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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 >> Gorgachiev v Southwark Crown Court [2007] EWHC 3230 (Admin) (11 December 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/3230.html Cite as: [2007] EWHC 3230 (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
		11th December 2007

1. LORD JUSTICE DYSON: This is an application for permission to apply for judicial review of the decision of His Honour Judge Testar at Southwark Crown Court on 12th September 2007 to extend the custody time limit in respect of the claimant's case until 14th January 2008. We have decided to give permission to apply.
2. The facts are these. The claimant is a Russian national. On 6th April 2005 he pleaded guilty to one offence of attempting to re-enter the United Kingdom using a false instrument. He was sentenced to 12 months' imprisonment. On 23rd August 2006, directions for administrative removal were served on the claimant and he was transferred to the custody of the Immigration and Nationality Directorate. On 28th August 2006 he was placed in immigration detention at Campsfield House Detention Centre. On 15th September he was transferred to Harmondsworth Immigration Removal Centre pending administrative removal. His administrative removal was finally set to take place on 15th December 2006.
3. On 28th and 29th November there was a large scale disturbance at Harmondsworth Immigration Removal Centre. On 30th November the claimant was arrested on suspicion of violent disorder arising out of that disturbance. On 15th March 2007, three days before he was due to be removed, the claimant was charged with conspiracy to cause criminal damage and remanded in custody. His custody time limit was due to expire on 13th September 2007.
4. On 8th June 2007 he appeared before His Honour Judge Higgins at Southwark Crown Court for a plea and case management hearing. On that date further counts of conspiring to commit violent disorder and of committing criminal damage were added to the indictment. The claimant denies all the charges against him. At the hearing it was established that a four week trial would need to be fixed. The transcript of the hearing records that counsel for the Crown said that he had spoken to the List Office. The following exchange between counsel and the judge took place:

"MR PATTERSON: It means a fixture, and it may be as much as four weeks. I have spoken to the List Office already. There is nothing available before the custody time limits expire in September. January would be the appropriate date, subject to the custody time limits, but given that there is nothing available my invitation to the court would be to fix it for that date and in due course the Crown will have to make applications to extend.

JUDGE HIGGINS: Yes, so be it. What was the date? I am going to check it anyway because occasionally something is lost in translation -- I hesitate to use that expression.

MR PATTERSON: No, no absolutely. I should say that the List Officer was keen, if possible, to find an available date before the limits expire but nothing was available."

5. On 16th November this year the list officer, Mr Yallop, made a statement in which he says this:

"(3) The provisional January trial date was given in June in a PCMH. I cannot be certain but I think that that date, as opposed to an earlier date in 2007, was given because parties had said they would not be ready before 2008. It is certainly my (and my predecessors') practice to only give dates outside CTL on that basis. If parties had wanted an earlier date they would have been given it. I have never fixed outside of CTLs without a very good reason and clear indications that there are no objections to defendants remaining in custody. The note I have in my listing diary, written back in June, says 'Provisional date -- CTL to be extended', so I am sure that if the time limit had not been extended they would have been given an earlier date . . .

(5) In June, when the trial was provisionally fixed, we were 'over-fixed' for the entire period before the CTL, so I would have shown reluctance to fixing the case in September. It is that concern which would have prompted me to start asking questions of counsel about when the case would be likely to be ready. The practice of the List Office when fixing any custody case is to ask counsel and/or the judge for the estimated length of trial and the date of CTL expiry. If the case is of a reasonable length (say four weeks and over) and the CTL is going to expire in a period when the court is already heavily over-fixed the parties are asked whether the case would, realistically, be ready by the time of the CTL expiry. If the answer is no, the next question would be whether the defence have any objection to listing the trial outside of the CTL, on the first date it can be fully trial ready. If the answer is again no, the next stage is that the case is given a provisional trial date, on the first date that counsel think it will be ready. Should any objection be raised to the CTL extension, then the case will be fixed within CTLs causing the breaking of bail cases, whether it is likely that the trial will be ready or not.

(6) To the best of my recollection a conversation along these lines took place at the List Office public counter on the day of the PCMH in June. I remember because of the rarity in which cases are fixed outside of the CTL. If any objection had been raised by the defence the court would have given an earlier date. The fact that I had left notes for myself both in a diary and on the computer to remind myself that the date was provisional further suggests to me that I had this conversation.

