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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kalonji v Wood Green Crown Court [2007] EWHC 2804 (Admin) (19 October 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/2804.html Cite as: [2007] EWHC 2804 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19 October 2007

1. LORD JUSTICE LATHAM: On 10 October 2007 this court, differently constituted, gave permission to this applicant to apply for judicial review of a decision of His Honour Judge Pawlak of 15 August 2007 whereby he extended the custody time limits applicable to this applicant in relation to his trial at the Wood Green Crown Court. The trial had by that time been fixed for 19 November 2007. The custody time limits expired on 17 August 2007. It follows that the extension that was envisaged by the judge was in the order of 13 weeks, he proposing to extend the time limit somewhat beyond the start of the trial itself.
2. The background to the trial is that this applicant, together with three others, had been indicted on an indictment charging robbery. The trial is estimated to last seven to ten days. The matter first came before the Wood Green Crown Court for a plea and case management hearing on 9 May 2007, on which date the trial date was fixed. Parenthetically, in the absence of this applicant who had not been produced, it is plain from the transcript of that hearing (which we have had opportunity to read) that the judge at that hearing had been made aware of the fact that the court could not accommodate this trial with the estimate that I have referred to before 19 November. The implication is that inquiries had been made to ensure that that was the earliest possible date upon which this trial could take place. There was a fully effective case management hearing on 23 May, but that did not take the story any further forward.
3. It was in those circumstances that the matter came before His Honour Judge Pawlak on 15 August 2007 when full argument was heard as to the extension of the custody time limit. The judge, in his ruling, said as follows:

"It is not suggested in this case that the prosecution have not acted with all due diligence and expedition.

The application is made in relation to the defendants Kalonji and Decosta, whose custody time limit expires on 16 August 2007, on the basis of some other and sufficient cause: that being the inability of the court to list this case for trial before 19 November. This case is not exceptional, but the circumstances in which the court and other courts find themselves are exceptional. Ten courts have been lost as a result of the closure of Middlesex Guildhall Crown Court. Another four are out of action due to the renovation works at Isleworth. This court is taking work from Highbury Magistrates' Court now, and at the present time the court is listing cases for trial in June and July of next year which, in ordinary circumstances, would be entirely unacceptable.

This case has been accelerated, not surprisingly, because the defendants are in custody. From experience of other cases, I would expect the list officer to have made appropriate enquiries of other courts; unfortunately, all other courts are in the same boat. I would ask that the list officer make further enquiries and report back to the parties within the next fortnight as to whether it's possible to find another court. However I have not the slightest doubt that if it were possible, the list officer would be only too pleased to move it away to another court and thereby clear the list a little bit in this particular case. It is an unfortunate situation, but it is an exceptional situation; and on that basis, with the caveat that the list officer be asked to fax or e-mail other courts, as she normally does, to make sure that there isn't someone who can take this case in the meantime, and to do that within two weeks and to report back to the parties, I find that there is good and sufficient cause for extending the custody time limit ..... "

4. It is submitted by Mr Field, on the applicant's behalf, in his very clear, concise and persuasive submissions to us that the judge - although correctly identifying what the problem was - was wrong, in effect, as a matter of law, to conclude that the circumstances which he described could properly justify an extension in the custody time limits. He reminds us of the wording of the section in question, namely Section 22 (3) of the Prosecution of Offences Act 1985:

"(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."

5. Mr Field relies on the proposition that this was a case without any undue difficulties, that the fact that it was a trial which would take seven to ten days did not put it in any special category and that essentially the only justification for the extension of the custody time limit was what can loosely be described as "listing difficulties". He relies, in particular, upon the approval by Lord Bingham in R v Manchester Crown Court ex p McDonald [1999] 1 WLR 841 of a passage in a judgment given by Mr Justice Toulson, who was at the time a presiding judge, in R v Blair (7 October 1998). The citation comes in pages 848 to 849 of Lord Bingham's judgment. The relevant passage is one which sets out, first, the circumstances of the particular case and then, having identified the fact that this was a problem frequently presenting itself to the courts on his circuit, as follows:

