however, not allow time for the Crown Court to reconsider this matter and/or to determine any conditions for the claimant’s bail, as deemed appropriate. As Fordham J observed in R (on the application of Sierotko and another) v Crown Court at Manchester Crown Square [2023] EWHC 1187 (Admin) at paragraph 28, a quashing order in these circumstances would logically lead to entitlement to immediate release without any conditions. A deferred quashing order provides “remedial flexibility”, which would avoid the problem identified by Fordham J, allowing the court to set a date by which unlawful conduct must be brought to an end, while providing that it might continue in the meantime (see R (ECPAT UK) v Kent County Council [2023] EWHC 2199 (Admin), per Chamberlain J at paragraph 6).

In the circumstances, I will make an order quashing the decision to extend the CTL in this case, that will take effect 14 days after the date on which this judgment is handed down. In the meantime, I direct that this matter is to be remitted to the Snaresbrook Crown Court, to reconsider the matter and reach a decision in accordance with the judgment of the court, and to determine any conditions for the claimant’s bail, as deemed appropriate.