Smith, R (on the application of) v Bristol Crown Court & Anor [2005] EWHC 1579 (Admin)

Case No CO/4190/2005

[2005] EWHC 1579 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Wednesday, 29th June 2005

Strand

London WC2

B E F O R E:

MR JUSTICE DAVIS

Between

THE QUEEN ON THE APPLICATION OF SMITHClaimant

-v-

Between

BRISTOL CROWN COURTDefendant

CROWN PROSECUTION SERVICEInterested Party

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR G HARRIS (instructed by Sears Blok) appeared for CLAIMANT

MR M CHAMBERLAIN (instructed by Bristol Crown Court) appeared for DEFENDANT

MR D TAIT (instructed by the CPS) appeared for INTERESTED PARTY

J U D G M E N T

[1]MR JUSTICE DAVIS: This is a claim for judicial review in respect of a ruling given in the Bristol Crown Court by His Honour Judge Ticehurst on 10th June 2005 whereby he acceded to an application of the Crown to extend custody time limits in the case of a particular defendant called Anthony John Smith.

[2]Permission was granted on the papers by Lightman J as recently as 27th June with a direction that it come on for hearing on 29th June; that is to say, today. It is therefore the case that the respondents to this application in the nature of things have had not much time to develop their arguments and indeed to adduce all the evidence that otherwise they might have wished to adduce, although it is right to record that no application for an adjournment was made before me today.

[3]The statutory jurisdiction which Judge Ticehurst was exercising is familiar to those appearing in the Crown Court and it is contained in section 22 of the Prosecution of Offences Act 1985, as amended. By subsection (3) it is provided that the appropriate court may at any time before the expiry of a time limit imposed by the regulations extend or further extend that limit, but the court is not to do so unless it is satisfied, amongst other possible candidates, that there is some other "good and sufficient cause" and, in addition, that the prosecution has acted with all due diligence and expedition.

[4]The relevant rules provide, by Rule 5 of the Prosecution of Offences Custody Time Limits Regulations 1987, that the maximum period of custody between the time when the accused is committed for trial and the start of the trial is, subject to the following provisions of that regulation, to be 112 days. It should be said at the outset that the only issue before Judge Ticehurst was whether there was "some other good and sufficient cause" for extending the time limits. It has been accepted all round that the prosecution has throughout acted with all due diligence and expedition.

[5]It is, I think, appropriate to remind myself, as I do, that by the statute the decision in this context is conferred on the judge in question. It is a matter for his discretion by reference to the circumstances of the case, he of course being required to apply the words of the statute, as was stressed by Rose LJ in the case of R (ex parte Gibson) v Crown Court at Winchester

[2004] 1 WLR 1623

. In the course of his judgment he says this at paragraph 48:

"It is therefore desirable while recognising the importance of review by this court in exceptional cases to assert the primacy of the Crown Court Judge's role in exercising discretion in relation to custody time limits ... subject to the need, as Lord Woolf CJ has said, for rigorous scrutiny by the Crown Court Judge before custody time limits are extended."

[6]The essential issue in this case is, as it seems to me, rightly formulated by Mr Chamberlain appearing on behalf of the respondent in his skeleton argument, the Administrative Court is not whether this court would have extended custody time limits but whether His Honour Judge Ticehurst wrongly exercised his discretion, bearing in mind that the decision was for the judge in the court below to make.

[7]The background facts are of some importance in explaining the rather unusual circumstances in which the application for an extension of the custody time limit came before Judge Ticehurst on 10th June 2005. Mr Smith was arrested on 4th July 2004 in respect of what appears to be a major supply of drugs, both Class A and Class B, as alleged by the Crown. In addition, other co-defendants were arrested. On 7th July 2004, Mr Smith and a co-accused appeared before the Bristol Magistrates and were committed for trial before the Crown Court. It is from that date, therefore, that the 112 day period is to be taken to run. I have been told, in fact, that Mr Smith has been in custody ever since 4th July 2004.

