Daley & Ors R (on the application of) v Wolverhampton Crown Court & Anor

An extension of custody time limits requires both good and sufficient cause for the extension and prosecution conduct meeting the statutory standard of due diligence and expedition. A failure by the prosecution may prevent an extension where it contributed causatively to the need for more time. A Crown Court judge must assess the effect of earlier prosecution default by reference to the listing possibilities that would have existed had the case been ready at the proper time. A decision based on a material misunderstanding of an earlier ruling, or on an incomplete causation assessment, is unlawful and may be quashed on judicial review.

The claimants were defendants in a prosecution for conspiring to supply class A drugs. The trial was delayed, in part because video surveillance evidence was served late. A Crown Court judge refused an initial application to extend custody time limits. After the trial date was later vacated because of court listing difficulties, HHJ Chapman granted a further extension.

The claimants sought judicial review of that decision. The central issues were whether HHJ Chapman had misunderstood the earlier ruling and whether he had properly assessed whether the prosecution’s failure to serve the video evidence had contributed to the need for an extension.

1. The decision was quashed. HHJ Chapman had misunderstood Judge Tonking’s ruling. The earlier finding of lack of due diligence and expedition was not confined to the five-day delay in complying with the order for service of the video evidence. It also concerned the earlier failure to serve that crucial evidence in time for the January and February plea and directions hearings.
2. Under section 22(3) of the Prosecution of Offences Act 1985, the court had to be satisfied both that there was good and sufficient cause for extending the custody time limits and that the prosecution had acted with all due diligence and expedition. A lack of due diligence was not necessarily an absolute bar where it had not caused the need for the extension. Causation was therefore material.
3. HHJ Chapman had investigated listing possibilities from the position existing in March. He had not shown that he had carried out a comparable investigation into what could have been achieved if the plea and directions hearing had occurred in January or February. Judge Tonking’s ruling implicitly, and in places expressly, treated the late service of the video evidence as contributing to the late fixing of the trial. The conclusion that the case could not have been tried before 28 April, regardless of when the earlier hearings had taken place, was therefore inadequately supported.
4. The court should be slow to interfere with a Crown Court judge’s decision on custody time limits, but that restraint did not prevent intervention where the decision was vitiated by material legal or evidential error.
5. Because the relevant custody time limits had expired, the court could not provide effective reconsideration of the extension. The claimants were admitted to bail, subject to residence, curfew, reporting and foreign-travel-document conditions. Costs were ordered from central funds, with legal aid assessment.

• Wolverhampton Crown Court: HHJ Tonking refused an initial extension of the custody time limits. HHJ Chapman later granted a further extension.
• High Court (Administrative Court): the claimants’ judicial review claims succeeded. HHJ Chapman’s decision was quashed and the claimants were admitted to bail.