COVID-19 & Custody Time Limits: An Update
The refusal of HHJ Raynor at Woolwich Crown Court to extend the custody time limit in two unrelated cases has been widely reported. An application to extend the custody time limit in a third case was heard by Mrs Justice Whipple, although HHJ Raynor had previously had conduct of the case.
The first three defendants did not object to the extension. The fourth defendant, referred to in Whipple J’s judgment as “P”, resisted the application, and applied for Whipple J to recuse herself on grounds of apparent bias.
In relation to bias, it was agreed that the test was that set down in Porter v Magill  UKHL 67,  2 AC 357:
…whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.
The defence submitted, boldly, that there was an “inevitable” inference of apparent bias and that there had been a change of judge because the senior judiciary was unhappy with HHJ Raynor’s previous decisions and was “forum-shopping” to avoid any further in the same vein. They argued that the appearance of bias further arose from Whipple J’s position as a Presiding Judge as she was, or might be seen to be, a judge in her own cause, as the Presiders were to some degree culpable in a failure to take reasonable steps to ensure that P could be tried within the CTLs.
The prosecution resisted the application and Whipple J refused it. She noted that cases and applications are frequently swapped around between judges and that no litigant has a right to any particular judge. There was nothing untoward about allocating the application, which was unusual in that it was for a third CTL extension, to a senior judge, particularly bearing in mind the potential for the case to be of wider interest. Allocating the hearing to a Presiding Judge with knowledge of the recovery programme was sensible and not a conflict of interests. Nonetheless, the responsibility for running the courts belongs to HMCTS and not the judiciary, and Whipple J was not a judge in her own cause.
Extension of custody time limits
The test for extending CTLs is provided by section 22(3) of the Prosecution of Offences Act 1985:
- Has the prosecution acted with all due diligence and expedition?
- Is the need for the extension due to some other good and sufficient cause?
- If so, ought the court to exercise its discretion to extend the time limit?
The prosecution had, in Whipple J’s judgment, acted with all due diligence and expedition. The matters in issue in the application were whether there was some good and sufficient cause, and, if so, whether the court ought to exercise its discretion to extend.
The prosecution submitted that there was good and sufficient cause to extend the CTLs and Whipple J ought to exercise her discretion to do so; the trial had been postponed owing to a global health emergency and HMCTS had taken proportionate and reasonable measures to cope with the initial emergency before restarting jury trials within the social distancing rules. It was submitted that there was no systemic failure and the balance of fairness lied in favour of extending the CTLs.
On behalf of P, it was not accepted that there was good and sufficient cause for extending the CTLs a third time; P had been in custody for over a year already and, if the CTLs were extended, would spend a total of 16.5 months awaiting trial, which would be unreasonable. It was submitted that the delay was caused by the lack of money allocated by Parliament to provide sufficient space for trials and the delays in bringing cases to trial would not be alleviated by the steps that were being taken by HMCTS. In summary, what was being done was too little, too late; there was a systemic problem and HMCTS had failed under its obligations under domestic and Convention law.
As to the scarcity of resources, Whipple J cited the relevant guidance in R v Kalonji v Wood Green Court  EWHC 2804 (Admin). Per Latham LJ at paragraph 18:
…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.
Whipple J held that “the pandemic has undoubtedly placed real pressures on all Crown Courts. Its existence is an exceptional circumstance”. She was satisfied that the planned steps to alleviate that pressure “have a prospect of success” and recognised that building up trial capacity in the Crown Courts “is a complicated exercise, being undertaken at speed and on a large scale”. She was not persuaded, on the evidence before her, that there was a systemic failure in HMCTS’ response.
In granting the Crown’s application, Whipple J stated that “The reason P’s trial cannot be heard before January 2021 is the existence of the global pandemic. The global pandemic is, in my judgment, a good and sufficient cause to extend CTLs”. She was further satisfied that she should exercise her discretion; accordingly, the CTLs were extended until 15 January 2021.
Finally, Whipple J indicted that if there was any further application to extend CTLs in the case, it ought to be made on notice to HMCTS to give them a fair opportunity to respond to any criticism.
This and other recent CTL decisions may be the subject of consideration by the upper courts in the coming weeks. There was some interesting but unresolved discussion during the oral argument as to whether HMCTS ought to be invited to participate in CTL applications in the current climate in order to counter criticism and submit evidence, and if so whether it was for the prosecution or defence to arrange. It remains to be seen whether this will become a feature of future applications.
Sarah Przybylska and Neelam Gomersall