R (on the application of Bernard) v The Crown Court Sitting at Snaresbrook

When extending a custody time limit under section 22(3) of the Prosecution of Offences Act 1985, the court must separately establish a cause that is both good and sufficient, confirm due diligence by the prosecution, and then exercise its discretion.

Listing pressure may constitute a good cause, but routine court congestion does not automatically constitute sufficient cause. Resource-based applications require rigorous scrutiny, particularly where the case is routine and the proposed extension is substantial. The court must consider relevant factors including the length of delay, the defendant’s age and antecedents, likely sentence, reasons for refusal of bail and vulnerabilities. A defendant’s not guilty plea, the seriousness of allegations and public protection cannot themselves establish good and sufficient cause.

The claimant, charged with harassment, assaults and criminal damage, challenged the decision of HHJ Del Fabbro to extend his custody time limit from 3 October 2025 to 6 March 2026. The trial was listed for 2 March 2026 because the Crown Court system could not accommodate it earlier.

The prosecution accepted that it had acted with due diligence and expedition. The claimant argued that routine listing pressures did not amount to sufficient cause, that the judge had relied on irrelevant considerations, and that he had a legitimate expectation that bail would be granted. The central issues were whether the statutory test under section 22(3) had been correctly applied and whether the decision was lawful on judicial review.

1. Claim allowed in part. Permission to apply was granted. The claim succeeded on grounds 1 and 2, ground 4 was not separately determined, and ground 3 was dismissed.
2. Under section 22(3) of the Prosecution of Offences Act 1985, the court must first determine whether the need for an extension arises from a good and sufficient cause, then whether the prosecution acted with due diligence and expedition, and finally whether discretion should be exercised to grant the extension. The burden remains on the prosecution.
3. The inability to list the routine three-day trial before expiry of the custody time limit was capable of amounting to a good cause. It did not, however, establish sufficient cause. The first listing had been fixed outside the custody time limit several months earlier, and the evidence did not explain why routine congestion or an asserted unprecedented increase in trials made the extension necessary. The rigorous scrutiny required by McAuley had not occurred.
4. The judge also relied on an irrelevant consideration by treating the claimant’s maintenance of his not guilty pleas as relevant context. The judge’s comments during the hearing, viewed with the ruling, indicated that the plea had infected the decision. The seriousness of the allegations and public protection could not themselves constitute good and sufficient cause.
5. The judge failed to demonstrate proper consideration of relevant discretionary factors identified in Woolwich, including the claimant’s age, lack of antecedents, the length of the extension and the relationship between time spent on remand and the likely sentence. A defendant should rarely remain in custody where he has served, or is close to serving, the likely custodial sentence.
6. The legitimate-expectation ground failed. Bail decisions remained matters for the court, and no earlier indication by the prosecution or another judge could bind the judge determining the application.
7. The decision extending the custody time limit was quashed, but the order was deferred for 14 days under section 29A of the Senior Courts Act 1981. The matter was remitted to Snaresbrook Crown Court to reconsider the extension and determine appropriate bail conditions.

This was a first-instance judicial review of the decision of HHJ Del Fabbro at Snaresbrook Crown Court dated 30 September 2025. The High Court quashed that decision with effect 14 days after judgment and remitted the matter to the Crown Court.