Daley & Ors R (on the application of) v Wolverhampton Crown Court & Anor [2003] EWHC 1307 (Admin)

CO/2367/2003 CO/2292/2003CO/2199/2003 CO/2312/2003[2003] EWHC 1307 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 16 May 2003
Strand
London WC2
B E F O R E:
MR JUSTICE MAURICE KAY
Between
THE QUEEN ON THE APPLICATION OF D DALEY, M FORREST, H MCKENZIE, S MARKSClaimant-v-
Between
WOLVERHAMPTON CROWN COURTDefendantTHE CROWN PROSECUTION SERVICEInterested Party
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR T SINGH, MISS N SINGH, MR S SANDHI & MR D GOTTLEIB (instructed by Baig, Khattak & Nunsaf) appeared for CLAIMANTSMR D JONES (instructed by DPP) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)
Crown copyright©Judgment
[1]MR JUSTICE MAURICE KAY: There are before the court today in one form or another, four applications for judicial review. The decision sought to be reviewed is the decision of HHJ Chapman, sitting at Wolverhampton Crown Court, whereby he extended custody time limits in relation to a case that is proceeding in Wolverhampton. It centres upon an allegation of conspiracy to supply class A drugs -- indeed, two separate conspiracies because two different class A drugs are alleged. The case is based upon purchases made, or said to be made, by undercover police officers from the defendants. The evidence includes video recordings which were made by concealed cameras about the persons of the undercover officers in the buildings where the supplies are said to have taken place, together with recordings from closed circuit television cameras positioned outside the buildings. As I understand it, it is the recordings from within the buildings which have an audio facility that are of particular significance.[2]There are six defendants in the case. Two of them make no application for judicial review for the simple reasons that Carol Daley is on bail and therefore unaffected by the decision on custody time limits, and the defendant, Reid, is in custody in any event, I understand, pursuant to the immigration legislation. Of the four claimants in this court, the matters have come to the attention of the court in this order. First of all, Marks lodged an application for judicial review and was given permission to apply by Mitting J on the papers. Then McKenzie applied. The papers in his case were placed before me, and knowing that Marks' case was listed for substantive hearing today, I gave McKenzie permission to apply and directed that the case be heard at the same time. There then followed applications on behalf of Devon Daley and Forrest. When the case was called on today, Forrest was represented before me by Miss Nina Singh, and I indicated that the pragmatic course was to grant him permission as well so that his case could be considered on the same basis. The fourth claimant, Devon Daley, was not represented in court when the case was called on, but by then, I had been told of his lodged application. I was provided with some material in relation to it and after lunch, counsel arrived on his behalf. That is not meant to convey any criticism of counsel; none is called for. He was the last to know of these events and as he said, he came out of courtesy to the court. What I propose to do, believing it to be the just and expedient thing to do is to grant Devon Daley permission as well and to deal with his case at the same time, counsel having told me that his application is essentially the same as that on behalf of the other claimants.[3]The urgency in the matter derives from the fact that a 4-6 week trial is due to commence in Wolverhampton on Monday before HHJ Faber and a jury.[4]I now go back to trace the history as to how we come to be where we are today. The police operation which gives rise to this case involved a period of surveillance and the test purchases to which I have referred, between 30 July and 13 August of last year. On 24 September, the six defendants were arrested and interviewed. In the course of being interviewed, they were shown, at least, extracts from the concealed camera videos, and, as I understand it, were asked to confirm or deny that it was they who were there depicted. All this was in the presence of a solicitor who, at that time, was representing all six defendants. Shortly after those interviews, they were all charged with substantive offences of supplying class A drugs. It was in relation to those charges that they appeared in Walsall Magistrates' Court on 26 September. Carol Daley was granted bail and the other five defendants were remanded in custody.[5]On 16 October, there were discussions on the telephone between the police and a CPS lawyer as to whether it might be appropriate for the defendants to be charged with conspiracies. On 21 October, the Crown Prosecution Service advised that conspiracy charges were appropriate. On 22 October, the Crown Prosecution Service wrote to the firm of solicitors, which was still then representing all the defendants, informing them of the proposal to prefer a conspiracy charge, and indicating that it could be preferred at Walsall Magistrates' Court at the next scheduled hearing on 31 October. That is indeed what happened. Because there was now a conspiracy charge, the matter became the subject of transfer rather than committal proceedings, and on 31 October, the defendants were transferred to Wolverhampton Crown Court.