Customs and Excise, R (on the application of) v Maidstone Crown Court

A Crown Court judge considering an application to extend time for appealing a magistrates’ court order must exercise a broad discretion directed towards achieving justice between the parties. The essential considerations are the reasons for the delay and the merits of the proposed appeal. Neither consideration is automatically decisive, but both must be addressed, particularly where the delay is substantial and the successful party may face prejudice and expense. A failure to consider those matters renders the decision unlawful. A judge should also give succinct reasons for granting or refusing an extension, especially where the application is made without notice and affects another party.

HM Customs and Excise brought two applications for judicial review concerning decisions by HHJ Simpson at Maidstone Crown Court. In each case the judge granted an extension of time for an appeal against condemnation proceedings in the magistrates’ court. Michael Graham’s application was made about 16 months after the order, and Gerald McSorley’s application was made about 18 months after the order. The decisions were challenged because the judge did not disclose consideration of the reasons for delay or the merits of the proposed appeals. The central issue was the proper approach to an application under rule 7 of the Crown Court Rules 1982.

1. Outcome. Both applications for judicial review succeeded. The decisions granting extensions of time in the cases of Michael Graham and Gerald McSorley were quashed.
2. Rule 7(6) of the Crown Court Rules 1982 confers a broad discretion. It is not subject to a closed list of factors, but must be exercised in all the circumstances and according to established principles governing extensions of time. The objective is justice between the parties, not simply relief for the applicant.
3. The essential framework, identified by reference to R v Croydon Crown Court ex parte Smith 1983 77 Cr App R 277, requires consideration of two matters: the reasons for the delay and the merits of the proposed appeal. The weight given to an unexplained delay depends on its length. A lengthy delay requires proper explanation, and the court must consider whether the appeal has sufficient merit to justify imposing further costs and prejudice on the successful party.
4. The judge need not reach a final view on the merits when granting permission. However, the merits must be addressed. In Graham’s case, the material before the judge cast doubt on the asserted lack of notice and contained no adequate grounds demonstrating an arguable appeal. In McSorley’s case, possible administrative confusion did not explain the whole period of delay, and the judge still failed to consider the appeal’s merits.
5. The discussion of Thorn PLC v Kathleen MacDonald and Peter MacDonald (transcript of the judgment as approved 1st September 1999) confirmed that the absence of an explanation is a relevant factor rather than an automatic bar. The present jurisdiction nevertheless required the judge to reassert and apply the established two-part framework.
6. Although the application is made ex parte, a Crown Court judge should give succinct reasons for granting or refusing an extension. In a successful application, the court should communicate the decision and reasons to the affected party, enabling that party to consider whether judicial review is required.

• Maidstone Crown Court: HHJ Simpson granted extensions of time for Graham and McSorley to appeal against magistrates’ court condemnation orders.
• High Court (Administrative Court): The decisions were quashed because relevant considerations had not been addressed.