[8]I should just add that Mr Tait, appearing on behalf of the Crown Prosecution Service before me today, did tell me a little about the antecedents of Mr Smith. These include a previous conviction for importation of drugs in 1995 whereby he received a sentence of 12 years' imprisonment and a confiscation order was also made in the sum of over £1.2 million. From the limited information put before me, I find it difficult to think that any application for bail if made by Mr Smith could have prospered. Indeed I was told that no application for bail was made. However, I think it important to state at the outset that such considerations cannot properly be allowed to distort the proper disposition of an application for an extension of custody time limits. The reason why custody time limits are there, pursuant to statute, are clear and it seems to me that the possibility that a particular defendant in a particular case if a custody time limits extension application is refused thereafter might if released, abscond or commit further serious offences cannot be allowed to dictate the outcome of the application for an extension of the limits.

[9]After the committal of the defendant and his co-accused there was a preliminary hearing in the Crown Court before His Honour Judge Foley. Standard directions were given and a pleas and directions hearing was set for 25th October 2004. That pleas and directions hearing was conducted by His Honour Judge Bursell QC where further directions were given and the pleas and directions hearing was adjourned to 25th November 2004. That hearing took place before His Honour Judge Roach and Mr Smith and the co-accused were arraigned, Mr Smith pleading not guilty to all charges. The prosecution then requested 14 days to complete the relevant form and 21 days to provide witness availability. The court acceded to a prosecution request for a trial judge to be allocated. I add that it was accepted that this was properly allocated as being appropriately heard by a Circuit Judge and not by a Recorder.

[10]A case progression hearing was fixed for 4th January 2005 before the allocated judge. In the event the judge allocated was His Honour Judge Ticehurst. A hearing took place duly on 4th January 2005 and directions were given. It was noted that trial should take place, so far as Mr Smith was concerned, during the month of June with an estimate of around three weeks. There was an application to extend custody time limits to 29th March 2005. That was not opposed and was granted by His Honour Judge Ticehurst. That was the first application for the extension of custody time limits. The matter was then adjourned to 11th March when it was proposed that the trial date would be set. During January Mr Smith served his defence statement and further evidence was also served by the prosecution.

[11]On 11th March 2005 there was a further hearing before His Honour Judge Ticehurst. The judge sent the parties off to the Listing Office to check the availability for a June trial. On the parties' return the judge fixed the starting date for the trial of Mr Smith as 13th June 2005 with a time estimate of around four weeks, that being a date convenient not only for the judge at that time but also for all parties, witnesses and counsel. I add that the trial was likely to be a relatively heavy one and indeed Mr Tait was to have leading counsel for the prosecution. Custody time limits were extended again to meet that trial date.

[12]At around this time it appears that His Honour Judge Ticehurst was involved in a particular matter in the County Court in family proceedings, he also sitting in such matters in the County Court. On 29th April 2005 he conducted a directions hearing in the family case, which may be called "T". It appears that Judge Ticehurst was the judge allocated to that particular case: which was described by the judge as a "complex and serious family case". Amongst other things, it involved allegations of abuse on the part of a stepfather of young stepchildren. I was told in the course of argument today that the children in fact had been taken into interim care. At that County Court hearing Judge Ticehurst listed a hearing for a 15-day fact-finding exercise before himself starting on 13th June 2005. There is evidence to show that had that hearing, particularly of that length, been sought to be placed before some other judge it could not have been heard before October 2005 at the earliest.

[13]The 13th June 2005 was, of course, the date listed for the commencement of the trial involving Mr Smith. On 29th April 2005 Judge Ticehurst gave an instruction to the Listing Office to put the Smith trial back by three weeks to 4th July 2005 but to hold off informing the parties until after a directions hearing which was due to take place on 16th May 2005 in the family case. In consequence of that, as is explained in a recent witness statement of the relevant listing officer, the listing officer made no attempt to look for any alternative judge or alternative court to handle the Smith criminal trial.