[6]The preliminary hearing in the Crown Court was held on 8 November. HHJ Chapman, the resident judge at Wolverhampton, gave directions which required the prosecution to serve its evidence by 20 December and provided for a plea and directions hearing to be held on 17 January. On 17 December, the Crown Prosecution Service served papers on the defence solicitors. In addition to the firm that had originally represented all six, there was now a second firm which was representing the two Daleys. On 15 January 2003, primary disclosure was made to the defence solicitors. The matter then came back before HHJ Chapman on 17 January. It is difficult to know with precision what transpired on that occasion, but it appears to be common ground that counsel on behalf of all the defendants asked that they be not arraigned and reference was made as to the implications for credit for any subsequent plea of guilty. It also seems to have been observed by the judge that defence counsel should see the video material before their clients were arraigned in any event. That was Mr Talbar Singh's recollection, and Mr Jones, who was present, does not dispute it. Accordingly, there was not a definitive plea and directions hearing although some further directions were given and it was arranged that the plea and directions hearing would be held on 21 February. On 20 January, some requests were made by defence solicitors for copies of the video evidence, but no such request was made on behalf of others. On 23 January, the Crown Prosecution Service requested the video material from the police. On 24 January, the police informed the Crown Prosecution Service of difficulties about copying and editing the video evidence, which involved removing the facial features of the test purchase officers.[7]On 27 January, the Crown Prosecution Service invited the solicitors who had requested the video material to contact the police to arrange a viewing of the material on police premises. So the matter continued along its way. It seems that on 6 February, that is about a fortnight before the newly scheduled plea and directions hearing, one of the defendants had the case mentioned before Mr Recorder Pardoe QC, and on that occasion, the Recorder made a general order that copies of the edited videos were to be supplied, as I understand it, to all defence solicitors by 13 February. He excluded the outside CCTV material which remained available for viewing at the police station. Pursuant to the Recorder's order, the video material ought to have been supplied by 13 February, but it was not in fact sent to the defence solicitors until 18 February, some five days late. By then there were five firms of defence solicitors involved and the material was sent to each of them. On 21 February, the rearranged plea and directions hearing took place before HHJ Orme. The defence submitted that they were not ready because they had only recently received copies of the edited videos which had arrived later than had been required by the Recorder's order. The defence applied for a further adjournment of the plea and directions hearing and it was further adjourned to 13 March. The judge indicated that there would be no further adjournment and that the defendants must enter realistic pleas on that day.[8]On 13 March, the definitive plea and directions hearing did occur before HHJ Onions. All the defendants pleaded "not guilty" and the matter had to be adjourned for trial. The time estimate was 4 to 5 weeks. It seems that the earliest date the court could promise at that stage was 28 May and that was provisionally fixed. That raised potential problems as far as custody time limits were concerned because such limits would expire in relation to the substantive charges on 27 March, and in relation to the conspiracy charges, on 1 May. It seems that the question of custody time limits was raised before the judge on that occasion. It was apparent that it would be a contentious matter and arrangements were made for a custody time limits hearing on 26 March. Before everyone dispersed on 13 March, it was understood that the court would continue to investigate the possibility of an earlier listing if necessary at a different venue.[9]That brings me to what I shall refer to as "the first custody time limits hearing". It took place before HHJ Tonking on 26 and 27 March. He was being invited to extend custody time limits on the understanding that the trial was still likely to proceed on 28 May. In order for an application for custody time limits to be extended to succeed, the court has to be satisfied, for present purposes, that there is a good and sufficient cause behind the need for the extension, and that the prosecution has acted with all due diligence and expedition. Those are the relevant parts of section 22(3) of the Prosecution of Offences Act 1985.[10]Judge Tonking refused to extend time limits. It is necessary that I say something about his detailed ruling. I include the following quotations:
"The service of the case was ordered by 20 December to allow time to prepare the case for an effective plea and directions hearing on 17 January. That hearing was ineffective for a number of reasons, but it is plain that one of the reasons was that the defence had not got, and so the defendants had not been able to see, any of the surveillance video evidence. I underline the word 'evidence' . . . "
The fact is that it is not for the defence to have to request the prosecution to serve its evidence." There is then a reference to the order that was subsequently made in February requiring service of the video evidence by 13 February and the fact that the prosecution did not comply with it until 18 February.

