Clarke, R (on the application of) v Lewes Crown Court

A court may extend custody time limits only where the statutory conditions are proved on the balance of probabilities. The prosecution must show good and sufficient cause and that it has acted with all due diligence and expedition. The relevant standard is that of a competent prosecutor conscious of the duty to bring the case to trial as quickly, reasonably and fairly as possible. The statutory periods are maxima, not targets. Judicial review requires rigorous scrutiny where continued detention affects the defendant’s liberty. An extension decision is unsustainable where material delays, failures to comply with directions, inadequate expert instructions and unanswered evidential questions prevent the judge from being properly satisfied that the statutory conditions are met.

The claimant faced charges of rape and sexual assault and had been remanded in custody. An issue arose about a complainant’s capacity to consent. The prosecution obtained an expert report which did not address that issue, took substantial periods to identify and instruct a further expert, failed to comply with directions for service, and served the resulting evidence on the day fixed for trial.

The Lewes Crown Court extended the custody time limits and adjourned the trial. The claimant sought judicial review, submitting that the Crown Court judge had applied the correct legal test but had wrongly concluded that the prosecution had acted with all due diligence and expedition. The central issue was whether that conclusion was legally sustainable on the material before the Crown Court.

1. Permission and relief. Permission was granted and the claim for judicial review succeeded. The Crown Court’s decision extending the custody time limits was quashed. The question of bail and conditions was directed to the Crown Court.
2. Applicable principles. Under section 22(3) of the Prosecution of Offences Act 1985, the prosecution had to establish, on the balance of probabilities, both a good and sufficient cause for the extension and that it had acted with all due diligence and expedition. The custody time limits were maxima, not targets.
3. Standard of diligence. The question was whether the prosecution had acted as a competent prosecutor conscious of the duty to bring the case to trial as quickly, reasonably and fairly as possible. Relevant matters included the adequacy and timing of expert instructions, prompt consideration of reports, compliance with court directions and the prosecution’s response to known delays.
4. Reviewing approach. The Administrative Court did not decide whether it would itself have granted an extension. It recognised the trial judge’s evaluative role, but was required to scrutinise the decision rigorously because the defendant’s liberty was engaged. The Crown Court judge had failed to address material matters, including the apparent inadequacy of the first expert instructions, the 32-day delay in considering the report, the delay in approaching a replacement expert, repeated failures to comply with directions, and the failure to explain the evidential basis for attributing delay to the experts.
5. Application. The evidence supported a strong inference that the first expert had not been given clear instructions. The prosecution had then lost substantial time before seeking alternative expert evidence and instructed the replacement expert too late to preserve the trial date. The Crown Court therefore lacked a proper evidential basis to conclude that the statutory diligence requirement was satisfied.
6. The court also expressed concern about the length of the extension, which would have resulted in approximately 13 months in custody awaiting trial, although that issue had not been argued as a separate ground.

The judgment does not state a prior appellate history. It concerned judicial review of the decision of HHJ Focke sitting in the Lewes Crown Court on 3 December 2008.