R v Jay Bewley [2026] EWCA Crim 730

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IN THE COURT OF APPEAL

CRIMINAL DIVISION

Between

R EXCrown

London

WC2A 2LL

ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM.

(HIS HONOUR JUDGE MAYO DL) [30D10435624R5]

Case No 2026/01624/B5 Tuesday 19 May 2026

Neutral Citation No: [2026] EWCA Crim 730

B e f o r e:

LORD JUSTICE POPPLEWELL

MR JUSTICE GOOSE

MR JUSTICE SAINI

____________________

- v –

Between

JAY BEWLEY

____________________

Computer Aided Transcription of Epiq Europe Ltd,

Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

___________________

Mr H Skudra appeared for Applicant Crown

Mr P C Bown appeared for Respondent

___________________

J U D G M E N T

(Approved)

Date 2026-05-19

[1]The Registrar has referred an application by the Crown Prosecution Service ("the CPS") for leave to appeal against a ruling given on 27 April 2026 by His Honour Judge Mayo DL sitting in the Crown Court at Nottingham. Judge Mayo set aside a restraint order made against an alleged offender, Jay Bewley, and his partner Ms Lauren Roche, by His Honour Judge Harbage KC in the same court on 20 August 2024 (as amended in the meantime). Judge Mayo did so pursuant to section 42(7)(a) of the Proceeds of Crime Act 2002 ("POCA"), which provides that where a restraint order has been granted on the grounds that a criminal investigation has been started and there are reasonable grounds to suspect that the alleged offender has benefited from his criminal conduct, the court must discharge the order if proceedings are not started within a reasonable time.

The Law

[2]The making and discharge of restraint orders are governed by the terms of sections 40 to 47 of POCA. Section 40 sets out the various conditions, one of which needs to be fulfilled before a restraint order may be made. The relevant condition in the present case is that set out in section 40(2), which provides:

"The first condition is that — (a) a criminal investigation has been started in England and Wales with regard to an offence, and (b) there are reasonable grounds to suspect that the alleged offender has benefited from his criminal conduct."

Section 41(1) then provides: 3. "If any condition set out in section 40 is satisfied the Crown Court may make an order (a restraint order) prohibiting any specified person from dealing with any realisable property held by him."

[3]This enables a restraint order to be made against anyone holding realisable property, not only the alleged offender. In this case Ms Roche was not alleged to be an offender who was under investigation, but her joint interest with Mr Bewley in a property supported an order being made against her. On the application before Judge Mayo, and also on that which is before this court, her position is entirely dependent on that of Mr Bewley.

[4]Section 42(3) relates to applications to discharge or vary which may be made by any person affected by the order. Section 42(5) and (7) provide as follows:

"(5) The court — (a) may discharge the order; (b) may vary the order. … (7) If the condition in section 40 which was satisfied was that an investigation was started — (a) the court must discharge the order if within a reasonable time proceedings for the offence are not started; …"

[5]Section 41(7B), inserted by amendment in 2015, provides as follows:

"The court — (a) must include in the order a requirement for the applicant for the order to report to the court on the progress of the investigation at such times and in such manner as the order may specify (a 'reporting requirement'), and (b) must discharge the order if proceedings for the offence are not started within a reasonable time (and this duty applies whether or not an application to discharge the order is made under section 42(3))."

[6]This provision makes clear that the court in such circumstances can act of its own motion to discharge an order, applying the same statutory criterion as that contained in section 42(7)(a).

[7]Valuable guidance was given by this court on the proper interpretation of those provisions and the principles governing their application in R v S

[2019] EWCA Crim 1728

[2020] 1 WLR 109

. We would summarise them, so far as relevant, as follows.(1) Section 42(7) does not involve any element of discretion. If proceedings for the offence are not commenced within a reasonable time, the restraint order must be discharged: [27]. This is so irrespective of the consequences flowing from such discharge, which are irrelevant: [40] and [74].