The judge then said:

"In my judgment . . . the evidence which is contained by way of video surveillance on video tapes is of crucial significance to any defendant wishing to prepare his case, and it is impossible for defence counsel or solicitors to advise on plea without having had sight, and without the defendant having had sight, of such evidence. It is in my view fundamental and cannot be put, as it were, to one side on the basis that it is fully described in witness statements . . . "
It is also inevitable and it must have been foreseen that it was inevitable that they would have to be produced as evidence. Maybe there needed to be mosaics in order for undercover officers not to be revealed on the tapes, but taking a maximum of 20 tapes and a maximum of 10 minutes or so each, in my judgment, there was ample time for the prosecution to do that so that they could have been served by 17 December. That they were not served before the plea and directions hearing was a significant contributory factor to that hearing being ineffective. That they were not served until late after the order for service by 13 February meant that the second plea and directions hearing was rendered ineffective . . . "It follows from all that I have said, and it must be clear from all that I have said, that I cannot find in this case, despite the fact that the prosecution have in many other respects acted with considerable diligence and expedition, particularly in tracing solicitors and re-serving papers, I cannot find in relation to this crucial evidence that they acted with all due diligence and expedition. I also find that the lack of those videos was causative of the late fixing of the trial date so that it was fixed outside the custody time limit." Finally, he added:
"Accordingly, I do not extend the custody time limits which will expire at midnight on 1 May 2003. It is to be hoped that in the light of this ruling the court, for it is the responsibility of the court, not for the prosecution, the court can find a judge and a court room to try the case before the custody time limits expire. If that is not possible, then at that time the defendants will have to be admitted to bail. As to conditions, that is a matter to be canvassed at that time and not today."
[11]By chance, almost immediately after the learned judge had delivered that ruling on 27 March, information came to hand which rendered it possible to list the trial on 28 April. It was then so fixed. If it had commenced on 28 April, none of the problems that we now face would ever have come to pass because that date was prior to the expiry of custody time limits in relation to the conspiracy charges. However, on or about 24 April, because of a combination of circumstances affecting the availability of suitable judges or court rooms, the trial date of 28 April had to be vacated. It was some time after that that the matter was fixed for 19 May. When 28 April was vacated, the prosecution applied again to extend custody time limits. This time the application came before HHJ Chapman. He extended custody time limits to a date beyond 19 May, and on 6 May, he gave a reasoned judgment explaining why he had done so. It is everybody's recollection that at the commencement of the hearing before him, Judge Chapman had indicated his unwillingness to go behind the ruling of Judge Tonking. The ruling of Judge Chapman appears to have proceeded on the assumption that Judge Tonking's finding of a lack of due diligence and expedition on the part of the prosecution related solely to the 5-day delay in complying with the order of Mr Recorder Pardoe because Judge Chapman said that Judge Tonking "was unable to find that the Crown had acted with due diligence because they were 5 days late in serving the videos". It seems to me that that evidences a misunderstanding of Judge Tonking's reasoning, which was certainly not limited to that 5-day period. I refer to the passages which I have already set out.[12]Judge Chapman was then concerned to observe that a lack of due diligence and expedition in itself is not always a barrier to the extension of custody time limits because there are circumstances in which the lack of due diligence and expedition is not causative of the subsequent delay in the commencement of a trial. He referred to authorities to that effect and there is no doubt that he correctly appreciated their significance. He concluded:
"Now here, as I have explained, this case could not have been tried either here or elsewhere before 28 April, no matter when or how early this year the plea and direction had been held."
In other words, he was taking the view that accepting a degree of lack of due diligence and expedition, albeit mistakenly assuming that to have been found only to have been 5 days, that lack of due diligence and expedition had not affected the listing date because the case could never have been listed before 28 April, and when 28 April came to be vacated, that was not the result of any act or omission on behalf of the prosecution; it was the result of cases overrunning and other vicissitudes of daily life in a busy Crown Court centre. He added:
"It seems to me that in order to succeed with an application the Crown must, on the balance of probability, demonstrate two things. The first is that the need for the extension of the custody time limit is due to some good sufficient cause, and secondly, that the prosecution has acted with all due diligence and expedition. As I read the authorities, the second question only arises if the first is proved, and only arises adversely if the failure contributes to the need for the extension. It is not a freestanding bar to an extension whatever the reason why the extension is applied for. I am therefore satisfied that there is good and sufficient reason why the time limits here should be extended, and I am satisfied that the Crown have acted with due diligence in the sense that their failure at an earlier stage to supply the videos on time did not contribute in any way to the need for them to seek the present extension."