[14]On around 9th or 10th May 2005 a particular social worker, who as I gather was potentially going to be an important witness in the family case, failed to attend before His Honour Judge Ticehurst to give evidence. She attended the following day saying that she was suffering from depression and the judge then advised the County Court Listing Office that the finding of fact hearing scheduled for 13th June 2005 was in jeopardy. On 16th May Judge Ticehurst telephoned the Listing Office to say that T would in the event remain listed for 13th June 2005. On 17th May the Listing Office then informed the parties in Smith that the trial date had been put back, so far as that trial was concerned, to 4th July 2005. Their comments were not invited. This was the first that either prosecution or defence knew of the point. This was unwelcome news to the defence. Mr Tait told me that so far as prosecution were concerned this caused a degree of consternation, not least because leading counsel was indicating that if the matter were put back to 4th July leading counsel would not be able to do the trial. Mr Tait, however, did tell me today that his information also was at that time that the 13th June date may still possibly be capable of being kept to.

[15]On 27th May 2005 the local authority in the family proceedings applied for directions for the children to give evidence in the care proceedings, this again putting the finding of fact hearing in the family case of T in potential jeopardy. Indeed, there was a letter from leading counsel suggesting that the family hearing scheduled for 13th June 2005 should be adjourned, and perhaps adjourned until after the conclusion of the criminal trial which was pending against the stepfather in that particular case and which criminal trial, as I understand, was intended to be heard by Judge Ticehurst himself.

[16]On 3rd June 2005 there was a further directions hearing in the case of T. At that hearing His Honour Judge Ticehurst rejected the application for an adjournment of the trial date for T which was scheduled to start on 13th June 2005 and informed the Listing Office accordingly. That meant that at least by then there was no prospect at all of His Honour Judge Ticehurst being able to conduct the Smith trial for a starting date of 13th June 2005. The prosecution then applied again to extend the custody time limits. That application initially came before His Honour Judge Lambert but was adjourned by that judge to be heard by His Honour Judge Ticehurst: who heard the application on 10th June 2005, which was a Friday. As will be gathered, His Honour Judge Ticehurst acceded to the application to extend the custody time limits, he extending them to 5th July 2005; that is to say, the day after the scheduled commencement of the trial as revised to 4th July 2005.

[17]In consequence of all that an application was then made by counsel for the defence for a yet further adjournment of the trial date on the grounds that defence counsel were not available for 4th July 2005 and that it was important in a case of this kind that there be a continuity of representation. In the event there was a further adjournment of the scheduled trial date to 16th August 2005 with a concomitant extension of the custody time limits for that purpose. It was directed that the date of 4th July 2005 be retained for a mention hearing.

[18]The submissions which were made by Mr Harris, appearing on behalf of Mr Smith on 10th June and appearing on his behalf before me today, were, in effect, simple. He submitted that it would be quite wrong for the judge to extend custody time limits on 10th June 2005. The position then was that Mr Smith, having had no trial, would have been in custody by then for the best part of one year. Mr Harris's submission to the judge was, and remains, that no good and sufficient cause had been shown to justify the further extension now sought. In the event, and after quite a detailed debate in front of the judge, the judge ruled against Mr Harris's submissions and in favour of the prosecution's application.

[19]In the course of his detailed ruling the judge set out some of the background. The judge found, plainly correctly, that the Crown had acted with all due diligence and expedition in this case. That clearly is right and indeed the position that had arisen was absolutely of no making of the Crown. The judge went on to pose the next question as to whether there was good and sufficient reason for the application to extend the custody time limits. The judge then said this, at page 16 of the transcript:

"The basis of that application is effectively my unavailability. I was due to be the trial judge in this case and was allocated to be the trial judge in this case. It is fair to say that that is in all probability an administrative convenience. There are no particular pressing or other reasons why I should be the trial judge. There are no particular features of this case that demand a judge of any particular expertise or experience, so it seems to me."

The judge then went on to explain the position with regard to the family case of T, indicating that it involved serious allegations of rape and other sexual abuse of young children. The judge, having referred to that, then said this:

"In all those circumstances, having regard to the considerable delay that would arise in the family proceedings were the matter not to be dealt with, a decision was taken that the family case ought to take precedence over the case involving these defendants."

