Gallon v Newcastle Upon Tyne Crown Court & Anor

On an application to extend custody time limits, the prosecution must establish both that the statutory ground for extension is satisfied and that it has acted with all due diligence and expedition. The court retains a discretion even when those requirements are met.

A failure by the prosecution may breach the diligence requirement without requiring refusal of an extension. The critical question is whether the failure caused the delay which made the extension necessary. The reviewing court must scrutinise the decision rigorously, but should interfere only where the lower court wrongly exercised its discretion.

The claimant sought judicial review of HHJ Wood’s decision to extend his custody time limit from 19 May to 12 September 2006. He was one of 16 defendants charged in a complex class A drug conspiracy case. The original trial date proved impracticable, and the trials were divided into three tranches because of the volume of evidence, the length of the proposed trials and the availability of counsel, the court and the trial judge.

The prosecution had served some evidence late, including telephone billing material, and had not obtained extensions for certain service deadlines. The central issue was whether the prosecution had acted with all due diligence and expedition under section 22(3) of the Prosecution of Offences Act 1985, and whether any failure had caused the trial dates to be postponed.

1. Claim dismissed. The Divisional Court upheld the extension of the custody time limit.

2. Section 22(3) of the Prosecution of Offences Act 1985 requires the prosecution to satisfy the court, on the balance of probabilities, both that the statutory need for an extension exists and that it has acted with all due diligence and expedition. If those requirements are met, the court has a discretion whether to grant the extension.

3. The diligence requirement concerns all elements of the prosecuting authority, including the police, solicitors and counsel. The standard is that of a competent prosecutor conscious of the duty to bring the case to trial as quickly as reasonably and fairly possible. Relevant matters may include the complexity of the case, the preparation required, the conduct of the accused, dependence on matters outside the prosecution’s control and other matters genuinely bearing on preparation. An exhaustive list is neither desirable nor helpful.

4. Failure to comply with a service deadline may amount to a lack of due expedition, but it is not necessarily fatal to an application for an extension. The prosecution must show that the need for the extension did not arise from its lack of diligence. A failure which caused no delay, or did not cause the delay affecting trial readiness, may therefore be insufficient to require refusal.

5. The Divisional Court must scrutinise the lower court’s decision rigorously. The decision remains one for the lower court, however, and the reviewing court should interfere only if the discretion was wrongly exercised.

6. The prosecution had failed to explain the late service of the telephone billing material. The court was prepared to regard that failure as a failure to demonstrate due diligence in relation to that material. It was not, however, causative of the postponement. Even timely service would not have enabled the original trial dates to be kept, given the complexity of the case, the volume of other evidence and the unavailability of the necessary counsel, court and judge. HHJ Wood was therefore entitled to extend the custody time limit.

First-instance judicial review proceedings in the High Court (Administrative Court). The judgment itself describes the decision of HHJ Wood which was under review.