[13]I interpret his judgment in this way. He was accepting Judge Tonking's finding of a lack of due diligence and expedition. He was misunderstanding its ambit because he wrongly believed that it was limited to the 5-day delay to which I have referred, and he was concluding that as a matter of causation, the default of the prosecution had not contributed to the need to extend time limits for which there was, in his judgment, good and sufficient cause derived from the listing difficulties which had arisen. I should add that I have every sympathy with judge Chapman in relation to his understanding of Judge Tonking's ruling because, unfortunately, there was no transcript of it available for him at the time. I am told that counsel invited him to listen to the recordings of the proceedings, but it is no surprise that he declined to do so.[14]That then is the history and now these four claimants seek to quash that decision of Judge Chapman. On behalf of the Crown Prosecution Service, Mr Jones is trenchantly critical of the defendants and their successive legal advisers. He seeks to portray this as a case of overwhelming evidence in which the defendants have engaged in numerous delaying tactics of which this application is simply the most recent. He suggests that if the decision of Judge Chapman is quashed, and particularly, if the defendants in the trial are admitted to bail, then some of them, at least, may well abscond to Jamaica where they have connections. I can well understand why Mr Jones is critical of the defence approach to the case. That view, from the perspective of the prosecutor, is hardly surprising. However, the approach of the defence to the case does not appear to have formed part of the reasoning of Judge Chapman in his ruling. His ruling rests on the points to which I have referred combined with his understanding of the listing difficulties. As a long standing resident judge in that busy court centre, he was peculiarly well placed to inform himself of the listing difficulties. What I have to consider is whether the decision he reached was a lawful and reasonable one in all the circumstances that were before him. In approaching that task, I remind myself of the strictures of Lord Bingham in ex.p McDonald where it was said that this court should be slow to interfere with a decision of a Crown Court judge on this issue. However, I have to say that I am not satisfied that Judge Chapman's approach to this case was free from error. I have already referred to the error, for such I believe it was, about the basis of Judge Tonking's finding about the lack of due diligence and expedition. However, I also have a concern, and it is an important concern, about the conclusion that the case could not have been tried in Wolverhampton or elsewhere before 28 April "no matter when or how early this year the plea and directions had been held". It is implicit in Judge Tonking's ruling, indeed it is explicit as well, that in his judgment, there had been culpability on the part of the prosecution in not serving the video evidence in time for the January listing of the plea and directions hearing, let alone the February one. It is abundantly clear from Judge Chapman's ruling that he conducted detailed inquiries as to the attempts to list the trial beginning with the attempts at, and immediately after, the plea and directions hearing on 13 March. Thus, of that occasion, he states:
"At that stage, the earliest certain date the listing officer could offer was May 28 . . . the judge asked that that date should be taken but requested the listing officer to see if an earlier date could be found. She did canvass Birmingham, Stafford, Shrewsbury, Stoke, Nottingham, Northampton, Warwick, Coventry and Worcester. None could offer an earlier date and several reminded her that they did not have any court rooms big enough to accommodate a case of such size."
[15]A later passage reads:
"When she began looking for a judge to hear this case on March 27 there was no judge available from April 28 for 5 weeks."
What is not apparent to me from the ruling is that a similar investigation took place as to what the listing possibilities would have been if the plea and directions hearing had taken place not on 13 March, but on 17 January or 21 February. It seems from one document placed before me that on 24 January, another case in Wolverhampton called Britain and Others was fixed for 7 April. That was an important case involving five defendants.[16]Accordingly, I have come to the conclusion that it may well be that if the plea and directions hearing had taken place in January or February, the listing possibilities of this case might not have been as Judge Chapman identified them on the basis of his researches into the position seen from a standpoint in March. I infer that that was the outer limit of his investigation because of his words "as I have explained", the case could not have been tried before 28 April come what may. What he had explained related to circumstances in March and not circumstances in January or February. I confess to considerable unease about this case. That is perhaps contributed to by the fact that with goodwill all round, it has been brought on very quickly, and it may be that had more time been available for preparation and hearing, the matter could have been addressed more satisfactorily. However, I can not escape the conclusion on the material which is before me, that Judge Chapman's decision is vitiated by the factors to which I have referred. Accordingly, and with considerable hesitation, respecting, as I do, the judgments of Judge Chapman, a resident judge of high repute, this decision will have to be quashed.[17]There then arises the question of what flows from that. It is a question I raised hypothetically with counsel in the course of submissions. Since I raised it, a number of things have passed through my mind in relation to it. Counsel requested that they be permitted to return to that issue if I were to quash the decision. They may address me briefly on that but I make it clear that I will take some persuading that the appropriate course is not simply to remit the matter to the trial judge on Monday so that he can take the decision on the prosecution's application in substitution for the decision that I have just quashed.[18]MR SINGH: I am sorry, I did not quite follow that.[19]MR JUSTICE MAURICE KAY: What I am minded to do is quash the decision and remit it to Wolverhampton Crown Court. If I do that, I assume that the prosecution will invite Judge Faber to rule upon their application for an extension of custody time limits. He would have to do so in the light of my judgment.[20]MR SINGH: With your Lordship now quashing the decision made by HHJ Chapman, it therefore follows that custody time limits expire on 1 May.[21]MR JUSTICE MAURICE KAY: I do not think it does because there is an application that the prosecution had made that has not been determined, and it was a timely application. You mean that a judge now, after 1 May, cannot extend custody time limits that expired on 1 May?[22]MR SINGH: Correct.

