Trinh, R (on the application of) v Crown Court at Southwark & Anor

An extension of a custody time limit under section 22(3) of the Prosecution of Offences Act 1985 requires the court to be satisfied both that there is a good and sufficient cause for the extension and that the prosecution has acted with due diligence and expedition.

Judicial review does not permit the reviewing court to substitute its own assessment for that of the judge who decided the extension application. Where the judge applied the correct statutory test and reached a conclusion reasonably open on the material before him, the decision will not be quashed merely because the case was difficult or the prosecution had been dilatory.

The claimant sought judicial review of HHJ McKinnon's decision on 8 December 2004 to extend the custody time limit in criminal proceedings to 8 April 2005. The claimant and five others faced trial for conspiracy to produce a class C controlled drug.

The challenge alleged misdirection as to the statutory test, an unreasonable conclusion, insufficient scrutiny of prosecution delay, and procedural unfairness because the judge did not require oral evidence. The central issue was whether the extension decision was unlawful or otherwise amenable to being quashed on judicial review.

1. Application dismissed. The court unanimously held that HHJ McKinnon had not misdirected himself in extending the custody time limit.
2. Section 22(3) of the Prosecution of Offences Act 1985 required consideration of whether the need for an extension arose from a good and sufficient cause and whether the prosecution had acted with all due diligence and expedition. Reading the ruling as a whole, the judge had applied both statutory limbs. His reference to the Crown's readiness for trial did not dilute or replace the statutory test.
3. The court considered the guidance in R v Crown Court at Manchester ex parte McDonald, 1999 1 All ER 805, concerning the statutory requirements. The prosecution's delay was relevant, but the due-diligence requirement was directed to protecting defendants from unjustified detention rather than imposing a disciplinary penalty for every administrative lapse.
4. The late service of two surveillance videos did not, on the material available, establish that the prosecution had caused the need for the extension. Information concerning what the defendants' former solicitors knew before the videos were served was unavailable because the required waiver of privilege had not been obtained. The judge was therefore entitled to conclude that the change of representation and resulting delay were not properly attributable to prosecution fault.
5. The judge was not required to hear evidence. Whether evidence should be called was a matter for his discretion, and no invitation to hear evidence had been made. Despite the difficult decision and the prosecution's lack of diligence in several respects, the decision was lawful and reasonably open to him. The reviewing court could not quash it and substitute a different assessment.

High Court (Administrative Court): HHJ McKinnon extended the custody time limit on 8 December 2004. The Administrative Court dismissed the application for judicial review.