Thomas v Central Criminal Court [2006] EWHC 2138 (Admin)

Case No CO/5063/2006Case No CO/5324/2006[2006] EWHC 2138 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 7 July 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE LAWS
MR JUSTICE WALKER
Between
THOMASClaimant-v-
Between
CENTRAL CRIMINAL COURTDefendantSTUBBSClaimant-v-CENTRAL CRIMINAL COURT(DEFENDANT)
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 RAJIV MENON appeared for Claimant ThomasMR MICHAEL CONNING appeared for Claimant StubbsMR MARK WILLIAMS appeared for Interested Party WebsterMISS S WHITEHOUSE appeared for Interested Party the Crown Prosecution Service
J U D G M E N T
[1]MR JUSTICE WALKER: This is an application for judicial review of a decision by His Honour Judge Paget QC, sitting at the Central Criminal Court, on 16 June 2006 in criminal proceedings against three defendants. They were Stefon Thomas ("Thomas"), Marlon Stubbs ("Stubbs") and Sanjay Webster ("Webster"). Where the three of them are referred to together I shall refer to them as "the defendants". By that decision, His Honour Judge Paget QC extended custody time limits from 19 June to 11 September 2006. Under Section 22 (3) of the Prosecution of Offences Act 1985 those time limits could only be extended if the judge was satisfied both(a) that the need for the extension is due to some good and sufficient cause, and(b) that the prosecution had acted with all due diligence and expedition. It is said by the defendants that the judge erred in law or was unreasonable.[2]The formal way in which the matter comes before the court is that on 22 June 2006 Mr Justice Silber gave permission to Thomas to apply for judicial review in CO/5063/06. On 29 June 2006 Mr Justice McCombe gave permission to Stubbs in CO/5324/06 to apply for judicial review. Mr Justice McCombe also had before him an application in relation to Webster as regards participation in Thomas's judicial review, and directed that Webster be joined as interested party to CO/5063/06. History of events[3]On 10 October 2005 Jermaine and Marlon Crooks were confronted by a group of males and shots were fired at them. It is said that this group of males included Stubbs.[4]On 16 October 2005 Stefon Thomas was charged in relation to this incident with two counts of attempted murder and one firearms offence. He was also charged with six further firearms offences in relation to a D-32 Double Derringer pistol and ammunition found near the place where he was arrested. On 3 November 2005 Webster and Stubbs were stopped in a vehicle. Stubbs was charged with two counts of attempted murder and one firearms offence in relation to the incident on 10 October. He was also charged with three firearms offences in relation to a 0.44 inch calibre black powder percussion revolver found loaded behind the driver's seat of the vehicle. Webster was not charged in relation to the 10 October incident, nor was he involved on 16 October, but he was charged with three firearms offences in relation to the 0.44 inch calibre revolver. All three defendants were held in custody from the time of charge. By March 2006 all three defendants were the subject of a single joint indictment at the Central Criminal Court. At a plea and case management hearing on 24 March 2006 a trial date of 12 June 2006 was fixed. This went beyond relevant custody time limits. On 31 March 2006 that court extended the custody time limits until 19 June 2006.[5]The Crown was ordered to serve cell site reports or raw data in relation to two categories of mobile phone evidence. The first concerned telephone calls by Stubbs to one of the victims on the day of the shooting. The second concerned information about the phone of Thomas, this having been seized on his arrest. Raw material was due to be served on 7 April but was not served until 28 April 2006. By 23 May 2006 no cell site report had been served identifying those aspects of cell site evidence to be relied upon.[6]On 23 May 2006 the defendants applied to break the fixture. This application was refused when the Crown indicated that the relevant report would be served by 31 May 2006. However on 25 May 2006 the police were informed by FTS (an independent company) which had been instructed to analyse the raw cell site data that it would be impossible to complete the report by 31 May. This was because 3G, the telephone company concerned with the phone of Stubbs, had supplied data which had contained wrong information. In those circumstances the court, on 5 June 2006, broke the existing fixture and re-fixed the trial for September 2006.