In a recent witness statement made by His Honour Judge Ticehurst on 28th June 2005 he makes clear that that decision was a decision taken by himself.

The judge then went on to say this:

"I recognise that that is an unfortunate occurrence so far as these defendants are concerned but it seems to me, having regard to the fact that delay is inimical to the requirements of the Children's Act and clearly further damage or harm may arise to these children, the view that I took was that it would be appropriate if at all possible for this matter, the current trial, to be postponed or adjourned or for an alternative judge to be available. Apparently enquiries have been made as to the availability of alternative judges or alternative courtrooms in another venue. Those are not available."

A little further on, at page 18 of the transcript, he said this:

"The reality of this application is that the prosecution say that it is a resources issue. There is no judge available."

Then referring to the argument of counsel he went on to say this:

"Whilst I understand the force of that argument, in the particular circumstances and having regard to the peculiar nature of the family case, I took the view that that ought in all the circumstances to take priority. Enquiries, as I say, were made to see if there was another judge available. No such judge nor courtroom was available. Although Mr Harris says that this is not a resources case, what he is effectively saying is that this was not a resources case in March when it was listed and a trial date fixed. Unfortunately, it now is a resources case. As I indicated to him during the course of his oral submissions, things change."

The judge then proceeded to indicate his conclusion that he was satisfied that in the particular circumstances of the case there was good and sufficient reason to extend the custody time limits.

[21]That ruling has been supplemented by recent witness statements put in on behalf of the respondents. One is a statement to which I have already alluded, that of His Honour Judge Ticehurst himself. The second is a witness statement of Miss Blackmoore, the relevant listing officer at Bristol Crown Court, also dated 28th June; and the third is a witness statement of Miss Coggin who is responsible for family listing in the Bristol County Court. The witness statements so put in are, in my view, of considerable significance. As I say, I do bear in mind that they have had to be put together in something of a hurry. The fact is that they are before me and I ought properly to have regard to them.

[22]So far as Miss Blackmoore is concerned, she set out the chronology in some detail. In paragraph 13 of her statement she then says this:

"On 29th April 2005 His Honour Judge Ticehurst telephoned me to tell me that he had just dealt with a family case, T, and that he had fixed the trial of this matter for 13th June 2005, time estimate three weeks. He instructed me to put the criminal trial of Smith back for three weeks to start on 4th July 2005. He informed me of potential problems in the family case of T which may mean that it would not start on 13th June 2005. The judge suggested that I did not inform the parties in the criminal case of the potential clash of trial date, ie 13th June 2005, until after the directions hearing on the family case of T, listed on 16th May 2005. Therefore, I did not attempt to find an alternative trial judge at this point which would be my normal practice. (14) On 16th May 2005 the judge telephoned me to inform me that the family case of T would remain listed for trial on 13th June 2005. On 17th May 2005 I informed the parties in the case of Smith that the trial date had been put back by three weeks to commence on 4th July 2005."

It seems to me that two particular points can and should be noted by reference to that witness statement. First, that Miss Blackmoore the listing officer, in the light of the instruction of Judge Ticehurst, after 29th April 2005 made no efforts to find some alternative trial judge to handle the Smith trial as otherwise, in accordance with her normal practice, she would. Secondly, I think it can safely be inferred that after 16th May 2005 again Miss Blackmoore made no attempt to find an alternative trial judge to deal with the Smith trial on the footing that it might start on 13th June just because she had been instructed by Judge Ticehurst to put the start date for that trial back to 4th July 2005.

[23]So far as Judge Ticehurst's statement is concerned, he also helpfully sets out some of the background chronology, including some detail of the serious allegations made in the family case of T. Judge Ticehurst recorded in his statement that in his view the welfare of the five children required the urgent disposal of their case. He then says this in paragraph 7:

"Accordingly I instructed the Listing Office that the trial of Smith should be postponed by three weeks from 13th June until 4th July 2005. I did so on the basis that it appeared highly likely at the time, given the absence of the social worker, that the T family case listed for 13th June 2005 may itself be adjourned and that the Smith case could remain in the list for the hearing on 13th June 2005."