MR JUSTICE MAURICE KAY: You may be right.

[24]MR SANDHI: My learned friend, Mr Singh (inaudible) I think you may need to look at that. It is right that custody time limits cannot be extended any more. Your Lordship has made the ruling and they will have to be realised on bail. They cannot be kept in custody any longer as of now, since the ruling has been made.[25]MR JUSTICE MAURICE KAY: I think what I had in mind was the case from Leeds that I was involved in once before where perhaps the chronology was a little different.[26]MR SANDHI: Your Lordship will have to consider the question of bail. We may need some time to speak to the Crown to agree conditions which your Lordship can then agree with.[27]MR JUSTICE MAURICE KAY: Mr Jones, do you want to say anything about what should follow? I think I was a little in error when I said what I said a few minutes ago.[28]MR JONES: The application, as your Lordship has indicated, has not been ruled upon yet.[29]MR JUSTICE MAURICE KAY: No, but it is not an application that can be meaningful if the date has passed; that is what is being said.[30]MR JONES: It is effectively still before HHJ Chapman.

MR JUSTICE MAURICE KAY: It is before the Wolverhampton Crown Court.

[32]MR JONES: It is effectively part heard because, for instance, my Lord, if one could obtain the correct position by Monday from listing as to what was the situation on 17 January, that may fill in the gap that gave your Lordship concern. So that the application, ie being part heard, would be resolved one way or another. Your Lordship's decision is, of course, on the assumption, I do not criticise it, on the assumption that there could have been another date. Now the two courts, or courts 2 and 7, 7 has been (inaudible) the order.

MR JUSTICE MAURICE KAY: I do not want to go into all that.

[34]MR JONES: It may well be that one could satisfy the court with further information that, in fact, the situation was that there really was no alternative, and if that be the situation, there would not have been any fault on the prosecution.

MR JUSTICE MAURICE KAY: That is what I had in mind.

[36]MR JONES: That is what I would urge your Lordship to do.[37]MR JUSTICE MAURICE KAY: You have heard what I have said, maybe it would be a good idea -- you are all opening Archbold and taking instructions from Mr Balbar Singh in his capacity as a bird of passage in this case. Why not go outside, discuss it amongst yourselves, read what you want to do, come back before me and, in the meantime, I will hear Mr Singh in relation to his case. (Short Adjournment)

MR JUSTICE MAURICE KAY: Mr Jones, where are we up to in your case?