[7]A hearing before Judge Paget on 13 June 2006 to consider extension of custody time limits beyond 19 June 2006 was adjourned for full information to be supplied. The adjourned hearing resumed on Friday 16 June 2006. By this time the judge had a detailed history of events in relation to the investigation of the telephone evidence. He also had a statement from Detective Sergeant Sweeney, the designated officer in the case, referring to a total of 11 phones seized in the course of the inquiry. Detective Sergeant Sweeney stated that from the date of the shooting in this case onwards his unit of 20 detectives had investigated a further 55 non-fatal shootings. He also explained the procedure under which authorisation was sought for various stages of inquiries into telephone evidence. A chronology of the investigation into telephone evidence in this case accompanied Detective Sergeant Sweeney's statement. For present purposes I shall set that out in table form: 2005 10 October - Shooting incident. Stubbs' telephone called victim: police in possession of number 16 October - Thomas arrested with telephone DRW/1 24 October - Thomas' telephone DRW/1 submitted to OTSU 26 October - Cell site raw data requested for Stubbs' telephone from TIU. 3 November - Stubbs arrested Billing subscriber and telephone data for Stubbs' telephone received from TIU 8 November - Stubbs' telephone submitted to OTSU for downloads OTSU reminded that the Thomas report is required 25 November - Request to TIU for subscriber and number details re. Thomas 2006 31 January TIU send subscriber and number details re. Thomas. 10 February Cell site analysis requested from TIU re. Thomas 16 February TIU decline application re. Thomas (technical defect on form) 21 March Role of officer in case is taken over by DSM Sweeney 24 March Statement request form sent to TIU by OIC requesting billing and subscriber data for Stubbs' & Thomas' telephones to be exhibited Cell site & call data requested from TIU re. Thomas. TIU ref 29382 Raw cell site data for Stubbs' telephone examined by OIC 4 April Billing data received for Thomas' telephone from TIU 24 April Report submitted to Commander Sawyer for authorisation to obtain refined cell site analysis for both telephones 28 April Raw data and statements producing billing for both telephones served on defence solicitors 2 May Meeting at FTS. FTS agree deadline of 31 May to submit refined report for both telephones 25 May FTS inform police that the data received from 3G telephone company (re. Stubbs' telephone) is wrong 9 June FTS report served.[8]When extending the time limit on 16 June 2006 the judge noted that counsel for the prosecution had accepted that there were two periods prior to 31 March 2006 when there was inaction after submission of material from other agencies. These were 25 November 2005 to 31 January 2006 and 16 February 2006 to 24 March 2006. That said, however, the judge said he had to look at the chronology as a whole, bearing in mind the amount of material that was required and the difficulties that there undoubtedly were because of the pressures on the various agencies to supply this material in a large number of cases. He concluded that there was good and sufficient cause to extend the custody time limit in the case of each of the defendants. Applying the test in R v Manchester Crown Court ex p McDonald [1999] 1 WLR 841, that "all due expedition" required that which would be shown by a competent prosecutor, conscious of his duty to bring the case to trial as quickly and fairly as possible, in the round, that criterion had been met. Submissions in this court[9]Mr Menon, on behalf of Thomas, referred to a review of relevant principles by this court in R (on application of Gibson v Crown Court at Winchester [2004] 1 WLR 1623. He submitted that this and other cases established a two-stage test. The first stage was for the court to consider whether the prosecution had acted with all due expedition and diligence. If so, then the requirement of paragraph (b) of Section 23 (3) was met. If not, however, the court must go on to consider whether the prosecution's failure was the root cause of the need to seek an extension. Mr Menon submitted that the admitted periods of inaction on the part of the prosecution were the root cause of the need to seek an extension. The judge, he said, had applied the wrong test. First, Mr Menon referred to a period of delay from 16 October to 25 November, 40 days when he said nothing had happened. Second, from 25 November 2005 to 31 January 2006, as can be seen from the chronology, there was a period of 67 days. Third, there was a period from 16 February to 24 March when there was inactivity for 38 days. In oral argument Mr Menon suggested that there was a further period of 24 March to 24 April in which nothing was done. However this was not relied on when these proceedings were commenced, nor was it relied on before the judge. In those circumstances I say no more about it.