Pausing there, that is, with respect, a somewhat confusing statement. But I think, as I think counsel before me essentially agree, that in effect what Judge Ticehurst was doing was indicating that the Smith trial should be listed now for 4th July 2005 but in effect not entirely vacating the prospect of that Smith trial being able after all to go ahead on 13th June 2005. After all, Judge Ticehurst clearly knew the T case well and he would have had a good feel, as things stood at that time, as to whether the T case would indeed be likely to go ahead on 13th June 2005.

[24]Judge Ticehurst then in his witness statement referred to the fact that on 3rd June 2005 it became apparent that any further delay in the T case would not be acceptable and therefore that the T trial needed to go ahead on 13th June 2005, as was the view of Judge Ticehurst. In paragraph 10 Judge Ticehurst says this:

"I regret that in doing so I neglected to give a careful and proper consideration to the fact that the custody time limits in Smith had been previously extended. I was, however, very mindful of the very real welfare considerations in the T case ..."

In paragraph 11 he said this:

"By 10th June, when it was known that the T family case was starting on 13th June, there was no alternative judge or venue for the Smith trial. I regret that I neglected to instruct the listing officer to seek such alternative resources before 3rd June 2005, but I was anticipating that the T family case was in all probability going to be adjourned from 13th June 2005. That it was not has given rise to this difficulty."

Those frank statements are most fair and most honourable on the part of the judge and they certainly do add a considerable amount of relevant detail to the background behind his ruling given on 10th June 2005. It may be noted that that witness statement confirms that he had not caused the Listing Office to be instructed to seek an alternative judge before 3rd June 2005. I should add that the evidence does not in fact explain what efforts, if any, were made after 3rd June 2005 to find some other judge to handle this three to four week trial if it was to start on 13th June.

[25]I was referred by counsel, helpfully, to a number of authorities, although I do not think it necessary for the purposes of this judgment to refer to all the ones which were cited to me. Mr Chamberlain referred me to the decision in R v Manchester Crown Court ex parte MacDonald

[1999] 1 WLR 841

, and in particular he drew my attention to the passage relating to the decision on one of the cases there involved, the case of Forbes, at pages 855 to 856. In the course of upholding the decision of

the judge below in his discretion to extend custody time limits, the court said this:

"We see no error of law in the conclusions reached by Judge Broderick on the material before him. No doubt with hindsight it is possible to identify further steps which might have been taken, but that does not mean that the judge erred in concluding as he did. We have no doubt that the judge was entitled to decide as he did. Notwithstanding the extent was substantial, he fully considered all the relevant factors."

Mr Chamberlain's particular point is that the fact that further steps might, at least in hindsight, been seen to have been capable of being taken did not necessarily vitiate a decision to extend custody time limits.

[26]I was also referred to the decision of the Divisional Court comprising Lord Woolf CJ, Rose LJ and Royce J in the case of R ex parte Gibson v The Crown Court at Winchester, of which I have already made brief mention

[2004] 1 WLR 1623

. In the course of his judgment Lord Woolf CJ, at paragraph 39, made further reference to the case of ex parte MacDonald which had been cited to the court. Lord Woolf then said this at 1635G:

"Clearly before a court is prepared to grant an extension because of the lack of availability of a courtroom or a particular judge required to try the case, it should go to considerable endeavours to avoid having to postpone the trial to a date beyond the custody time limits. However, it has to be remembered that the availability of a particular category of judge can be important to the achievement of justice in particular cases."

