Michael Sierotko & Anor, R (on the application of) v Crown Court at Manchester Crown Square

When extending custody time limits, the prosecution must establish good and sufficient cause and must have acted with all due diligence and expedition. The assessment is fact-sensitive and must consider the nature and complexity of the case, the preparation required, defence conduct, compliance with time limits and trial readiness. A reviewing court must scrutinise the decision rigorously, while recognising the primacy of the Crown Court judge’s judgment. A prosecutorial failure does not necessarily prevent an extension if it did not cause or contribute to the need for it. The High Court may also consider whether the trial would have been lost for an independent reason, such as the likely absence of representation through no fault of the defendants.

The claimants were co-defendants awaiting trial on serious EncroChat-related charges. Their trial, listed for 6 February 2023, was vacated after the Crown served a specific reliability report shortly before the hearing and because counsel were unavailable to represent two defendants.

The Crown Court subsequently extended the custody time limits to 7 July 2023. The claimants challenged that decision, alleging that the prosecution had failed to act with due diligence and expedition, particularly concerning the late reliability report and requested data packages. Permission had previously been refused on the papers in the first claim and the second claim had been adjourned into open court. The central issues were whether the statutory conditions for extension were met and whether the Crown Court judge’s decision was unlawful on judicial review.

1. Permission and disposition. Permission for judicial review was granted in both claims, but the substantive applications were refused.
2. Under section 22(3) of the Prosecution of Offences Act 1985, the prosecution had to establish on the civil standard that the need for the extension was due to good and sufficient cause and that it had acted with all due diligence and expedition. The statutory discretion arose only if those conditions were met.
3. The due-diligence inquiry was fact-sensitive. It required the standard of a competent prosecutor conscious of the duty to bring the case to trial as quickly as reasonably and fairly possible, while allowing for the case’s nature and complexity, preparation required, defence conduct, external cooperation and other directly relevant circumstances.
4. The Crown Court judge had not misdirected himself. He was entitled to take account of the absence of an identified reliability issue in the defence statements, the lack of a defence statement from one claimant, the continuing lack of clear defence engagement, the volume and complexity of the case, and trial readiness. His conclusion that the prosecution had acted with due diligence and expedition was open to him on the evidence.
5. The late specific reliability report did not make the decision unlawful. The case was materially different from Holland: the Crown Court judge had received an explanation, considered the post-31 October 2022 chronology and was entitled to conclude that the prosecution’s conduct did not cause the need for the extension. Alternatively, the trial would have been vacated in any event because the defendants faced trial without representation through no fault of their own. That was a freestanding cause of the delay.
6. The High Court’s role was supervisory. It had to scrutinise the decision rigorously while recognising the primacy of the Crown Court judge’s judgment. A different first-instance conclusion would not suffice.
7. The court noted, without needing to decide the point, that section 29A of the Senior Courts Act 1981 might permit a deferred quashing order where a custody-time-limit decision required remittal and immediate release would otherwise follow.

Both claims were first-instance judicial review proceedings. Permission in Mr Sierotko’s claim had been refused on the papers by HHJ Davies on 4 April 2023, with provision for renewal. Mr Downs’s claim was adjourned into open court on 9 May 2023. The High Court granted permission in both claims and, on a rolled-up basis, refused the substantive applications.