[10]In response to questions from the court as to whether complaint should have been made earlier about the periods of inaction, in particular by opposing the application to extend that was made and granted by consent on 31 March 2006, Mr Menon said that this issue was not live on 31 March 2006. Thomas did not need to oppose that earlier extension. It had simply extended custody for the period needed to obtain the earliest trial fixture that could be given by the court. Mr Menon added that as a matter of statutory construction there was no limitation in Section 22 (3) (b). He accepted that there was such a limitation in the opening words of paragraph (a). These state "that the need for the extension is due to ..... " before setting out the relevant reasons. Mr Menon accepted that paragraph (a) thus focuses on either the initial extension or a further extension as the case may be. However he did not accept the same approach to paragraph (b). If it had been Parliament's intention to adopt the same approach to paragraph (b), he submitted that Parliament would have inserted the same starting words as are found in paragraph (a).[11]On the facts, Mr Menon concluded by addressing the position when the initial extension was sought. At that time, on the information available to the defence, there was no reason to think that the prosecution would not produce telephone evidence as directed on 31 March. Thus the root cause of the delay giving rise to the need for further extension was indeed the dilatory behaviour from the outset.[12]Mr Conning, on behalf of Stubbs, confirmed that the extension on 31 March had been unopposed because it reflected the fact that time was being extended up to the earliest available trial date. On 31 March the absence of cell site reports had been canvassed. There was concern in that regard. Mr Conning submitted that the relevant period of delay in the case of Stubbs was a period running from 3 November 2005 to 24 March 2006, a period when the requests that had been made by officers involved were requests concerning text messages and the like. As to delay, he submitted that the root cause was not the slip-up on the part of 3G; that was simply the first external problem that had arisen and it was disastrous as a result of earlier internal failures.[13]Mr Williams, on behalf of Webster, pointed out that his client was not affected by telephone evidence. If, on 31 March, he had had the information now available then there would have been a contested hearing as to whether the extension should be granted.[14]On behalf of the Crown Prosecution Service as interested party, Miss Whitehouse contended that as a matter of construction paragraph (b) of Section 22 (3) had the same focus as paragraph (a). She accepted however that even so, delay prior to an earlier extension might in certain circumstances be relied upon by a defendant if it were the root cause of a need to seek a further extension. If that were the case, then it would be open to such a defendant to assert that the requirement of Section 22 (3) (b) had not been met.[15]Miss Whitehouse turned to whether there had been due diligence and expedition, and if not whether the inaction prior to 31 March in this case was the root cause of the need to seek a further extension. She said that but for 3G's failure, the prosecution would have cleared the hurdle. The investigation had been planned to a certain timetable and the prosecution had met the timetable. The preparations were on track. In her submission officers should be allowed to plan for an existing timetable and should not be expected to foresee unexpected difficulties.[16]In reply, it was suggested by Mr Menon that it could not be right that 3G were responsible for the Crown not clearing the hurdle. The raw data had been sent to the prosecution expert on 4 May. Only on 25 May did that expert advise of the problem. The result was that the report due on 31 May 2006 could not be completed until 9 June 2006. Thus the delay was only nine days. He accepted however that when the defendants applied to break the fixture of 23 May the court did not think that a report on 31 May would necessarily be too late for the 12 June fixture. Analysis[17]The principles governing applications for judicial review in cases of this kind are now well established. In that regard, the court will bear particularly in mind the remarks of Lord Woolf CJ and Lord Justice Rose Vice-President of the Court of Appeal (Criminal Division) in Gibson at paragraphs 38 and 47 to 48. At paragraph 38 Lord Woolf CJ said:
"The issue as to intensity of review 38 The third issue to which I should refer is that which deals with intensity of review. Mr Perry drew attention to the fact that in his submissions he had not relied on the Wednesbury principle. In my judgment it was correct that he should adopt that approach. This case involves the human rights of the claimants. In those circumstances it is only right that the court which originally considers the question of granting an extension should look at the matter with particular care, as the authorities indicate. Equally, when the matter comes before us we must scrutinise it rigorously, but at the same time recognising that the decision is for the judge in the court below to make. Unless we come to the conclusion that he has wrongly exercised his discretion we will not interfere."
At paragraphs 47 to 48