(2) The "legislative steer" given by reference to the matters set out in section 69(2) of POCA does not apply because the court is not exercising a power, but rather is under a statutory duty to discharge the restraint order if the condition is fulfilled: [28].

(3) The words of the subsection, and in particular what is a "reasonable" time, are not to be glossed: [30] and [37]. They do not import any concept of exceptionality, and are not to be read restrictively: [32]. They do not involve an obligation to bring proceedings as rapidly as possible: [68].

(4) Principles and authorities relating to civil freezing orders and injunctions are unlikely to be of assistance: [37].

(5) In determining whether or not the proceedings have been commenced within a reasonable time, the court will have regard to all the circumstances. What they are, and the weight which will be given to them, will vary from case to case. The following are usually likely to be relevant, although of differing weight, but this is not an exhaustive list: [38] and [39]: i the length of time which has elapsed since the restraint order was made; ii the reasons and explanations for the lapse of time; iii the length and depth of the investigation before the restraint order was made; iv the nature and extent of the restraint order made; v the nature and complexity of the investigation at subsequent proceedings; and vi the degree of assistance or of obstruction to the investigation.

(6) In considering these factors it is necessary to have regard to the legal obligations and the guidance which govern investigations into crime, and those governing disclosure. That includes, in particular, the guidance approving the practice of front-loading the disclosure exercise in more complex cases, both in order to assist in assessing the strength of a case before charging, and to avoid the difficulties which can be caused by leaving the disclosure exercise to be addressed in the course of proceedings: [41] – [46] and [71].

(7) The court should also take account of the "practical realities" of the process involved in the investigation and charging of crimes ([34], [35]), some of which were referred to by Lord Bingham of Cornhill in Dyer v Watson

[2004] 1 AC 379

at [55].

(8) The evidence which a prosecutor may reasonably be expected to put forward on the application, in giving details of the investigation and reasons for delay, may be limited by legitimate concerns about it compromising the investigation or about the defence taking tactical advantage of perceived strengths and weaknesses being identified; and by the need to avoid extensive satellite litigation: [77]. The fact that the prosecution evidence may be criticised as unsatisfactory in the level of detail it ought to have given in this respect (as the court considered was the case in R v S) is not necessarily and of itself a reason for discharging the order (which the court held should not have been discharged in that case).

[8]It follows that although what is involved is not properly described as an exercise of discretion, it is an evaluative judgement involving a multifactorial assessment of the evidence, in which a range of views may legitimately be reached. In such cases this court will not interfere with the evaluative judgement of the judge simply because it might have taken a different view. It must be shown that there was an error of law or principle; that the judge took into account an immaterial factor; that they failed to take into account a material factor; or that the conclusion was one which no reasonable judge could have reached – i.e. it was outside the range within which views might legitimately differ. This is the standard of review applicable generally to prosecution appeals against rulings under Part 9 of the Criminal Justice Act 2003 – the standard set out in section 67 of that Act (see R v B

[2008] EWCA Crim 1144

at [19]), which, whilst not directly applicable to the current proposed appeal, is analogous. So too it is the standard of review in relation to other evaluative assessments made in criminal cases, as for example under the Police and Criminal Evidence Act 1984 (see R v Bogie

[2023] EWCA Crim 1280

at [56] and [57] amongst many authorities). It appears to have been the standard applied by this court in R v S itself at [76].

Chronology and Evidence

[9]The application for the restraint order made to His Honour Judge Harbage KC in August was supported by a witness statement dated 12 August 2024 by Ms Divita Raithatha, an accredited financial investigator ("the FI"). It contained the following evidence of relevance to the present application.(1) Her information was derived from DC Neil Tomlin, the officer in charge of a criminal investigation which had been commenced by the East Midlands Special Operations Unit into the unlawful supply and distribution of Class A drugs within Northamptonshire. The investigation was named "Operation Gosling". The investigation involved a number of individuals, the principal one being believed to be one Joshua Peachment. Mr Bewley was identified as having been involved with Mr Peachment by reason of four text messages passing between them on Sunday 7 January whose content was set out in the statement. Although the year was not set out, these are likely to have been in 2024, because that is a year in which 7 January fell on a Sunday.