"I am wholly familiar with these problems as they presently affect this circuit. But in this case we have a case which is serious, but not of exceptional complexity. It can be tried by any circuit judge. It is not estimated to take more than three weeks at worst. Yet I am being asked to extend the 16-week time limit by an additional 17 weeks. If I reached that decision in this case on that ground it seems to me that it is virtually saying that in any case, regardless of what level of judge may try it, listing difficulties may be regarded as a just and sufficient cause for extending the statutory period by a very large margin indeed. I recoil from that, because it seems to me that to do so would indeed be to defeat the statutory purpose."

6. The listing difficulties to which he referred were that he was informed that there was no court or judge available to try the case at any earlier time.
7. Mr Field submits to us today that there is, in essence, no difference between the problem faced by Mr Justice Toulson in that case and the problems presented to the court in the present case. He submits that the justification given by the judge relates to difficulties created by the closure of the Middlesex Guildhall and other courts which have, undoubtedly, created administrative difficulties, but those were administrative difficulties which could and should have been foreseen, that appropriate steps could and should have been put in place to ensure that there was timeous disposal of cases, particularly those involving custody time limits, and that there is no good and proper reason given to justify the conclusion that this situation could be described in any way as exceptional so as to entitle the judge to take the view and the course that he did.
8. What has resulted from the closure of the courts, Mr Field says, is, in effect, systemic failure to be able to meet the custody time limits which is analogous to the position as presented to Mr Justice Toulson in the case with which he was then concerned.
9. The respondent submits that that is a simplistic approach to the undoubtedly difficult problem presented to the courts in relation to listing cases such as the present when particular difficulties have arisen, putting extra pressures on courts which have made it difficult for them, as is accepted, to meet custody time limits in a significant number of cases.
10. The submission by Mr Nicholls, on the defendant's behalf, is essentially based upon passages in the judgment of Lord Woolf in R (Gibson and another) v Crown Court at Winchester [2004] 1 WLR 1623. The particular passage to which we have been referred is at paragraph 31. Immediately prior to that paragraph it is right to note that the Lord Chief Justice cited from passages in Lord Justice May's judgment in R (Bannister) v The Crown Court at Guildford [2004] EWHC 221 in which he had essentially followed the approach of Mr Justice Toulson to which we have referred; in particular there was a passage in Lord Justice May's judgment as follows at paragraph 21:

"30 .....

'21 I have been unable to detect any particular fact referrable to this case which was capable of being a particular good and sufficient cause for extending the custody time limit. That leads to this stark conclusion: Parliament has set custody time limits for various obvious reasons. Parliament ultimately is also responsible for the provision of resources by way of judges, Recorders, courtrooms and staff, to enable cases to be heard within those custody time limits. Is it then, in a routine case, to be regarded as a good and sufficient cause for extending the custody time limit that it is impossible to hear the case earlier because the resources available to listing officers make it impossible?'"

Continuing:

" .....

'22 In my judgment, faced with that stark question, the answer has to be no, it is not a good and sufficient cause.'"

Returning to Gibson, Lord Woolf said:

"31 I fully understand most of the reasoning of May LJ in the passage to which I have referred. In respect of a routine case the approach which he 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, whether courtrooms, 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 courts 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 the custody time limit was complied with. However it is not correct, as has been submitted before us, that judges are entitled to ignore questions of the non-availability of resources. Mr Lofthouse said that if we lay down a test which avoids the availability of resources having to be taken into account the matters would be simpler to resolve for judges who have to deal with these issues. That may be true, but, unfortunately, judges at all levels have to deal with difficult issues. It is not appropriate to exclude relevant considerations just to achieve a simpler means of resolving the issue."