Lord Justice Rose said:

"47 Furthermore, in cases where custody time limits are in question, judicial review may disrupt the trial process and lead to satellite litigation, contributing to delay, which is the very feature of criminal litigation which the custody time limits are intended to help minimise. 48 In R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 371 Lord Steyn said: 'The effect of the judgment of the Divisional Court was to open the door too widely to delay in the conduct of criminal proceedings. Such satellite litigation should rarely be permitted in our criminal justice system.' 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: see per Lord Bingham CJ in R v Manchester Crown Court, Ex p McDonald [1999] 1 WLR 841, 850H, already cited at para 17, subject to the need, as Lord Woolf CJ has said, for rigorous scrutiny by the Crown Court judge before custody time limits are extended."
[18]We have not heard or been taken to any case which decides the question which has arisen here as to the temporal focus of Section 22 (3) (b). It is convenient to set out Section 22 (3) at this stage:
"(3) 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 shall not do so unless it is satisfied - (a) that the need for the extension is due to - (i) the illness or absence of the accused, a necessary witness, a judge or a magistrate; (ii) a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more accused or two or more offences; or (iii) some other good and sufficient cause; and (b) that the prosecution has acted with all due diligence and expedition."
Paragraph (a) refers to "the extension". In context, where what is sought is a further extension the words "the extension" plainly refer to that further extension. That was accepted by Mr Menon and it plainly makes good sense.[19]When considering whether there has been illness or absence, whether there has been an ordering of separate trials or whether there has been some other good and sufficient cause the court is plainly required to focus upon the matter which is in hand, namely the particular extension which the court is being requested to grant. Here we are concerned with paragraph (b). Is the court under that paragraph to focus on due diligence and expedition in relation to the matters which give rise to the need for a further extension, thus mirroring paragraph (a)? Or is the court to conduct a general review of overall delay, including matters which were the cause of earlier extensions? As pointed out in Gibson, the two paragraphs work in tandem. As a matter of the ordinary use of language, I would infer that in a case involving a further extension the two paragraphs have the same focus. They are concerned with two aspects of the circumstances giving rise to the need for the further extension. I shall refer to this approach as the natural construction of Section 22 (3).[20]Mr Menon suggested that in order to achieve such an intention Parliament would have inserted the words found at the start of paragraph (a) at the start of paragraph (b). The first problem with that submission is that as a matter of language it simply does not work. The two paragraphs are looking at different aspects of the relevant circumstances, hence the opening words of paragraph (a). Secondly, and more importantly, the interests of justice do not require the approach which Mr Menon suggests. Where a further extension is sought, it is in the public interest and the interests of justice that the court should confine its consideration under paragraph (b) to whether there has been due diligence and expedition in relation to matters giving rise to the need for the further extension. In a case where the defendant says that partucular matters amounted to a lack of expedition or diligence and - I stress "and" - it appears that these matters were the root cause of an application for an earlier extension, it seems to me that the question whether there was a lack of due diligence and expedition in that regard is a matter properly to be considered by the court at the hearing of that earlier application. If there has been some legal error by the court in its approach to that application, then in an appropriate case that can be remedied by invoking the principles set out in Gibson. Accordingly I see no injustice in the natural construction of Section 22 (3). Such a construction accords with legal certainty, the principle that parties should know where they stand. It would be wrong to countenance an approach under which a party can, on a later application, seek to impugn as legally flawed a decision taken in relation to an earlier extension.[21]However as Miss Whitehouse accepts, this does not mean that delay prior to an earlier extension can never be relied upon. When one looks at the circumstances pertaining to the initial extension it is, in my view, clear that the root cause of the need to seek that extension was the court's inability to give an earlier trial date. Such inaction or delay as may have occurred on the part of the prosecution in relation to the telephone evidence was neither relied upon by any party as the root cause of the need to seek that extension, nor was it in fact the root cause of that need.[22]This analysis of the history leads me to conclude that in the present case the application for a further extension was rightly foucsed on the correct question. This question was whether looking at the circumstances as a whole the delay on the part of the prosecution consitutes a lack of due diligence and expedition. Judge Paget examined the course of events and concluded that he accepted the submissions of Miss Whitehouse. He considered that the prosecution would have cleared the hurdle if it had not been for the inaccurate information supplied by 3G. He had regard to the amount of material required and to the difficulties that undoubtedly existed because of the pressure on various agencies to supply this material in a large number of cases. He was in a far better position than this court to make that assessment. The conclusion that he reached was that the test of all due diligence and expedition had been met. Argument in this court has involved a more refined analysis in which it has been possible to examine rather more detailed concepts in relation to what may or may not be a root cause of delay. It does not seem to me however that the analysis that has been the subject of argument in this court makes any material difference to the reasoning of the judge. He had before him a full account of what had occurred.[23]Applying the approach in Gibson, I find it difficult to conclude that there is any such legal error on his part or any such troubling feature in relation to his decision as would lead to the conclusion that his decision cannot survive scrutiny. I accept the submissions of Miss Whitehouse that the prosecution is entitled to work to an existing timetable. The question for us is not whether we would have reached the same conclusion as Judge Paget, it is whether that conclusion is open to challenge on the grounds identified in Gibson.[24]In relation to the further point raised by Mr Menon concerning the question whether 3G were in fact responsible for the Crown not clearing the hurdle, I observe only this: that matter was the subject of separate examination by the court on the application to break the fixture on 23 May. The judge sitting at the Central Criminal Court on that occasion was in a far better position than we are in this court to form a view about whether a report provided on 31 May would be too late for a 12 June fixture. The judge concluded that such a report would not be too late. It follows that if 3G had supplied accurate material, and the expert had produced the report on 31 May, then the trial would have been able to go ahead. In those circumstances it seems to me it is not possible for the defendant to rely upon that particular point. Conclusion[25]For all these reasons I conclude that for my part this application for judicial review cannot succeed.