(2) Mr Bewley, then aged 36, had been arrested at his home address in Daventry, a property which was jointly owned with Ms Roche, on 25 July 2024 on suspicion of conspiracy to supply Class A drugs. Recovered from his property was a quantity of cash, yet to be counted, three watches and "a quantity of exhibits in relation to … cannabis".

(3) In interview Mr Bewley had explained that the cannabis found was for his own use and that the watches were fake. He explained that he was a self-employed block paver, and that he had jobs which were paid in cash. He had completed a financial questionnaire in which he had disclosed a Lloyds bank account in his own name which held about £168,000. The value of the Daventry property was some £347,000, and it was subject to a mortgage of some £177,000. The FI said in the statement that enquiries would be undertaken by the police to establish the authenticity of the watches, and that information had already been requested from HMRC to verify the information that Mr Bewley had given about his employment.

[10]The statement did not identify for how long the investigation had been going on prior to August 2024, but it is to be inferred from the date of the text messages referred to that so far as Mr Bewley was concerned it was not earlier than January 2024.

[11]The restraint order which was granted by His Honour Judge Harbage KC was, against Mr Bewley, an order restraining dealing with all assets in England and Wales. Notwithstanding the width of that order it also particularised the prohibition as applying to the Coventry property or its proceeds, the contents of the Lloyds bank account, and the property seized by the police on 25 July (which included the watches). Orders in that form are common, because the particularisation of particular assets, notwithstanding the general width of an all assets order, enables third parties to be notified and for the assets to be protected in that way.

[12]The order was subject to a specified sum by way of monthly allowance for living expenses. The order also contained, at paragraph 17, a requirement that "the prosecutor must report on the progress of the investigation every three months by way of a further statement to be served on the court and on the alleged offender, and any other person to whom this order is addressed". This was in accordance with the reporting requirement under section 41(7B)(a). Its purpose is to enable the court to supervise the operation of the restraint order and to make an evidence based assessment of its own motion as to whether circumstances have arisen in which the order should be discharged because proceedings have not been commenced within a reasonable time; and also to inform those subject to the order of progress so as enable the alleged offender (or anyone else affected by the order) to make an evidence based assessment of whether an application should be made under section 42(7)(a) on the basis that proceedings have not been commenced within a reasonable time. It is important, therefore, that it should be in the form of a witness statement in proper evidential form.

[13]The reporting requirement was for three-monthly reports. There were a number of reports, to which we shall refer as "quarterly reports", although that is not strictly accurate. There were a number of occasions on which, in breach of the order, the reports were made at intervals of only four or five months.

[14]The first quarterly report was in a witness statement dated 25 November 2024. It confirmed that the FI was in charge of a financial investigation into Mr Bewley. The only substantive information about progress was contained in paragraph 6, which said:

"Since my statement dated 12 August 2024, phones relating to Bewley have been downloaded and analytical work is ongoing. Further analysis of text messages and call data are being conducted, which will continue. At present, there is no timescale as to when this analysis will be completed."

[15]The second quarterly report was in a witness statement dated 3 March 2025. It stated that since the statements dated 12 August 2024 and 25 November 2024, phones relating to Mr Bewley had been downloaded; further analysis of text messages and call data were being conducted, which would continue; the FI had contacted Mr Bewley's solicitors in order to seek consent to obtain copies of his bank statements; and that the officer in the case was compiling a file to seek charging advice from the CPS in relation to Mr Bewley.

[16]The third quarterly report was contained in a statement dated 23 June 2025. It said:

"All lines of enquiry in relation to Bewley have been completed and the evidence has been reviewed. A file is being submitted to the CPS to seek charging advice, and the OIC is in consultation with the CPS lawyer regarding timescales."