11. Mr Nicholls submits that that is the present guidance which this court should follow, and in particular Crown Court judges should follow, when dealing with such problems as that presented by this case. It follows, he submits, that resources must be considered and the particular reason for any listing difficulties analysed to see whether or not they can, nonetheless, despite what was said by Mr Justice Toulson with the approval of Lord Bingham, justify the extension of custody time limits. It is submitted that inherent in what Lord Woolf said in that passage is the recognition that there may be occasions when special pressures may arise, and the courts in those circumstances must be astute to determine whether or not it is indeed a special pressure which has resulted in the difficulties that arise, but, more important, to determine the extent to which those pressures are being alleviated and have the prospect of producing a real improvement so as to avoid the difficulties which confront the court in the particular case.
12. We have accordingly been taken, in affidavits submitted on behalf of the defendant, to what is said to be the full background to the problems identified in short form by the judge in the present case. It will be remembered that the judge identified, essentially, the closure of the Middlesex Guildhall and the loss of seven courts at that location as having produced pressures which had caused the difficulties which Wood Green Crown Court faced.
13. The background as disclosed to us is a bit more complex than that, although in one sense the judge's view can be described as a shorthand way of describing those more complex problems. There is no doubt from the material that we have had that the position in relation to the difficulties at Wood Green would appear to have commenced at a time when the proposals were being considered as to how to deal with the loss of the courtrooms to which we are referred. It should be added that although it was seven courtrooms at Middlesex Guildhall, a further three courtrooms were lost at Isleworth because of works necessary there.
14. As a consequence, a plan was put in place for re-distribution of what had been described as committal routes, the consequence of which was that in September 2006 Wood Green's committal area was extended by the addition of committals from the Highbury Magistrates' Court. That, according to the statistics which we have, has increased the workload at Wood Green Crown Court by 117 per cent. That was a conscious decision taken, it would appear, in the light of statistics available in 2005 and early 2006 that Wood Green Crown Court was being under-utilised in the sense that there was spare capacity and that was the justification for imposing on it the added workload. The expectation and the hope was that judicial capacity would remain as anticipated, which was a full-time complement of ten judges. That may or may not have been too optimistic a view at the time the original decisions were taken. It was undoubtedly far too optimistic a view in the light of what has happened because, by the time the changes in committal routes came into effect, Wood Green did not have a full complement of judges. The position has worsened. One judge has died; another judge has moved away.
15. The anticipated replacement of judges by further appointments has been delayed beyond that which was anticipated at the time. We are told that there is now some expectation that there will be two more judges by March 2008: one to arrive shortly, another in the Spring of 2008. That will still leave the court one short of its full complement.
16. The effect of those matters has been described in graphic form in the statement of Philip Joseph who is the court manager at Wood Green. In his statement he has set out the number of applications for extensions of custody time limits over a period from 2004 to August 2007. In 2004 there were 58 applications; in 2005 there were 87 applications; in 2006 there were 84 applications. In the eight months for 2007 there were 104 applications, a very substantial rise in the number of cases where custody time limits have had to be extended. It should be stated at this stage that those figures do not of themselves indicate that custody time limits have been extended in all those cases without there being good and proper cause. But it gives a flavour of the added pressures which have been imposed on Wood Green during the course of the past year or so.
17. Mr Nicholls' submission accordingly is that this case is one where the court has been confronted with the sort of greater pressure that Lord Woolf was referring to in Gibson. The present position is that the proposals are not simply to alleviate that pressure by the addition of the two judges but that there has now been a re-allocation of committals designed to take the pressure off Wood Green. It is hoped that by means of those two steps the present exceptional position can be not simply controlled but alleviated so there is a real prospect that the delays which have resulted in the present application can be avoided. It is therefore submitted that this is a case where it can be said that the defendant has taken the appropriate steps which Lord Woolf envisaged would have to be shown if custody time limits were to be extended in circumstances such as the present.
18. I have no doubt that this court should approach the matter in the way submitted by Mr Nicholls. It seems to me that paragraph 31 of Lord Woolf's judgment in Gibson provides a pragmatic and helpful approach to the difficult question that has to be answered by Crown Court judges when deciding whether or not the circumstances are such that it can be proper to extend custody time limits. In other words, where there are real pressures on a court which have been created by exceptional circumstances the court should be careful to examine what the reason is and the proposed solution to it and come to a judgment as to whether or not it can properly be said that the reason is one which is exceptional, on the one hand, and the steps that are proposed to alleviate it appear to have a prospect of success on the other. If the delays which are being experienced by a court are not being alleviated by any steps that are being taken, the judge may be forced to conclude that the position has become one where there is a systemic failure to be able to provide for trials within the custody time limits so that the position would be the same as or analogous to that in Blair where Mr Justice Toulson expressed himself as he did.
19. In the present case it seems to me that the judge was entitled to take the view that he did that there were exceptional circumstances here. We should only interfere with that conclusion if we conclude that he was clearly wrong, exercising our supervisory jurisdiction in the light, as we must, of the fact that the claimant's human rights are involved. But, as Lord Justice Rose said in Gibson, the primary decision is one for the Crown Court judge.
20. In my judgment, this judge considered the matter in a perfectly appropriate way for the circumstances which faced the judges at Wood Green and came to a conclusion which, in my judgment, cannot be impugned.
21. I would, accordingly, dismiss this application.
22. MR JUSTICE SIMON: We have been referred to a number of cases, including R v Manchester Crown Court ex p McDonald [1999] 2 WLR 841 and R (Gibson and another) v Crown Court at Winchester [2004] 1 WLR 1623. These throw light on the approach which a judge should adopt when applying the provisions of Section 22 (3) of the Prosecution of Offenders Act 1985, as amended, and establish a number of propositions which are relevant to the present application:

(1) A remand in custody involves a balancing of the interests of the public and of the defendant, who is presumed not to be guilty. Custody time limits exist as part of the protection of defendants for whom there is no redress if, at the end of the day, they are found not guilty (see the judgment of Mr Justice Toulson in R v Blair (unreported) referred to in the judgment of Lord Bingham CJ in McDonald, pages 848 to 849).

(2) In any application to extend time limits in circumstances such as presently before the court it is for the prosecution to satisfy the court, on the balance of probabilities, that the two statutory conditions of Section 22 (3), which are set out in (a) (iii) and (b), are met. In other words, that the need for an extension is due to "good and sufficient reason" and "that the prosecution has acted with all due diligence and expedition".

(3) In making that judgment, the court will have in mind that one of the three "overriding purposes" of the legislation is to ensure that the periods for which unconvicted defendants are held in custody are as short as reasonably and practically possible.

(4) In special cases, and on appropriate facts, the unavailability of a suitable courtroom or a suitable judge within the maximum period may amount to a good and sufficient reason for extending time limits (see Lord Bingham in McDonald at page 848).

(5) In any application based on unavailability of a courtroom or judge, the judge should "examine the circumstances rigorously to determine whether the cause is also 'sufficient' for any extension and, if so, for the length of extension" (see the judgment of Lord Justice Auld in R v Central Criminal Court Ex p Abu-Wardeh [1998] 1 WLR 1083, 1090).

(6) The absence of a courtroom or judge should not be too readily accepted as good and sufficient reason to extend time limits since that would subvert the purpose of the statutory provisions which are designed for the protection of the liberty of citizens. An example where reasons may be compelling is a case of murder which may require a High Court judge to preside or a case requiring a court with a secure dock which may not be available as promptly as other courts.

(7) The unavailability of appropriate courts or judges is unlikely to provide a good reason for extending custody time limits in a "routine case" (see the judgment of this court in R (Bannister) v Crown Court at Guildford [2004] EWHC 221 Admin).

(8) Nevertheless "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" (see Gibson paragraph 31).

(9) Where the court under review has heard full argument and given its ruling, this court will be most reluctant to disturb that decision (see McDonald at page 850).

