APPLICATIONS FOR CUSTODY TIME LIMIT EXTENSION
Digest of cases
The following principles have emerged from the case law:
a) General
i.
The two tests of good and sufficient cause and all due diligence and
expedition are linked (R v Leeds Crown Court ex parte Bagoutie TLR
31 May 1999).
ii.
The burden of satisfying the tests rests on the Crown on the balance of
probabilities (R v Manchester Crown Court ex parte McDonald [1999] 1
Cr. App. R. 409).
iii. Each offence charged carries its own time limit. So if there is more than
one count in an indictment, each carries its own separate time limit (Wirral
District Magistrates’ Court, ex parte Meikle (1990) 154 JP 1035).
iv. It is for the prosecution to decide what evidence to call in support of their
application, and the defence cannot insist on a witness being called purely
to allow him to be criticised (R (Rippe) v Chelmsford Crown Court
[2001] EWHC Admin 1115).
v.
Where there is an issue as to whether the prosecution has acted with all
due diligence, the court should be provided with a chronology, preferably
agreed, showing the dates of all material events and orders (R v
Chelmsford Crown Court, ex p Mills, (2000) 164 J.P. 1 DC).
vi. It is good practice to give the grounds for the application in the notice of
intention to make the application (R v Central Criminal Court, ex p.
Marotta [1998] EWHC Admin 871).
vii. Advocates should inform the court 24 hours before the hearing of the
anticipated length of the application (Practice Direction (Application to
extend custody time limits), unreported, 18 December 1998, Western
Circuit (Butterfield J) – subsequently adopted also on other circuits).
viii. The opening words of section 22(3) [POA 1985] allow for the making of an
application before the expiry of the period that has been extended by the
court, as well as before the expiry of the original time limit (R (Haque) v
Central Criminal Court [2003] EWHC 2457 (Admin)).
ix. Ideally the trial should be fixed within the CTL at PCMH. If this is not
possible, efforts should thereafter be made to fix the trial within the CTL
Initial draft RMR 19.8.11: amended by DE 20.9.11 further amended by DE 3.5.2012
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and the matter listed as soon as possible for the court to consider the
arrangements. If it is not possible to fix the trial within the CTL, the trial
should be fixed for a date as soon as possible after the expiry of the CTL
and an application to extend should be made immediately and not
delayed. See R v Luton Crown Court, ex parte Raeside [2012] EWHC
1064 (Admin) and R v Coventry Crown Court, ex parte McAuley [2012]
EWHC 680 (Admin).
b) Good and sufficient cause
i.
There are an almost infinite variety of matters which may, depending on
the facts of a particular case, be capable of amounting to a good and
sufficient cause (R v Manchester Crown Court ex parte McDonald
[1999] 1 Cr. App. R. 409).
ii.
The real complexity of a case may be a good and sufficient cause (R v
Leicester Crown Court, ex parte Pravin Patel, unreported 15 February
2000).
iii. The fact that there is no judge or courtroom available in which a case may
be tried can, in appropriate circumstances, amount to a good and
sufficient cause (R v Crown Court at Norwich, ex parte Cox [1993] 97
Cr. App. R. 145) and (R v Crown Court at Leeds, ex parte Wilson
[1999] Crim L.R. 738), but not as a matter of routine. Listing difficulties
have to be exceptional and not simply difficulties caused by pressure of
work in routine cases (R (Miah) v Crown Court at Snaresbrook [2006]
EWHC 2873 (Admin)) and now see (R v Luton Crown Court, ex parte
Raeside [2012] EWHC 1064 (Admin) and R v Coventry Crown Court,
ex parte McAuley [2012] EWHC 680 (Admin)). Routine cases must be
listed within the CTL. A thorough search must be made by the court
including in the region and near neighbours to list cases within the CTL.
iv. The court must take the initiative where the difficulty is in finding a
courtroom or a judge to hear the case and must provide the CPS with
evidence of the attempts to list the case where it has not been possible to
list within the CTL so that this can be served on the defence and
scrutinised by the court. (See McAuley and Raeside above.)
v.
It is only in cases that require a High Court Judge or some other specially
approved judge to hear particular cases that it will be permissible to
extend the CTL if necessary. (See McAuley and Raeside above).
Initial draft RMR 19.8.11: amended by DE 20.9.11 further amended by DE 3.5.2012
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vi. The granting of a defence application to postpone a trial may give rise to a
good and sufficient cause to extend a custody time limit (Re C [2000] 164
J.P. 693 DC). In McDonald above, the wish of a defendant to be
represented by counsel of his choice was held to have satisfied the
requirements of good and sufficient cause {but the court will still have to
consider an application (R v Luton Crown Court, ex parte Raeside
[2012] EWHC 1064 (Admin)).
vii. The interest of justice in trying jointly charged defendants together is
capable of being a reason for extending the custody time limit of one of
them (R v Central Criminal Court ex parte Abu-Wardeh [1999] 1 Cr.