[39]MR JONES: I am fine as to the relevant matters at page 121 where it says:
"It will rarely be appropriate to grant permission to apply for judicial review [I know that might seem like closing the stable door after the horse has bolted] when the outcome has become academic because the proceedings have moved on or would have moved on to the next stage."
[40]So the next stage is Monday morning when the trial is due to start. In my respectful submission, since your Lordship is concerned about whether there was or was not a situation in which there could have been accommodated another trial date, that would be appropriate. Find that out on Monday and accordingly deal with appropriate relief or not then.

MR JUSTICE MAURICE KAY: I am not following.

[42]MR JONES: Your Lordship's concern was: is there or is there not, or was there or was there not, evidence of an appropriate alternative date on 17 January.[43]MR JUSTICE MAURICE KAY: Or the February date. My concern was whether Judge Chapman fell into legal error -- neither more nor less.[44]MR JONES: Yes. If the court could be satisfied, either this court or the court which was considering the matter, that that is the situation, ie there really is not an alternative or was not an alternative on 17 January or 21 February, then your Lordship's view would effectively be: well, I am satisfied that it was right to extend custody time limits. So really the matter is in the situation where your Lordship needs to know that material before granting relief, in my respectful submission.

MR JUSTICE MAURICE KAY: Any relief? Not even quashing the decision of judge Chapman?

[46]MR JONES: Yes.[47]MR JUSTICE MAURICE KAY: It must be a common occurrence that when somebody challenges a decision extending custody time limits, the original custody time limits have already expired by the time it is heard in this court because very often the application to extend in the Crown Court will only have been made days before the custody time limits are going to expire, and so by the time the ruling is made and somebody has considered it and lodged an application here and time has been found to hear it, you are beyond the original custody time limits date.[48]MR JONES: If the matter is something that effectively this court requires to know further information about, then in my respectful submission, the matter has not effectively been resolved. For instance, the only document that I have about this matter proceeding is one where Mitting J observed that it is not reasonably practical to list this before 19 May because of the need for transcripts.[49]MR JUSTICE MAURICE KAY: That did not materialise. We got the transcripts and we heard it before 19 May.[50]MR JONES: But in this permission, he actually said "no". So, my Lord, my concern is, when one looks at that authority, that when one has not reached the stage where one would have moved on to the next stage --[51]MR JUSTICE MAURICE KAY: I do not really understand all this because Mitting J signed that order on 9 May. He had already given permission on 7 May. On 7 May, on the standard SJ form that is used in this court, Mitting J made this[52]MR JONES: I only have that it says "no".[53]MR JUSTICE MAURICE KAY: Let us just see what else is going on. Mr Singh, have you struck any gold in your mining?[54]MR SINGH: There is the case that was referred to your Lordship prior to the adjournment, R v Sheffield Justices ex.p Turner.

MR JUSTICE MAURICE KAY: Was I given a copy of that?

[56]MR SINGH: Your Lordship has not been given a copy of it.

MR JUSTICE MAURICE KAY: What does it say?

[58]MR SINGH: Very simply this. The custody time limits were extended to a day after the expiry of the time limits and the court ruled that notwithstanding the extension, the claimant in that case was entitled to bail as of right.

MR JUSTICE MAURICE KAY: Where do I see the case set out?

[60]MR SINGH: 119 of Archbold. Your Lordship is welcome to the copy I have.

MR JUSTICE MAURICE KAY:

"There is no power to grant an extension of a custody time limit after it has expired, but the expiry of one custody time limit is not a bar to detention under a different custody time limit . . ."
[62]MR SINGH: If your Lordship continues to read on.

MR JUSTICE MAURICE KAY:

"Thus, where the Crown Court has refused to extend a custody time limit, the Divisional Court can provide no useful relief once the relevant time limit has expired."
[64]MR SINGH: It seems to me, with respect, that the position we are in is absolutely simple. The time limits have expired; your Lordship has quashed the decision of HHJ Chapman; the issue now is at an end. The time limits, as I say, have expired and bail is now applicable as of right.[65]MR JUSTICE MAURICE KAY: That would seem to follow from the sentence beginning, "Likewise . . ." on page 120. That is our situation: an extension of custody time limit is quashed, and I was contemplating a reconsideration in accordance with the correct principles, and it says there is no power to reconsider in accordance with the correct principles if the time limit has by then expired.[66]MR SINGH: Yes.