23. In this case it is clear from the defendant's evidence that London has suffered for a number of months from a shortage of available courts and judges. The shortage of courts is due to the closure of Middlesex Crown Court in March 2007 and the loss of seven courtrooms, as well as the loss of courts at Isleworth.
24. In addition, and more significantly in the present context, there has been a shortage of judges due to delays in appointing new judges in the South East. According to Mr Pogson's witness statement at paragraph 9, in April 2007 London had 19 Circuit Bench vacancies and it currently has 23. Three of these vacancies are at Wood Green which should have ten judges. When new appointments are made, two will be assigned to Wood Green. One of these will be made shortly. The delay is said to be due to the judicial appointments process taking longer than anticipated.
25. As far as Wood Green is concerned, there is also an additional burden of work due to the change in the committal path from Highbury Corner Magistrates' Court in response to the closure of Middlesex Crown Court. Before September 2006 these cases went to Snaresbrook Crown Court. It seems to me that there is force in the submission that there has been and is presently a significant deficiency in the provision of courts and the availability of judges that affects parts of London.
26. The evidence shows that the Regional Director and staff are doing all they can to alleviate the problems which occur, within the constraints in which they find themselves; and that the present difficulties will not be of long duration.
27. That is not the end of the matter because the court is bound to look rigorously at the circumstances to determine whether the cause is good and sufficient and, if so, the length of extension. In relation to this point, the evidence of Mr Joseph, the court manager at Wood Green, is that the court is fully aware of the problem and of the need to abide by custody time limits. The need to extend custody time limits is not habitual; and extensions are not given as a matter of course. As one would expect, each case is considered by the judge carefully on its merits.
28. In the circumstances I have concluded that this court should be reluctant to disturb a decision based on full argument and which found that these were exceptional circumstances due to the pressures on the court being more intense than they usually are, and that consequently there was good and sufficient reason for the extension. In my judgment, the judge was entitled to form the view that it was appropriate in the circumstances to extend custody time limits. For this reason, as well as those set out by my Lord, I, too, would dismiss the application.
29. MR FIELD: Could I make an application? It is to do with a point of law of general public importance. I put it this way. Could I submit, as a result of this rule and this case, it is evident that the system has certainly failed Mr Kalonji? It may be of little comfort to him to know that that system failure, brought about as we have heard to do with re-allocation of work and so on, is being addressed so others in the future will not be in the unfortunate position he finds himself in. So from his point of view, I submit, there has been system failure.
30. I submit that this court's ruling today is the first ruling to have visited the paragraph that has been cited from Lord Woolf, and (a) to have interpreted it and (b) applied it. So I submit this is an important case and may be put into case law.
31. Could I further submit that the first thing that this judgment does is to interpret Lord Woolf's words as meaning that the steps taken - - "In such a situation it is important that the courts and the parties strive to overcome the difficulties that occur" - I submit that is capable of interpretation of being case-sensitive so in any given case a trawl should be made in court. For example, the interpretation placed by this judgment, I submit, is that that applies systemically. So that if a party is taking long-term steps that will address the problem in the future in another case, this court has held that that particular "saving" provision, if I can call it that, applies. That is something that may be open to argument.
32. In any event, it is clear that this is the first case I am aware of that has found that a routine case requiring a routine judge in a situation where the executive has brought about a lack of facilities can be held to be good and sufficient cause. What I invite the court to certify as a question for consideration of the House of Lords is - "if the executive as a result of conscious decision places an intolerable burden on a particular court or group of courts" - and I note His Honour Judge Pawlak says that in the sense of a trawl around London all courts are in the same boat, so there is no suggestion that there has been only Middlesex Guildhall and Isleworth. My submission is this that the executive place an intolerable burden on a court or group of courts and it is the executive, in the from of the CPS, who ask for custody, an extension of custody time limit. I submit that is a very important question. Can the executive inflict a wound on itself, as it was categorised in the discussion, and nevertheless expect that wound to be suffered by the particular claimant? It is Mr Kalonji who suffers the wound.
33. LORD JUSTICE LATHAM: You are repeating yourself. We have your point. Thank you, Mr Field. We think it is a case here simply of applying the principles in Gibson.
34. MR FIELD: Could I have a costs determination, publicly funded costs?
35. LORD JUSTICE LATHAM: Whatever is necessary you shall have.
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