App. R. 43).
viii. The following do not in themselves amount to a good and sufficient cause
to extend a custody time limit:
(a)
The seriousness of the charge (R v Governor of Winchester
Prison ex parte Roddie [1991] 93 Cr. App. R. 190).
(b)
Matters relevant to the grant or refusal of bail (R v Crown Court at
Sheffield, ex parte Headley [2000] 2 Cr. App. R. 1) as far as
being a good and sufficient cause to extend. However once the
judge has decided that the prosecution has established the grounds
for a CTL extension, the issue of bail may be relevant to the
exercise of the statutory discretion whether to allow the application
and remand in custody or to grant bail. (Archbold 1-274 for
argument).
(c)
The shortness of the extension sought (Headley above).
(d)
The protection of the public (Abu-Wardeh above). The protection
of a witness however in conjunction with other factors may amount
to good and sufficient cause (R v Birmingham Crown Court, ex
parte Bell and others [1997] 2 Cr. App. R. 363).
(e)
The fact that it has been necessary to obtain cell site analysis or
DNA evidence or that the trial will last two weeks (see McAuley and
Raeside above).
c) With all due diligence and expedition
i.
The question under section 22(3) (b) of the 1985 Act is whether the
prosecution has acted with all due expedition with respect to the period to
which the custody time limit relates. Delays in arrest and charge are quite
Initial draft RMR 19.8.11: amended by DE 20.9.11 further amended by DE 3.5.2012
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immaterial to that question. (R v Ipswich Crown Court ex parte the CPS
[2010] EWHC 1515 (Admin)).
ii.
In considering whether the prosecution has acted with all due diligence
and expedition, the court should consider the matter by reference to the
presence or absence of all due diligence and expedition at the stage to
which the custody time limit relates. Lack of diligence or expedition at
some earlier stage need not be taken into account, although there may be
factual situations where it will be necessary to look at past history (Bell
above).
iii. The requirement that the prosecution act with all due diligence and
expedition is not disciplinary in intention. If the court is satisfied that there
is good and sufficient cause to extend the custody time limit but is not
satisfied that the prosecution has acted with all due diligence and
expedition, it is not obliged to refuse the application to extend if it
concludes that the failure of the prosecution has neither caused nor
contributed to the need for the extension (Bagoutie above).
iv. To satisfy the court that this condition (acting with all due diligence and
expedition) is met, the prosecution need not show that every stage of
preparation of the case has been accomplished as quickly and efficiently
as humanly possible. That would be an impossible standard to meet,
particularly when the court which reviews the history of the case enjoys
the immeasurable benefit of hindsight. Nor should the history be
approached on the unreal assumption that all involved on the prosecution
side have been able to give the case in question their undivided attention.
(McDonald above).
v.
What the court must require is such diligence and expedition as would be
shown by a competent prosecutor conscious of his duty to bring a case to
trial as quickly as is reasonably and fairly possible (McDonald above).
vi. The judge may properly extend a custody time limit even where the
prosecution had not acted with all due diligence, if the prosecution’s failure
is not itself a cause for the required extension (R (Gibson) v Winchester
Crown Court [2004] EWHC 361 (Admin)).
vii. Delay by the prosecution in doing something that it was not obliged to do
is irrelevant (R v Southwark Crown Court, ex parte DPP [1999] Crim
L.R. 394 DC).
viii. All concerned with the prosecution were not required to act as though this
was their only task at hand; all due expedition meant the expedition
Initial draft RMR 19.8.11: amended by DE 20.9.11 further amended by DE 3.5.2012
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appropriate in the circumstances (Norwich Crown Court ex parte Parker
[1993] 96 Cr. App. R. 68).
ix. Delay by the forensic service provider is not a failure by the prosecution to
act with all due diligence and expedition, but the prosecution must do
everything possible to ensure that the evidence is available on time and
this will include making the relevant laboratory aware of relevant court
dates and time limits (R v Central Criminal Court, ex parte Johnson
[1999] 2 Cr. App. R. 51). But in R (Holland) v Leeds Crown Court
[2002] EWHC 1862 Admin, failure to inform the laboratory of the time
constraints was fatal to a claim of due expedition.
x.
Delay occasioned by the non-availability of a prosecution witness will only
lead to a lack of due expedition where it could not be shown that the
prosecution had not taken reasonable steps in the circumstances to
ensure the attendance of the witness. The prosecution cannot be
expected to ‘nursemaid’ their witnesses at all times (Leeds Crown Court
ex parte Redfearn [1998] COD 437).
[NB: delays in submitting the items to the laboratory could also be fatal.
The pressure on the police to save resources and send only some items
for testing may defeat the custody time limits. You need to make the police
aware of this and let them know you need the date when the laboratory
was instructed in case the judge requires it.]
Initial draft RMR 19.8.11: amended by DE 20.9.11 further amended by DE 3.5.2012
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