Tumaye v The Central Criminal Court

A custody time limit may be extended only where the judge makes a judicial determination, to the civil standard, that both statutory conditions are satisfied: there is some other good and sufficient cause for the extension, and the prosecution has acted with all due diligence and expedition. A judge must engage directly with those criteria. It is insufficient merely to preserve the position pending fuller argument. There is no automatic requirement for the defendant to attend such an application, although fairness and Article 6 may require attendance in particular circumstances. Properly instructed legal representation is a basic requirement of fairness. Bail conditions must be achievable; otherwise they may operate as a disguised prolongation of custody.

The claimant was awaiting trial at the Central Criminal Court on conspiracy and other offences. His custody time limit was due to expire on 26 December 2006. On 22 December, His Honour Judge Roberts QC extended it to 30 December, intending that the issue could be fully argued before another judge.

The claimant sought judicial review, contending that the judge had failed to apply the statutory criteria and that the hearing had proceeded without his attendance or properly instructed counsel. The central issue was whether the extension could stand without a judicial finding that the requirements of the Prosecution of Offences Act 1985 had been met.

1. The judicial review succeeded. The order extending the claimant’s custody time limit was quashed.
2. Under section 22(3) of the Prosecution of Offences Act 1985, an extension required the judge to be satisfied, to the civil standard, that there was some other good and sufficient cause for the extension and that the prosecution had acted with all due diligence and expedition. Those requirements called for a judicial determination.
3. The transcript showed no direct consideration of the statutory criteria and no adversarial argument on whether they were satisfied. Judge Roberts’s later observations referred to a written application setting out a prima facie case, but did not state that he had judicially found the case proved or that the prosecution had acted with all due diligence and expedition. His intention had been to hold the position until proper argument could take place. The extension therefore lacked the necessary statutory findings and could not stand.
4. There was no black-letter rule requiring a defendant to attend an application to extend custody time limits. Attendance might nevertheless be required by fairness, including Article 6, where particular circumstances made the defendant’s instructions necessary. No such circumstances were established here.
5. Properly instructed counsel was a basic requirement of fairness. The court did not decide whether the prosecution’s late application might itself demonstrate a want of due diligence and expedition.
6. In dealing with bail after quashing the order, the court accepted that unachievable bail conditions could amount to a disguised means of prolonging custody. Conditions that were achievable but not fulfilled would have a different consequence. Bail arrangements were left to be resolved and endorsed by the court.

The judgment describes an application for judicial review of an order made by His Honour Judge Roberts QC in the Central Criminal Court on 22 December 2006. The Administrative Court quashed that order.