[17]The fourth quarterly report was in a statement dated 23 September 2025 by the FI's colleague, who said that she had taken over the conduct of the investigation into Mr Bewley's financial affairs. It said:

"Since my colleague's previous statement dated 23 June 2025, the case has been referred to the Crown Prosecution Service and we are waiting for a charging decision."

[18]A few days later, on 26 September 2025, Her Honour Judge Lucking KC varied the restraint order, on an application made by the CPS, to which Mr Bewley and Ms Roche consented. The variation was to allow further sums to be used from a Monza bank account for living expenses, and to add four other particularised building society accounts to the list of identified assets.

[19]The fifth quarterly report was in a statement by the FI who had resumed conduct of the investigation into Mr Bewley's financial affairs, dated 19 November 2025. It said:

"All lines of enquiry in relation to Bewley have been completed and the evidence has been reviewed. A file was submitted to CPS to seek charging advice in June 2025. However, police have since been made aware that the reviewing lawyer is no longer working on this case, and the case has been re-allocated to a different lawyer. Since the last update, a further suspect has been added to the case, and therefore there has been further delay. The OIC has confirmed, following consultation with CPS, that new timescales have been agreed whereby CPS will respond by 18 December 2025."

[20]The sixth and final quarterly report was in a witness statement by the FI, dated 24 March 2026, which said:

"… all lines of enquiry in relation to Bewley have been completed and the evidence has been reviewed. The OIC has confirmed that following a further consultation and meeting with CPS that new timescales had been agreed and it is anticipated that CPS will respond by March 2026. The evidence is currently being reviewed and the charges are being finalised."

[21]The application to discharge the order which was made by Mr Bewley and Ms Roche was expressed to be made pursuant to section 41(7B) of POCA. The documentation supporting it referred simply to the content of the quarterly reports and argued that it was clear that the police had completed their enquiries by June 2025 and that since then the CPS had been guilty of unreasonable delay in providing the police with charging advice. The date on which the application was made is not entirely clear from the papers, but it must have been in late March 2026 because it made a reference to the final quarterly report of 24 March 2026, and it is known that a listing decision was made on 1 April 2026, which listed the application to be heard before Judge Mayo on 14 April 2026.

[22]There was no responsive evidence from the CPS before the matter came on before Judge Mayo on 14 April. The CPS and Mr Bewley and Ms Roche were represented by counsel. After some argument on that day, the judge regarded the evidence available about the progress of the investigation as unsatisfactory and, as he put it in his subsequent ruling, he asked the prosecution to "research" the following:(a) the extent of the enquiry as a whole;

(b) what enquiries had been made of (for example) HMRC as to the possible legitimacy of the funds in the applicant's accounts; and

[23]The proceedings were adjourned until Thursday 16 April (two days later). At the hearing on 16 April there was no further evidence from the CPS. However, counsel then acting for the CPS put forward a skeleton argument, dated 15 April, headed "Prosecution Response to Defence Application to discharge a restraint order". It contained the following information, or as the judge put it "assertions", beyond what was contained in the evidence in the FI witness statements:(1) Operation Gosling had been a complex operation featuring 12 suspects, not all added at the same time, and was an investigation into conspiracy to supply, and the supply of, Class A and Class B drugs, involving large volumes of evidence, including significant amounts of phone data.

(2) In addition, the disclosure exercise had been significant.

(3) "… the lawyer who had conduct left the department and the original officer in the case also left. A new lawyer was appointed in around June 2025".

(4) On 15 April 2026 (i.e. the day before the resumed hearing) charges of conspiracy to supply Class B cannabis were authorised against Mr Bewley; and charges of conspiracy to supply Class A and B drugs, charges of supply of Class A and B drugs and of possession with intent to supply amphetamines had been authorised against other individuals (without identifying how many other individuals, who they were, or who would face what charges).

