Alexander, R (on the application of) v Isleworth Crown Court

When deciding whether to extend a custody time limit, the court must separately consider whether there is good cause and whether the prosecution has acted with due diligence and expedition. In fitness-to-plead proceedings, it may generally be proper for the prosecution to await two defence medical reports before commissioning its own expert. That practice can satisfy the diligence requirement where it is adopted for proper reasons and the timetable makes earlier instruction impractical. Unforeseen illness affecting the prosecution expert, and a short period spent identifying a replacement expert and securing availability for a hearing, do not necessarily establish a lack of diligence or expedition.

The claimant sought judicial review of a decision by Judge Kathkuda at the Isleworth Crown Court extending his custody time limit from 21 December 2008 to 16 March 2009. The extension application arose while proceedings concerning alleged robbery and an earlier wounding with intent charge were delayed pending determination of the claimant’s fitness to plead.

The prosecution had awaited two medical reports served for the claimant before instructing its own expert. Its expert then became seriously ill, and a replacement had not been instructed by the extension hearing. The central issue was whether the statutory requirements for extending the custody time limit were satisfied.

1. Application dismissed. The Divisional Court granted permission but dismissed the substantive judicial review application. Lord Justice Maurice Kay agreed with the judgment of Mr Justice Wyn Williams.
2. Under the Criminal Procedure (Insanity) Act 1964, section 4(6), fitness to plead cannot be determined without written or oral evidence from at least two registered medical practitioners, one duly appointed. In that context, the prosecution’s practice of waiting to see whether two defence medical reports supported unfitness before instructing its own expert was generally capable of being justified. It saved costs and might avoid an unnecessary contested hearing.
3. The prosecution had acted with due diligence and expedition up to the middle of October 2008. The timetable did not require the second defence report to be served until shortly before the proposed fitness hearing, making it impractical to obtain and serve prosecution evidence within only a few days.
4. The illness of the prosecution’s instructed consultant was an unusual and unforeseen event which did not, of itself, amount to a failure of diligence. Nor was it unreasonable for the prosecution to wait briefly after 26 November to identify the new hearing date before instructing another expert. A suitably qualified expert needed sufficient notice and a realistic trial window.
5. The judge below was entitled to find both good cause and due diligence and expedition. Any reliance on the projected March hearing date did not amount to consent by the claimant to an extension. It was sufficient that the judge had substantial material on which to assess the prosecution’s conduct.

The claimant’s costs were ordered to be assessed pursuant to the relevant certificate.

• High Court (Administrative Court): On 24 December 2008, Mr Justice Flaux refused urgent interim relief but ordered an expedited permission hearing, with the substantive hearing to follow if permission was granted.
• High Court (Administrative Court), [2009] EWHC 85 (Admin): Permission was granted and the substantive application for judicial review was dismissed.