McKenzie, R (on the application of) v The Lord Chancellor & Ors

A temporary judicial decision to pause jury trials while court conditions are unsafe does not curtail the constitutional right to jury trial or access to the courts. It is an adjournment decision subject to continuing judicial oversight. A pandemic and the resulting inability safely to conduct a jury trial may constitute a good and sufficient cause for extending a custody time limit under Prosecution of Offences Act 1985, provided the statutory conditions remain individually assessed. Guidance issued in a protocol is lawful where it preserves judicial discretion and requires each application to be decided on its merits.

The claimant was detained on remand awaiting trial in the Crown Court at Leeds. His four-day jury trial was adjourned during the coronavirus pandemic. The Recorder extended his custody time limit to 1 July 2020, fixed a review hearing and set a provisional trial date.

In judicial review proceedings, the claimant challenged the Lord Chief Justice’s temporary listing decision pausing jury trials, the extension of his custody time limit under section 22(3) of the Prosecution of Offences Act 1985, and the Coronavirus Crisis Protocol. He also opposed revocation of an anonymity order. The central issues were whether the listing decision was ultra vires, whether the pandemic constituted good and sufficient cause, and whether the Protocol unlawfully fettered judicial discretion.

1. Claim dismissed. The listing decision was lawful. It temporarily paused jury trials during the period when they could not safely proceed. It did not remove or circumscribe the claimant’s right to trial by jury or his right of access to the courts. The authorities concerning constitutional rights of access and jury trial did not preclude temporary listing or adjournment decisions.
2. Under section 22(3) of the Prosecution of Offences Act 1985, the court must be satisfied that the need for an extension is due to a statutory ground, including some other good and sufficient cause, and that the prosecution has acted with due diligence and expedition. Only then does a discretion to extend arise. The principles in R (McDonald) v Manchester Crown Court [1999] 1 WLR 841 remained applicable.
3. The pandemic, the associated health risks and the practical impossibility of safely conducting the claimant’s jury trial constituted good and sufficient cause. The Recorder addressed the individual case, extended the time limit only to 1 July, fixed a review date and set a provisional trial date. His reasoning did not depend on the Protocol or the Lord Chief Justice’s listing decision, and disclosed no error of law or discretion.
4. The Protocol did not subvert the statutory scheme or fetter judicial discretion. It was a temporary framework of practice, expressly stating that it created no legal obligations, did not override independent judicial discretion, and required every case to be decided on its merits.
5. The claimant’s custody time limit and the date on which his jury trial had to occur were distinct matters. Expiry of the time limit, without a valid extension, required bail, but did not terminate or otherwise affect the criminal proceedings. The anonymity order was revoked because anonymity was not necessary to secure the proper administration of justice.

The claim was brought against the decision of HHJ Guy Kearl QC, Recorder of Leeds, dated 4 May 2020, extending the claimant’s custody time limit. The Administrative Court dismissed the judicial review claim and revoked the anonymity order.