(5) As to the specific matters which Judge Mayo had asked on 14 April to be researched, the police had not yet had the watches authenticated because Mr Bewley had not yet been charged. HMRC had been approached and had provided witness statements to the CPS. It was said: "A review details a high declared personal income, but he did not declare any income for VAT or corporation tax" (this appeared to be a confirmation that the declared income was commensurate with the amounts which were discovered in his accounts).

[24]Mr Bewley submitted at the hearing that he would not be expected to have declared income for VAT or corporation tax purposes because he had been trading under the Construction Industry Scheme, which did not so require it. He provided documentary evidence to the judge at the hearing in support of the fact that he had been trading under that scheme at the time, and said that that was documentation which had already been supplied to the CPS back in August 2024.

[25]Judge Mayo conducted the hearing on 16 April 2026 and reserved judgment. He gave his decision in a written Ruling on 27 April. The judge was not told at any stage before delivering his written Ruling that in fact proceedings had commenced against Mr Bewley. Before us the CPS seeks to rely on evidence that proceedings were in fact commenced by a postal requisition having been sent by the police to Mr Bewley on 23 April 2026 – i.e. a week after the hearing, but a few days before the Ruling was handed down. The charge was one of conspiracy to supply Class B drugs between 1 September 2023 and 25 July 2024. Attendance at the magistrates' court was set for 21 May. The explanation given to us as to why the judge was not told of this development was that those within the POCA Unit of the CPS were not aware of it at the time. The judge's Ruling

[26]The judge recited the evidence as to the chronology of events. He referred to the principles set out in R v S, and he gave an accurate summary of those principles. Applying the six factors identified in R v S, he said that if he took into account the assertions by the CPS in counsel's skeleton argument:

"… it appears that the answers to the six issues raised would be as follows: (1) 20 months. (2) It has been a wide investigation involving up to 12 suspects, staff have been replaced within the investigative team. (3) I have no information about what level of investigation had been done before the applicant's arrest in July 2024. The only information I have seen are the undated text messages referred to in the Affidavit submitted in support of the Restraint Order granted in August. (4) The Order covers the applicant's home, bank account balances and some personal items (watches) which he maintains are counterfeit; a claim which the police have not investigated. It is a wide-ranging order. (5) Broadly, the prosecution has asserted as follows (the emphasis is mine): Operation Gosling is a criminal investigation conducted by the East Midlands Special Operations Unit and prosecuted by the Complex Case Unit, into a conspiracy to supply Class A and B drugs. This has been a complex investigation featuring twelve suspects (not all added at the same time) and involving large volumes of evidence including significant amounts of phone data. In addition, the disclosure exercise is significant. There are investigation and disclosure preparation responsibilities on the prosecution before charge and the requirement that disclosure is front ended, so the necessary schedules are available at charge. The position should be assessed by reference to the evidence in the round and in circumstances where there are numerous suspects it is not justifiable to focus solely on the position with regard to [the applicant] in isolation. All the suspects and all disclosure had to be borne in mind… As such, the evidence against [the applicant] could not be considered in isolation and had to be investigated and considered as a whole. Given the number of individuals, devices involved, the large amount of evidence to be considered, the prosecution's disclosure responsibilities and the change of lawyer and OIC, it is submitted that the passage of time does not amount to an unreasonable delay in the particular circumstances of this case. (6) It appears to me, from broad submissions from Mr Bown [counsel for Mr Bewley] and from documents made available during the hearing, that the applicant had actively given information to the CPS and that there was an explanation for deposits (both in cash and by way of bank transfer) into his accounts. It would be wrong to conclude that the applicant has been in any way obstructive to the investigation. He gave responses in interview under caution."

