Khan, R (on the application of) v Wolverhampton Crown Court

An application to extend custody time limits requires proof, on the balance of probabilities, of both good and sufficient cause and due expedition by the prosecution. Although court or courtroom unavailability may constitute good and sufficient cause, the judge must conduct a sufficiently rigorous inquiry into the circumstances causing the delay. The inquiry should examine why the original fixture was lost, why an earlier trial was not possible, and whether the difficulties were genuinely insuperable. Judicial review does not involve reconsidering the merits of the extension application. It examines whether the decision was lawful and rational on familiar public-law grounds. A decision based on materially insufficient information may be Wednesbury unreasonable and must be quashed.

The claimant faced two charges of wounding with intent to cause grievous bodily harm and had been remanded in custody. His trial was fixed for 5 August 2003, but the fixture was removed by the listing office on the preceding day after another case occupied the trial judge and courtroom. No prompt replacement date was arranged, and custody time limits were due to expire on 5 September.

The Crown Court extended the custody time limits to 17 January 2004, accepting that the listing decision had been made bona fide and on reasonable grounds. The claimant sought judicial review, arguing that the judge had not sufficiently investigated why the fixture had been lost and whether the resulting delay constituted good and sufficient cause.

1. The decision was quashed. The Crown Court judge had reached his conclusion on good and sufficient cause without a sufficiently rigorous inquiry into the development of events and the provenance of the listing office’s misjudgment.
2. Under section 22(3) of the Prosecution of Offences Act 1985, an extension required the judge to be satisfied, on the balance of probabilities, both that there was good and sufficient cause and that the prosecution had acted with all due expedition. The prosecution’s diligence was not disputed, so the issue was good and sufficient cause.
3. The Administrative Court’s function was supervisory. It was not to decide whether an extension should be granted, but to determine whether the Crown Court’s decision was open to challenge on familiar judicial-review grounds. The court should show restraint in disturbing such first-instance decisions.
4. Listing difficulties, including the unavailability of a suitable judge or courtroom, could amount to good and sufficient cause. However, the court had to obtain sufficient information and conduct a rigorous examination. That included investigating why the case could not sensibly have been tried before expiry of the custody time limit and, where administrative error caused delay, whether the resulting difficulties were genuinely insuperable.
5. The judge knew little about the other case which had displaced the claimant’s trial. He had not investigated its listing history, seriousness, custody position, witness circumstances, or why its demands prevailed. The material before him therefore did not rationally support the conclusion that good and sufficient cause existed. His decision was Wednesbury unreasonable and was quashed.
6. The consequence was that bail conditions had to be considered. The judgment records agreed conditions concerning residence, exclusion from Dudley, non-contact, reporting, passport surrender and curfew. The claimant’s costs were ordered to be paid from central funds.

• Wolverhampton Crown Court: On 4 September 2003 HHJ McCahill QC extended the claimant’s custody time limits to 17 January 2004.
• High Court (Administrative Court): The extension decision was quashed on judicial review.