[27]Lord Woolf then went on to refer to the decision of the Divisional Court in R ex parte Bannister v Crown Court at Guildford

[2004] EWHC 221

Admin. That decision, if I may summarise it drastically, had in effect rather poured water on the notion that lack of resources might in itself be a good and sufficient cause for extending custody time limits at all events in a routine case. As to that Lord Woolf CJ at paragraph 31 in the Gibson decision said this:

"In respect of a routine case the approach which he [May LJ] indicates may generally be appropriate. In routine cases difficulties that arise can normally be overcome. However, I do not accept that it is right to regard May LJ's approach as indicating that the availability of resources where the courtroom's judges or other resources are an irrelevant consideration. The courts cannot ignore the fact that available resources are limited. They cannot ignore the fact that occasions will occur when pressures on the court will be more intense than they usually are. In such a situation it is important that the court and the parties strive to overcome any difficulties that occur. If they do not do so that may debar the court from extending custody time limits. It may well be that in Bannister further action could have been taken or action could have been taken earlier than was taken by the court to ensure that in that case a custody time limit was complied with. However, it is not correct what has been submitted before us that judges are entitled to ignore questions of the non-availability of resources."

It may also be noted that at paragraph 38 of his judgment Lord Wolfe referred to the fact that a matter such as granting extension of custody time limits required to be looked at with particular care and that if the matter came before a Divisional Court that court would scrutinise it rigorously. With respect, that must be right and not least because the liberty of the subject is involved in such cases.

[28]Mr Harris on behalf of the claimant acknowledges that the judge had a discretion. But his submission is that the decision here was wholly unreasonable and failed to have a proper regard to the background. At one stage in the course of argument it was in fact suggested that the problems that had arisen were of the judge's own making. Although I can understand why that was said, I do not think it altogether fairly represents the position: because the simple fact is that Judge Ticehurst had also to deal with a family case which clearly he found very troubling and clearly he thought required a disposition at the earliest possible moment. Indeed, it is common ground all round that Judge Ticehurst was trying to do his best by all parties concerned in all the various proceedings.

[29]Mr Harris goes on to submit that the chronology and circumstances, as amplified by the further witness statement of Judge Ticehurst himself and by Miss Blackmoore, indicates that this particular case simply had not involved the "considerable endeavours" required to avoid postponing the trial date beyond the then existing custody time limits. He draws attention further to the observation of Lord Woolf that it was important that in such circumstances the courts and the parties should strive to overcome any difficulties that occur. Moreover, Mr Harris stressed that in this case Mr Smith had been in custody for the best part of the year, a factor which does not seem to have featured in any significant way in at all in the judge's reasoning. Furthermore, Mr Harris stressed that this was now to be the third application for an extension of the custody time limits, again, a factor that does not seem to have featured in any significant way, if at all, in the judge's reasoning. Indeed, it is to be borne in mind that the judge himself in his witness statement candidly admitted that at the least on 3rd June 2005 he had neglected to give a careful and proper consideration to the fact that the custody time limits in Smith had been previously extended. I have to say that it is not obvious on the evidence that either on 29th April or on any of the relevant dates thereafter up to 3rd June Judge Ticehurst had borne in mind that a question of custody time limits so far as Smith was concerned was involved at all.

[30]Moving on from these submissions, Mr Harris made clear that he is not arguing for any general proposition that criminal proceedings take priority over family proceedings. Indeed, he accepts that there may well be circumstances where a particular family case is properly to be classified as urgent and requiring urgent disposition by a judge. But in effect his submission is that if it is desired to take a Family Division case in precedence to a criminal case where the criminal case involves the defendant in question being remanded in custody, then there may, without more, be a necessary price to pay: that price to pay being a refusal to extend custody time limits. Here, he submits, there was nothing "more" to justify such a step.

[31]Mr Harris further developed his submissions by saying, first, that the need for an extension here was borne, and borne solely, out of the unilateral decision of the court to move the criminal trial date. He submits that not only had the judge told the listing officer not to find any alternative judge on 29th April, but when the decision was communicated on 17th May it was presented as a fait accompli without giving any party, either prosecution or defence, the chance to comment, without giving any party the chance to say (before any decision such as had been pronounced was made) that there might be custody time limits issues, and without giving any party the chance to point out that to defer the trial date to July might in fact result in an even longer adjournment because of the non-availability of counsel.