[27]The judge then expressed his essential reasoning for discharging the restraint order in the following language:

"There is clearly a balance to be struck between the requirement to discharge a Restraint Order using the process set out in section 42(7) of the Act (in which there is no discretion) and the purposes of the Confiscation regime which operates under the 2002 Act that criminals should not profit from their crimes. This was confirmed by the Supreme Court in Waya [2013] 1 AC 294. I am also aware that the funds under restraint here may well not themselves represent the benefit from any criminal conduct, but will still fall to be forfeit should (a) there be a conviction for a drug trafficking offence and (b) a confiscation order made on the basis that the applicant has benefitted from general criminal conduct. The central question I have to consider is whether or not proceedings against the applicant have been started within a reasonable time. What investigations have taken place in respect of this applicant himself and the evidence relating to his alleged involvement in trafficking of drugs are clearly front and centre to the question. Having considered carefully the available information (and in particular the very generic, and non-specific responses from the prosecution), I am not satisfied that proceedings against him have been started within a reasonable time. No cogent evidence has been presented that there is a real risk that if the restraint order is discharged, the assets will be dissipated. The need to monitor disclosure and scrutinise seized devices is an important part of any investigation of this type. I am also aware that personnel change happens and that new members of an investigative team will need to be appointed. That does not abrogate the responsibility on the prosecution and police to move investigations on apace, especially where extensive Restraint Orders have been obtained from the court on the implicit understanding that criminal proceedings against the applicant would be commenced in the near future."

The Proposed Grounds of Appeal

[28]On behalf of the CPS, Mr Skudra advanced four written grounds for contending that the judge erred in law, namely that:(1) the judge failed to apply R v S rigorously and correctly to the facts he had before him;

(2) he failed to take any account of the decision to charge Mr Bewley on 15 April 2026, of which he was aware, and any account of his alleged breach of the restraint order;

(3) he fell into error in not applying or taking sufficient account of section 69 of POCA (i.e. the "legislative steer") as he ought to have done; and

(4) as a mater of law, because proceedings had been started within the meaning of POCA by the time the judge gave his ruling (albeit that he was unaware of that fact), he applied the wrong legal test.

Analysis

[29]We deal first with ground 3, which is that the judge should have taken account, or greater account, of the legislative steer in section 69 of POCA, which provides in relevant part that the powers conferred on the court by the provisions dealing with restraint orders:

"… (a) must be exercised with a view to the value for the time being of realisable property being made available (by the property's realisation) for satisfying any confiscation order that has been or may be made against the defendant; (b) must be exercised, in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property; …"

[30]The short answer to this argument is explained in [24] of R v S. By its terms it applies only to the exercise of powers and gives a steer as to the exercise of the discretion in exercising those powers. It is of no application to section 42(7)(a), which does not create a discretionary power but rather imposes a statutory duty on the court which is mandatory if the identified criterion of the passage of an unreasonable period of time is fulfilled. That is what the court meant by what it said in [28] of R v S about the legislative steer being subordinated to the operation of section 42(7)(a). To be fair to Mr Skudra, as a result of exchanges with the court along these lines, he did not pursue that aspect of his argument in his oral submissions.

[31]We take next ground 2, which comes in two parts. The first is that the judge failed to take any account of the decision to charge Mr Bewley on 15 April 2026. In our view, he was clearly right not to do so. Under section 42(7)(a), and section 41(7B), the judge was required to determine the application which had been made, which was that proceedings had not been brought within a reasonable time at the date of the application. Once such a period of time had elapsed, the court was bound to discharge the order. It makes no difference if (or that) proceedings have been subsequently authorised. Mr Skudra's submission was that it meant that the reasonable time issue would be found imminently to fall away. That is not so. It is fallacious to argue that a prosecutor who has failed to commence proceedings within a reasonable time can avoid the effect of section 42(7)(a) or section 41(7B) simply by subsequently authorising or indeed commencing proceedings. That would be contrary to the wording of those sections which ask simply whether proceedings for the offence are started within a reasonable time; and it would be contrary to the rationale for those sections which is that where an order has been obtained merely on the basis of the fact that an investigation has been launched, the prosecution should not be entitled to maintain the benefit of such a restraint order if it has failed to conclude the investigative stage and to commence proceedings within a reasonable period of time.

