Leeds Crown Court Ex Parte Wardle

The House of Lords answered the certified question whether the laying of a new charge in the magistrates' court causes a fresh custody time limit to run. The court held that, as a general rule, each distinct offence charged attracts its own statutory custody time limit under section 22 of the Prosecution of Offences Act 1985 and the Prosecution of Offences (Custody Time Limits) Regulations 1987 (in particular regulation 4).

Two narrow exceptions were recognised: (1) where the new pleading is in substance the same offence as the original (for example mere amendment of particulars), and (2) where preferment of the new charge is an abuse of the court's process because it was brought solely or primarily for the improper purpose of substituting a fresh custody time limit. The Divisional Court and the majority of Law Lords concluded that the substitution of manslaughter for murder in the present case created a new 70‑day limit; there was no finding of abuse and no breach of Article 5 ECHR or the Human Rights Act 1998.

Background and facts:

• The appellant was arrested initially in August 1998, charged with murder on 7 January 1999 and first appeared in Leeds Magistrates' Court on 8 January 1999. A 70‑day custody time limit under regulation 4(4) of the 1987 Regulations ran from that date. Shortly before expiry, on 19 March 1999, the Crown withdrew the murder charge and laid a manslaughter charge; the magistrate accepted that a fresh 70‑day custody time limit ran from that appearance and granted an extension on the murder charge. The Crown Court and the Divisional Court subsequently held that a fresh time limit ran on the manslaughter charge. The appellant was later committed, pleaded guilty to manslaughter and was sentenced.

Nature of the application / relief sought:

• The appellant sought to overturn the decision that the substituted manslaughter charge attracted a fresh custody time limit and argued that (i) the murder charge already implicitly included manslaughter (relying on section 6 Criminal Law Act 1967), (ii) the substitution should not restart the time limit absent new facts, and (iii) alternatively that the substitution in the circumstances amounted to an abuse of process and/or breached Article 5 ECHR as applied through the Human Rights Act 1998.

Issues framed by the court:

• When does charging of an offence in the magistrates' court cause a fresh custody time limit to run? Whether section 6(1967) alters that analysis. Whether the Regulations should be construed compatibly with Article 5 by reading in a broader meaning. What is the ambit of "abuse of process" in this context?

Court's reasoning and disposition:

• The majority applied ordinary statutory construction to section 22 and regulation 4 and concluded that the regulatory scheme proceeds by reference to the particular offence charged in the information; each distinct offence attracts its own custody time limit. The court rejected the proposition that section 6(2)/(3) Criminal Law Act 1967 means that alternative offences available at trial are to be treated as the same offence for time‑limit purposes.
• The Lords acknowledged policy concerns but concluded that any wider change should be made by Parliament or the executive; however they accepted the established exceptions: (a) where the new information is merely a restatement of the old offence with different particulars (not a new offence in law), and (b) where the new charge is brought solely to defeat custody time limits and thus amounts to an abuse of process. The House held that Article 5 was not contravened on the facts and that section 3 Human Rights Act did not require reading in other words to the regulation. The appeal was dismissed.

Appeal dismissed. The House of Lords held that, as a general rule, each distinct offence charged before the magistrates attracts its own custody time limit under section 22 of the Prosecution of Offences Act 1985 and regulation 4 of the 1987 Regulations; exceptions apply where the new information is in substance the same offence or where the preferment of the new charge amounts to an abuse of process. On the facts manslaughter was a distinct offence, no abuse was established, and there was no breach of Article 5.

Magistrates' Court (Leeds) remanded appellant on a murder information (first appearance 8 January 1999). On 19 March 1999 prosecution substituted manslaughter; stipendiary magistrate extended time limit and treated new charge as attracting a fresh limit. Crown Court (Judge Hoffman) on 22 March 1999 held original extension unjustified but accepted a new time limit for manslaughter. Judicial review to the Divisional Court (Mitchell J and Kennedy LJ) dismissed on 26 April 1999. Appeal to the House of Lords ([2001] UKHL 12) — appeal dismissed.