Director of Public Prosecutions, R (on the application of) v Crown Court at Bristol & Anor.

Adjournments caused by the temporary unavailability of defence counsel may constitute a good and sufficient cause for extending a custody time limit. The issue is fact-sensitive. Courts must consider the likely delay, previous extensions, the defendant’s circumstances, likely sentence, vulnerabilities and whether separate trials could reduce delay.

The prosecution bears the burden of satisfying the statutory conditions. Stringent bail should be preferred where it can protect the relevant public interests. Extensions should generally be short and subject to review. Once the absence of representation becomes chronic or routine, it is unlikely to justify further extensions. A custody time limit cannot be extended after expiry, whether by the Crown Court or by substitution on judicial review.

The Director of Public Prosecutions challenged decisions by judges at Bristol and Manchester Crown Courts refusing to extend custody time limits. The trials had been adjourned because defence counsel were unavailable during the Criminal Bar Association’s escalating action concerning publicly funded criminal defence work.

The prosecution accepted that it had acted with due diligence and expedition. The central issues were whether the unavailability of counsel could constitute a good and sufficient cause under section 22(3) of the Prosecution of Offenders Act 1985, whether the decisions were lawful, and whether an expired custody time limit could later be extended or substituted on judicial review.

1. Principles under section 22(3). The statutory requirements that the cause be both good and sufficient are distinct. The cause must explain the postponement and consequent need for an extension. There is no exhaustive category of qualifying causes. Lack of defence counsel can in principle constitute a good cause, as can resource-related unavailability of courtrooms or judges. Neither the seriousness of the offence nor the shortness of the extension is itself sufficient.
2. Sufficiency and systemic delay. Courts must be cautious before keeping an unconvicted defendant in custody for administrative or resource reasons unconnected with the case. They must not allow the statutory exception to become routine or undermine Parliamentary control of custody time limits. Judges must not enter the merits of the dispute between the CBA and the Ministry of Justice or attribute blame. The relevant question is the practical availability of representation.
3. Case-specific assessment. The court adopted the approach in the Woolwich case, including consideration of the likely duration of delay, previous extensions, age and antecedents, likely sentence, vulnerabilities, and separate trials in multi-handed cases. Stringent bail should be preferred where it can protect the public interests that initially justified custody. Extensions should generally not exceed about three months.
4. Temporal limit. The indefinite action announced on 22 August 2022 could, at that stage, supply a sufficient reason. If the position continued, the absence of representation would likely become chronic or routine by the last week of November 2022 and thereafter would be unlikely to justify extension.
5. Decisions under challenge. Both Crown Court judges erred by treating the unavailability of counsel as already chronic or routine. They should have considered whether the statutory test was met on the individual facts. The judges’ decisions were therefore unlawful.
6. Expiry and relief. Section 22(3) permits extension only before expiry. Section 31(5)(b) of the Senior Courts Act 1981 cannot retrospectively deprive a person of liberty or confer a power unavailable to the Crown Court. Because the limits had expired, quashing would serve no purpose. The DPP received permission to apply for judicial review, but relief was refused.
7. Pending judicial review. The Administrative Court may in principle grant a short extension before expiry where the claim is strongly arguable and all section 22(3) conditions are satisfied. An oral hearing will generally be required and the accused must have an opportunity to make submissions.

The judgment itself records no appeal from an earlier decision. It concerned judicial review of decisions made by judges of Bristol and Manchester Crown Courts.