[32]The second part of ground 2 is that the judge ought to have taken account of the fact that Mr Bewley was alleged to have breached the restraint order. The ground is couched in careful and correct language. This was no more than an allegation, or, as the judge put it, an assertion in prosecuting counsel's skeleton argument for the hearing. In fact there was simply no evidence before the judge that there had been any breach of the restraint order. In any event, it was not suggested that the alleged breach had had any bearing on the time which could or should reasonably have been taken to commence proceedings. It was not suggested that it had had any bearing on the investigation. Indeed, in our view it was not capable of having been a relevant factor. It was something which could only go to the question of a risk of dissipation in the absence of a restraint order, which is what would justify the grant or maintenance of an order for the period of time permitted by the statute. But once that period of time had expired, no restraint order, however much it might otherwise be justified by a risk of dissipation, could be maintained. Put another way, the argument involves no more than reliance on the consequences of the restraint order being discharged by reason of the risk of the prosecution thereafter being unable to enforce a confiscation order against realisable assets. As was explained by this court in R v S, the consequences of the application of the statutory duty in section 42(7)(a) are not a relevant factor. If there has been the passage of more than a reasonable time for the commencement of proceedings, there is a statutory duty to discharge the order, whatever may be the consequences for the ability of the prosecution to enforce a restraint order in due course against realisable assets.

[33]We turn next to the fourth ground. It is an unattractive submission to argue that the judge failed to apply the correct test when handing down his Ruling on 27 April after argument had finished, because he had not been told that proceedings had been commenced in the meantime. It was entirely the fault of the prosecution that that was a matter of which the judge was unaware. But however that may be, the commencement of proceedings after a reasonable time has elapsed forms no bar to the application of section 42(7)(a) for the reasons we have explained. We asked Mr Skudra to identify what the test was that the judge ought to have applied. All he could do was to point us to the fact that the statute provides that when proceedings have been commenced, and when that is the statutory criterion under section 40 upon which a restraint order has been made, then the order must remain in place until the proceedings have been completed.

[34]Had the judge been made aware of the fact that proceedings had commenced, it would have been open to the CPS to make an application to him on the footing that if he concluded that the restraint order was to be set aside because of an unreasonable delay, nevertheless because proceedings had now been commenced, he should exercise a fresh discretion applying the commencement of proceedings condition and impose a fresh restraint order. That did not happen, and the judge was not asked to exercise that discretion.

[35]That leaves ground 1. This is an attack on the evaluative assessment of the judge in determining whether proceedings had been started within a reasonable time. The judge was right to treat the most important factor in this respect as being the nature and complexity of the investigation.

[36]The judge's criticism of the material on those issues which had been relied on by the prosecution was, in our view, fully justified. The court is obliged on an application of this nature to consider the evidence put before it by the parties, and it cannot and should not take into account assertion or allegation, unless that is a matter of common ground. Mr Skudra told us that it is not uncommon, as a matter of practice, for applications to be dealt with in the way the CPS approached this one, in which the court is simply told by counsel a number of matters which it is asked to take into account. If that is the practice, it is a practice which we do not condone. The court – and indeed the alleged offender and applicant – are entitled to have the evidence upon which the CPS wish to rely put forward in a proper, evidential form. There may be cases in which that is evidence which needs to be investigated, either by further particularisation or possibly by oral evidence and it being tested by cross-examination. Mr Skudra said that often such applications come on relatively quickly after they have been made. That is not a reason for their being considered otherwise that on a proper evidential basis. If the CPS need further time to respond to an application by the service of evidence, then they should seek an adjournment to enable them to do so. It may be appropriate for directions to be given.