[32]Mr Harris further submits that the explanation given at the time by the judge on 10th June 2005 did not in fact convey the full background which has only now, at least to a considerable extent, been revealed. Further, he submits that this was a case which had always been fixed for 13th June 2005 as long ago as March 2005. It was a three to four week trial and the trial judge had been allocated and counsel were available. Moreover, Mr Harris noted that even if at some stage a change was needed, the judge himself had found that the case did not require any particular category of judge or special facilities. Overall, he submitted that the prioritising of cases could not be simply to be termed "a resources issue" such as then to be used as to deprive Mr Smith of his liberty.

[33]Mr Chamberlain's submission, in essence, is this. The judge had the discretion to exercise. He knew the family case well and was well qualified in deciding that that family case had to be heard as it was on 13th June 2005. As matters then stood there was a lack of resources available to enable the trial of Mr Smith to go ahead also on 13th June 2005. Accordingly, he reached a decision by reference to the exercise of his discretion and applying the provisions of the statute in a way that was properly open to him, and that this court should respect that discretion and had no proper basis for interfering.

[34]I have come to the conclusion that this decision to extend custody time limits cannot stand. I say this for a number of reasons. First, this was, if not perhaps a wholly routine case of a kind of, say, a two to three day burglary trial or the like, a case not identified as having any particular complications or features requiring determination by Judge Ticehurst or by some limited category of judge or at some limited court venue. It seems to me that, in accordance with Gibson, if a trial date was to be moved in circumstances where a third application for custody time limits extension was needed it behoved those involved to go to considerable endeavours to avoid postponing the trial date beyond the current custody time limits and to strive to overcome any difficulties that might occur (see Gibson).

[35]In my view it is plain on the evidence that that was not done. It was not done precisely because of the decision of Judge Ticehurst to instruct the listing officer not to inform the parties of the position on 29th April. In consequence the listing officer did not make any attempts then to find an alternative trial judge. It surely is likely that, with the appropriate efforts, another judge at a large centre such as Bristol could have been found. Then on 17th May 2005 the unilateral decision taken by the judge to postpone the trial date was put to the parties. That, of course, carried with it the point that the listing officer again made no attempts to find an alternative judge to deal with the case on 13th June just because the listing officer had been told that the trial date would commence on 4th July 2005, unless perhaps Judge Ticehurst proved to be available on 13th June 2005 himself; which was no more than a prospect even if at the time thought to be not an insignificant prospect. Those features, I might add, find no reflection in the judge's reasoning in his ruling.

[36]Following on from that, it seems to me, with all respect to the judge, that it is not sufficient for him to say, as in effect he did as a fundamental part of his reasoning, that as matters then stood on 10th June 2005 the resources were such that no judge was available to deal with the Smith trial on 13th June. It seems to me necessary for the judge to address the question:

"Why were no resources available?"

It seems to me there is really only one answer to that. There were no resources available because no steps had been taken, in effect to find an alternative judge until, at the best, 3rd June 2005. Even if -- which does not appear on the evidence -- some steps were then taken it can be understood that by then it would have been too late. Had steps been taken, at least on a provisional basis, to line up some alternative judge from 29th April to deal with the Smith trial on 13th June (if Judge Ticehurst were not himself available) then there is every reason to think that with the appropriate amount of effort some other judge could have been found for that case which: as the judge himself accepted, did not call for any specific category of judge.

[37]It seems to me that those considerations alone are sufficient to indicate that the judge's ruling cannot stand. I have to say I do also find it troubling that it does not seem to feature in the judge's reasoning that Mr Smith had by now been in custody without trial for nearly a year and that this was the third custody time limits extension application: this last one, of course, being effectively forced upon the prosecution. It is to be noted that the judge, as I say, candidly accepted that he had not borne in mind that position previously on 3rd June; and it really does seem as though at all previous stages of his decisions with regard to timetabling, both of the family case of T and of this case, he had not really borne in mind the question of custody time limits. I do not think it just that, having then found himself in the position he did on 10th June, he then used the non-availability of other judges as at 10th June as a reason to extend the custody time limits into July (and in the event, because of the further adjournment necessitated, to August).