MR JUSTICE MAURICE KAY: If you had not acted promptly, then that might have been a reason for --

[68]MR SINGH: Yes, but there is no suggestion of that occurring in this scenario.[69]MR JUSTICE MAURICE KAY: How can that can work, in a sense, because the scenario here was that the custody time limits were due to expire on --[70]MR SINGH: Last Sunday.[71]MR JUSTICE MAURICE KAY: And the reasons given for the ruling were not given until after the time limits have expired.[72]MR SINGH: Correct, on 6 May.[73]MR JUSTICE MAURICE KAY: So you would not know until reasons were given if you had any grounds of challenge anyway.[74]MR SINGH: Correct. You will note on behalf of Stephen Marks, on the day the judgment was given, on 6 May, the application was lodged on the very same day, subsequent to HHJ Chapman's judgment. So there has not been a minute's delay.[75]MR JUSTICE MAURICE KAY: No. Some of the others have only joined in later, but it has not resulted in any delay of their cases being heard because they have been heard with yours. So what you are saying is all I can do is impose conditions on their bail?[76]MR SINGH: Correct.

MR JUSTICE MAURICE KAY: I think you are right.

[78]MR SINGH: Shall we deal with that now your Lordship.[79]MR JUSTICE MAURICE KAY: What conditions are you seeking, Mr Jones? The same in the case of each defendant?[80]MR JONES: Yes.

MR JUSTICE MAURICE KAY: What are they?

[82]MR JONES: My Lord, residence curfew between 7 in the evening and 7 in the morning.

MR JUSTICE MAURICE KAY: Do they all live in the West Midlands?

[84]MR JONES: Yes. Reporting twice a day to police. This is important Saturday and Sunday, my Lord, because we will have the trial starting on Monday.

MR JUSTICE MAURICE KAY: At Wolverhampton?

[86]MR JONES: Yes, my Lord.

MR JUSTICE MAURICE KAY: Where do you want them to report to?

[88]MR JONES: Walsall, my Lord.

MR JUSTICE MAURICE KAY: When? 10 and 4?

[90]MR JONES: 10 and 4, my Lord.[91]MR JUSTICE MAURICE KAY: Right, that is for Saturday and Sunday and any subsequent Saturday and Sunday during the trial.[92]MR JONES: Yes, my Lord.

MR JUSTICE MAURICE KAY: What else?

[94]MR JONES: Not to apply for any travel documents.

MR JUSTICE MAURICE KAY: Foreign travel documents? They can buy a bus ticket, can they not?

[96]MR JONES: My Lord, yes. As to the residences, for instance, one might give an address which is just a dead letter address, no post number.

MR JUSTICE MAURICE KAY: Presumably you would want addresses that the police can check.

[98]MR JONES: Exactly, my Lord. I do not want anything to be a potential abuse, but that the address be acceptable to the police, ie it is a genuine address, that is the real point.[99]MR SINGH: It has just been raised that the suitability of an address cannot be an imposition the Crown seek or it is a post release condition. It frustrates the decision that your Lordship has come to today.

MR JUSTICE MAURICE KAY: Did they have addresses in the Wolverhampton area prior to their arrest?

[101]MR SINGH: Yes.

MR JUSTICE MAURICE KAY: Are those addresses still open to them in each case?

[103]MR SINGH: Certainly on behalf of Stephen Marks it is open to him.[104]MR GOTTLEIB: On behalf of Devon Daley, he would live at his wife's address, Carol Daley, who is on bail.

MR JUSTICE MAURICE KAY: Miss Singh, so far as Forrest is concerned, does he have an address?

[106]MISS SINGH: I am afraid I am without instructions on that particular point, my Lord.[107]MR JUSTICE MAURICE KAY: I will fix any addresses that the prosecution have for them. If it turns out they are no longer available, they will have to apply to the judge on Monday for a variation.[108]MR JONES: Where they were arrested is what we have.

MR JUSTICE MAURICE KAY: Were they arrested at home?

[110]MR JONES: They were arrested at these addresses.[111]MR JUSTICE MAURICE KAY: Whenever I have prosecuted cases the prosecution always had, on the first page of the file, the person's home address or NFA.[112]MR JONES: Carol Daley and Devon Daley, 11 Jerome Road, Walsall. Marks is 7 Eyland Grove, Walsall.

