Gibson & Anor, R (on the application of) v Crown Court At Winchester & Anor

Under section 22(3) of the Prosecution of Offences Act 1985, the requirements concerning good and sufficient cause and prosecutorial diligence are linked. A prosecutorial lapse does not automatically bar an extension where it did not cause the need for additional custody.

The unavailability of a suitable judge or courtroom may constitute good and sufficient cause, particularly in an exceptional case, but resources remain relevant and must be examined rigorously. The court must consider alternatives, competing demands, the quality of justice, and the length of the extension. Judicial review requires rigorous scrutiny while respecting the trial judge’s discretion.

Leslie Gordon Gibson and David Gibson, charged with murder and held in custody since May 2003, challenged a Winchester Crown Court order extending their custody time limits under section 22(3) of the Prosecution of Offences Act 1985 until 10 June 2004. Their trial was fixed for 9 June 2004 before a High Court judge because of the nature of the case.

The Crown Court found that the prosecution had not acted with all due diligence and expedition in one limited respect, but that the failure had not caused the need for the extension. The claimants challenged the construction of section 22(3), the relevance of court resources and the length of the extension. The Crown Prosecution Service cross-applied against the adverse finding on expedition.

Applications dismissed. The Divisional Court upheld the extension of the custody time limits and declined to interfere with the Crown Court judge’s finding concerning a minor failure by the prosecution.

1. Construction of section 22(3). The two statutory requirements are linked. The prosecution must show that the need for the extension was not caused by its lack of due diligence or expedition. The diligence requirement protects defendants from custody prolonged by prosecutorial delay; it is not a disciplinary provision. Avoidable delay which had no effect on the ability of the prosecution and defence to be ready for a fixed trial date did not compel refusal of an extension. The court followed the approach in R v Central Criminal Court, ex parte Bagoutie [1999] EWHC Admin 454 and declined to follow the independent-limbs approach attributed to R v Central Criminal Court, ex parte Bennett.
2. Good and sufficient cause. The unavailability of a suitable judge or courtroom can amount to good and sufficient cause. The court must first make considerable efforts to avoid postponement and must assess the facts of the particular case. It may consider the calibre of judge required, the nature of the case, limited resources, competing cases, alternative venues and the burdens imposed by relocation. The approach in R(Bannister) v Crown Court at Guildford might generally suit a routine case, but resources cannot be treated as irrelevant in every case.
3. Length of extension and reasons. A longer extension requires a stronger justification, and all possible steps must be taken to keep it to a minimum. The court granting or refusing an extension should state its decision and reasons.
4. Intensity of review. Because custody time limits engage human rights, both the Crown Court and the reviewing court must scrutinise the matter rigorously. The reviewing court must nevertheless respect the Crown Court judge’s discretion and should not interfere unless that discretion was wrongly exercised.

Lord Justice Rose and Royce J agreed. Rose LJ additionally stressed the primacy of the Crown Court judge and the need to avoid satellite litigation. Royce J emphasised that the statutory exception must remain a true exception.

• High Court (Administrative Court), Divisional Court: The judicial review applications were dismissed. The Crown Court’s extension was upheld, and the Crown Prosecution Service’s challenge to the minor finding on prosecutorial expedition was rejected.
• Winchester Crown Court: On 5 November 2003, Judge Brodrick extended the claimants’ custody time limits under section 22(3) of the Prosecution of Offences Act 1985 until 10 June 2004.