[38]For those reasons this decision, in my judgment, cannot stand. I respect, of course, the fact that this is a matter for the discretion of the judge. In my view, for the reasons I have given, he exercised his discretion on a basis which was not properly open to him in the circumstances. Accordingly, I quash the decision.

[39]I will hear counsel as to any further directions which may be needed or may follow in consequence.

[40]MR HARRIS: My Lord, the situation therefore -- and I am referring to Archbold paragraph 1270, page 117.

MR JUSTICE DAVIS: Yes.

[42]MR HARRIS: Custody time limits:

"Generally the defendant is entitled to be released on bail once the custody time limit and any extension thereto has expired. An order of the court is necessary to secure such release."

It goes on to say about the Divisional Court. My Lord, this case is listed back before His Honour Judge Ticehurst.

MR JUSTICE DAVIS: Strictly, do I sit as a Divisional Court?

[44]MR TAIT: My Lord, my understanding is that there is no difference in terms of jurisdiction between your Lordship as a judge of the Administrative Court and a judge of the Divisional Court.

MR JUSTICE DAVIS: So I can exercise Crown Court jurisdiction?

[46]MR CHAMBERLAIN: Those at the bar are agreed.

MR JUSTICE DAVIS: Does everyone agree I have jurisdiction to deal with this point?

[48]MR HARRIS: Yes, my Lord. The case is next listed on Monday 4th July. It is anticipated that a date for trial can be identified on Monday. I would invite your Lordship to order the release of Mr Smith -- it follows from your Lordship's judgment -- on bail with a duty to surrender to the Crown Court at Bristol on Monday 4th July.

[49]MR JUSTICE DAVIS: Can I tell you what I am minded to do. I am minded to order the release of Mr Smith on bail with the order he attend before the Crown Court, tomorrow preferably, before Judge Ticehurst. I think he should be before Judge Ticehurst at the soonest possible moment. I appreciate it may be uncomfortable but this requires to be dealt with earlier.

[50]MR HARRIS: My Lord, I agree. I am not quite sure where he is being detained. Dorchester, I am told. Not a million miles from Bristol. Then the question of bail can be addressed tomorrow morning. Or conditions, might I say.

[51]MR JUSTICE DAVIS: Mr Smith to attend for that purpose in person. That is an order of this court, by the way.

[52]MR HARRIS: My Lord, yes. Finally, the matter of costs. I understand that I am Legally Aided, as it were, to represent Mr Smith today. The normal position would be to seek costs from the defendant. I am not sure that is your Lordship's power because it is the Crown Court.

[53]MR JUSTICE DAVIS: It is very difficult. Firstly, it is the Crown Court and Mr Chamberlain has turned up simply to help employ the argument. I am minded to make a Legal Aid representation and say no order as to costs.

[54]MR HARRIS: I was going to invite your Lordship to that route anyway.

MR JUSTICE DAVIS: Mr Chamberlain has been here to assist the court.

[56]MR HARRIS: Can that Legal Aid be taxed in due course?

[57]MR JUSTICE DAVIS: The associate will put all the bits in. I will make the Legal Aid order which you need to make sure you get paid for today, including your preparation.

[58]MR CHAMBERLAIN: May I invite your Lordship to indicate a time, say 10.30 tomorrow morning to be sure?

[59]MR JUSTICE DAVIS: Yes, someone will have to ring the Bristol Crown Court immediately. It may be that Judge Ticehurst has another trial and would rather take this at 10. Could I say 10.15 and could someone ring the Bristol Crown Court immediately? If it is not Judge Ticehurst then some other judge, but I think it should come back before a Bristol Crown Court judge tomorrow. Clearly Judge Ticehurst would be the judge of choice. Anything else?

[60]MR HARRIS: My Lord, no.