MR JUSTICE MAURICE KAY: Yes.

[114]MR JONES: Your Lordship may see why we are concerned when it comes to Hosang McKenzie because he is at 36 Brace Street which is the very centre used for the drug dealing.[115]MR SANDHI: My Lord, can I deal with that, that is not right. He was asleep there and he is the brother of Mr Daley, and Carol Daley is his sister-in-law. His address is 11 Jerome Road as well.

MR JUSTICE MAURICE KAY: That is where you want his residence to be?

[117]MR SANDHI: Yes, he was arrested at Brace Street, he does not live there.

MR JUSTICE MAURICE KAY: Right, so that just leaves Forrest.

[119]MR JONES: Which is 116C Caldmore Road, Walsall. That is boarded up now, I understand.[120]MR JUSTICE MAURICE KAY: I can say either that address or such other address as agreed with the police, can I?[121]MR JONES: Yes, my Lord.[122]MR JUSTICE MAURICE KAY: Or fixed by Wolverhampton Crown Court. Thank you very much. Anybody want to say about the conditions that are sought?[123]MR SANDHI: Just for clarity, my Lord, these offences have been committed mostly during part of the day, not late in the evenings and nights. There is a condition of residents to stay at the address and there is a condition reporting for two days. I wonder whether the curfew serves any purpose. They are not late night offences in any manner.[124]MR JUSTICE MAURICE KAY: Thank you. Anybody else have any submissions?[125]MR SINGH: I adopt the submissions in relation to the curfew. These are not offences that took place in the evening.[126]MR JUSTICE MAURICE KAY: Thank you very much. In each case, they my be admitted to bail on these conditions. A condition of residence in the case of Daley: 11 Jerome Road, Walsall. In the case of Marks: 7 Eyland Grove, Walsall. In the case of McKenzie: 11 Jerome Road, Walsall. In the case of Forrest: 116C Caldmore Road, Walsall.[127]In each case they must reside at those addresses, or such other addresses as either agreed with the police, or fixed by Wolverhampton Crown Court. In each case there will be a curfew from 7pm to 7am. In each case there will be a restriction upon the application for any foreign travel documents, and in each case, they must report twice on each Saturday and Sunday to Walsall Police Station at 10 o'clock in the morning and 4 o'clock in the afternoon, starting tomorrow and throughout the period of the trial, or until further order.[128]MR SINGH: Two final matters. Could your Lordship flex some judicial muscle so that the authorities at HMP Blakenhurst are aware of today's judgment. The address can be given at the conclusion of this hearing to your learned clerk.

MR JUSTICE MAURICE KAY: Yes.

[130]MR SINGH: Secondly, the issue of costs --

MR JUSTICE MAURICE KAY: They are all legally aided are they?

[132]MR SINGH: They are all legally aided.[133]MR JUSTICE MAURICE KAY: They are legally aided here under different provision from that which obtains in the Crown Court. Having said that, it is a criminal causal matter here. You are not seeking costs against the Wolverhampton Crown Court, are you?[134]MR SINGH: No.

MR JUSTICE MAURICE KAY: You are not seeking costs against the CPS?

[136]MR SINGH: Well, it is a possibility that your Lordship can canvass

MR JUSTICE MAURICE KAY: Am I not enabled to grant costs out of central funds?

[138]MR SINGH: Yes, you are.[139]MR JUSTICE MAURICE KAY: That is the usual order in criminal cases in this court unless somebody behaves with impropriety and there is none of that here. So you want orders from central funds, and do you need an order for Legal Services Commission Assessment as well?[140]MR SINGH: Yes, to be taxed.[141]MR JUSTICE MAURICE KAY: Very well, same for each of you. Thank you all very much.

order

"Permission is hereby granted. It is arguable that Judge Chapman was not, on the material before him, entitled to revisit the decision of Judge Tonking . . .". Then he directs transcripts and so on. I suppose somebody must have said to him that the transcripts are not going to be available. Here you are, it is a letter to him from the court. That document you are looking at: "it is not reasonably practicable to list this before 19 May", was in answer to a letter from the court staff to Mitting J, asking for his directions as to whether the matter should be listed on or before 16 May. He said "no" because of the need for transcripts, but, in fact, we overcame that problem.