LORD JUSTICE LAWS: I agree that this application must be refused for the reasons given by my Lord. The natural construction of Section 22 (3) of the Prosecution of Offences Act 1985, as it has been described by my Lord, is, in my judgment, commended by force of the provision's words as well as by consideration of justice and also, as my Lord has said, by the virtue of legal certainty.

[27]MR MENON: As my Lord observed, this issue of temporal focus of Section 22 (3) (b) has not been considered before. Consequently I apply for my Lords to certify the following point of law as being one of general public importance.

LORD JUSTICE LAWS: Have you written it out?

[29]MR MENON: I have written it out, but I have not a typed copy for my Lords. I did not anticipate until oral argument this morning that this would be the focus of the judicial review.

LORD JUSTICE LAWS: Read it out and we will see where we get to.

[31]MR MENON:
"If a defendant is unaware that the prosecution has failed to act with all due diligence and expedition, therefore does not oppose an application to extend the custody time limits, should a judge considering a subsequent application to extend the custody time limits only take into account the prosecution's conduct since the last extension was granted in deciding whether the prosecution has acted with all due diligence and expedition?"

LORD JUSTICE LAWS: I do not think the question so formulated captures what we have decided. The basis of my Lord's reasoning, with which I have agreed, is independent of any awareness or unawareness by the defendant of any earlier delay; and so far as taking into account as far as delay is concerned we have accepted that earlier delay might have regard to if, in truth, it is a root cause for the need for the later application. As drafted, the question is, as it seems to me, speaking for myself, quite inapt for those two reasons.

[33]MR MENON: If my Lord's judgment is in effect that whatever the proper statutory interpretation of Section 22 (3) (b) is, the root cause for the extension of custody time limits on 16 June had nothing to do with the earlier delay and was to do with 3G and that nine-day period would have fallen away, then I have to concede that there is no point of law that can be the subject of an appeal; if it is limited to that. But if, at the end of the day - - - - -

LORD JUSTICE LAWS: I do not think my Lord's judgment should be discussed on the basis of a hypothesis, if this or if that. His reasoning was, if I may say so, entirely plain.

[35]MR JUSTICE WALKER: If it helps you Mr Menon, the approach that I have taken as I perceived it is one in which I have not shut you out from relying on the earlier periods of delay. On that footing, I have looked at His Honour Judge Paget's judgment which looks at all the periods and I have concluded that your clients have not satisfied the test set out in Gibson on that basis.[36]MR MENON: I am grateful for the clarification. I do not see how I can ask for a point of law to be certified. I do not know if there is application in respect of costs by the CPS.

LORD JUSTICE LAWS: We will see if anyone else has an application.

[38]MISS WIHTEHOUSE: No.

LORD JUSTICE LAWS: There is no application.

[40]MR MENON: I ask for the usual order that the claimant's costs be the subject of detailed assessment for the purpose of public funding?

LORD JUSTICE LAWS: Yes. In principle, I am sure that is fine. But we wonder why the defendants, if I can call them that, should not have been represented by the same counsel for the purpose of this application. I am not speaking of the criminal trial.

[42]MR WILLIAMS: Mr Webster's position is slightly different from the other defendants. He did not feature in the telephone aspect. As such, there may have been some different arguments as to him.

LORD JUSTICE LAWS: But not inconsistent arguments.

[44]MR WILLIAMS: No.

LORD JUSTICE LAWS: What about the other defendants?

[46]MR MENON: Mr Conning sent a message to my Lords before the lunch hour. He is not here now.

LORD JUSTICE LAWS: You are holding his brief, are you?

[48]MR MENON: Yes, I am. I am in a difficult position here. The chronology of this is that Miss Curtis has made the initial claim and then others who were part of the criminal proceedings submitted their own claims. I would say that in Mr Conning's defence, if I can put it that way, he was entitled to do that and public funding was granted for that purpose. I think he is entitled in those circumstances to the same detailed assessment that I am.

LORD JUSTICE LAWS: You are each asking for detailed assessment for the purposes of the Legal Services Commission.

[50]MR MENON: Yes.[51]MR WILLIAMS: Yes.

LORD JUSTICE LAWS: My Lord is reminding me that the case was called into the list very quickly and that there may have been problems sorting out different representations. In those circumstances we will grant the separate orders for detailed assessment in each case.

[53]MR MENON: Thank you. ---

Cited in 1 later judgment