[37]Returning to the case with which we are concerned, the evidence which was put forward on behalf of the CPS in relation to what was happening by way of investigation over the relevant period of time, and why, was very sparse, generic and largely uninformative. There was no evidence as to the state of investigation at the date of the original obtaining of the restraint order in August 2024. All that could be inferred was that it was an investigation into at least two suspects; that as far as Mr Bewley was concerned, he cannot have been a suspect for more than about seven months; and that as far as he was concerned, the case against him at that stage was based on four text messages. It was not, as Mr Skudra had suggested in his written argument "clear" that there had been no significant investigation before the restraint order was obtained in August 2024. As to the position since then, there was no evidence as to the number of people being investigated; and no evidence of any steps taken to investigate or gather evidence, apart from the analysis of mobile phones (save for enquiries of HMRC, as to which no indication was given as to the date of their response). There was no evidence of the number of mobile phones which needed to be interrogated; nor was there any evidence of the nature or volume of any documentation which needed to be assembled by way of front-loading the disclosure process before charge. There is no reason to suppose that evidence of those matters would have compromised the investigation or would have provided defendants with tactical advantage, and no such suggestion was made in the evidence, or indeed orally. General recourse to matters which might conceptually justify delay in charging cannot make good the lack of specific evidence as to what caused delay in a particular case.

[38]As to that, there are two passages which we regard as critical in the quarterly reports, which did constitute evidence. The first is the passage in the June 2025 report saying that the file was being submitted to the CPS for charging advice. That indicates that investigations into offending of all persons who were then suspects, not just Mr Bewley, were complete. That is because normally, as the CPS are keen to emphasise in their submissions, charging decisions in a conspiracy case of this kind would only be expected to be sought in relation to all potential defendants at the same time, because they would ordinarily only be expected to be made in relation to all potential defendants at the same time.

[39]The second piece of evidence is in the November 2025 report which identifies that since the file was submitted to seek charging advice in June 2025, the police had been made aware that the reviewing lawyer was no longer working on the case and that the case had been re-allocated to a different lawyer. In fact, the subsequent information given to the judge suggests that that had taken place in June 2025. More importantly, the November 2025 report said that since the last update a further suspect had been added to the case and that had caused further delay. But the officer in the case had confirmed, following consultation with the CPS, that new timescales had been agreed whereby the CPS would respond by 18 December 2025.

[40]The June to December delay is only explained in that most generic way. Moreover, the Christmas date for charging was not met. There is no evidence why not, or why a further four months then elapsed before the commencement of the hearing on 14 April, without a charging decision by then having been made. The reasons for that were left entirely unexplained.

[41]Mr Skudra submits that the judge should have taken greater account of the realities of litigation, of investigation and of the practical realities; should have taken greater account of the fact that the period up to completion of all reasonable lines in enquiry in November 2025 was not, as he submitted, slow or dilatory, and that there were the material considerations of the number of individuals being investigated; of the analysis of phones; of consideration of banking material; and of enquiries of HMRC. However, the judge was not obliged to consider those questions in the abstract. On the contrary, he was obliged to consider only what was put forward in evidence explaining the delay in the particular circumstances of this case. That was, as we have explained, inadequate.

[42]We should not be taken to be saying that the evidential material which the CPS should put before the court should always go into great detail and give chapter and verse of what was being done (as it was put by Mr Skudra). There may be very good reasons for not identifying the suspects by name; for only indicating the number of suspects and identifying them only in general terms; for only identifying the number of phones whose downloads need to be interrogated; for identifying in general terms the scale of that operation; and for identifying in general terms by reference to hundreds or thousands of pages, for example, the volume of documentation which needed to be addressed, and matters of that nature. All of that was entirely lacking in this case.

[43]A charging decision in a complicated case, where the evidence has to be drawn from many sources before being assessed against the evidential charging test, and which involves voluminous documentation and examination of downloads is one thing. The decision in a simple conspiracy to supply Class B drugs between two individuals, based on a handful of phone messages, is another. What happened in this case was that the court was given no evidential basis for concluding that the case fell above, or significantly above, the latter end of the spectrum.

[44]In short, the judge made no error of principle. He took account of all material considerations and did not taken into account any immaterial ones, and it cannot be said that the conclusion which he reached was one which no reasonable judge could have reached. It was a multifactorial, evaluative assessment and was not outside the range of conclusions within which views might legitimately differ.

[45]Accordingly, we refuse leave. ________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________