(7) A note made on 11th June 2007 (the first working day after the PCMH hearing on 8th June 2007) on the court's CREST system shows that the court intended to list the case on 20th July for CTL extension. If an objection had been raised at this hearing to listing the trial outside the CTL this would have provided sufficient time for the matter to be listed within the CTL . . . "

6. The transcript of the proceedings on 8th June shows that the judge was not told of any of this material. The judge, therefore, provisionally fixed the trial for 7th January 2008 for four weeks. A further hearing in the case was listed by the court for 20th July 2007. This hearing was listed as an application to extend the CTL. However, no application to do so was made by the CPS. Further directions were given by the court. Mr Yallop said this at paragraph 8 of his statement:

"At the hearing in July it became further apparent that it was unlikely a trial would be ready before the CTL expired. There was evidence that required Russian software which could not have been prepared before the beginning of September."

7. As I said, the judge gave further directions. These included that additional statements, exhibits and a schedule of CCTV evidence was to be served by 27th July. The CCTV evidence itself was to be served by 31st August and a fitness to plead hearing in respect of a co-defendant which was fixed for 3rd August was vacated due to problems that those acting for that defendant had had in arranging an assessment by the psychiatrist.
8. I turn to the hearing before the judge on 12th September 2007. Neither of the counsel who appeared on this occasion for the Crown and the claimant had appeared on 8th June. Counsel for the Crown based the application for an extension of the CTL on the fact that the court could not accommodate the case earlier than 7th January 2008. Counsel for the claimant submitted to the judge that there were no special features requiring particular court facilities or a specific judge, nor were the pressures on the court more intense than usual such as might justify an extension of the CTL. The judge said that he had spoken to the List Office but what he was "really interested in was whether anyone actually raised an objection" on the 8th June to the 7th January 2008 date (see page 139F).
9. The judge elicited from defence counsel that there had been no objection to the 7th January 2008 date at the hearing on 8th June. He was told by Mr Ray who appeared for the Crown that that date had been fixed by agreement, although it was suggested on behalf of the claimant that this might have been no more than a resignation to the List Office proposal. The judge was also told that counsel for the Crown had gone to the List Office on 8th June "and determined that that [7th January 2008] was the earliest possible date". That seems to be confirmed by what the judge himself said he had been told by the List Office, which appears at page 140F in the bundle:

"He tells me that to have fixed a four week trial for January was really to barge this case into the list, and in the ordinary course of events in June he would have been fixing a four week case in April 2008, not January 2008 . . . .

The prospects of getting a four week trial before 13th September, on 8th June, were absolutely nil, as I am sure you would recognise."

Then a little later the judge said at 142B:

" . . . it does seem to me, if one looks at all the circumstances of this case, that there is good and sufficient cause for extending the custody time limits, and I understand that nobody criticises the Crown for any want of diligence."

He then proceeded to grant an extension until 14th January.

10. It can be seen that the judge's reasons are sparse to say the least. A reference to "all the circumstances" is not a sufficient indication of his reasons. I shall return to what his reasons were or might have been later in this judgment. First, however, I need to set the statutory scene.
11. Section 22(1) of the Prosecution of Offences Act 1985 empowers the Secretary of State to make provision as to the maximum period for which an accused person may be held in custody. The time limit in the case of the claimant is 182 days. The only way in which his detention could have continued lawfully beyond the 182 day period was by application of section 22(3) of the 1985 Act which provides that:

"The appropriate court may, at any time before the expiry of the 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."

12. There have been many decisions of the court on the question whether there is a good and sufficient cause for extending the custody time limit. I do not find it useful to mention all the decisions to which reference has been made in the skeleton arguments that have been placed before us. A good starting point is what Lord Bingham LCJ said in R v Manchester Crown Court ex parte MacDonald [1999] 1 WLR 841, at 847H:

"While it is possible to rule that some matters, such as those we have just mentioned, are incapable in law of amounting to good and sufficient cause for granting an extension, there is an almost infinite variety of matters which may, depending on the facts of a particular case, be capable of amounting to good and sufficient cause. It is neither possible nor desirable to attempt to define what may or may not amount to good and sufficient cause in any given case, and it would be facile to propose any test which would be applicable in all cases. All must depend on the judgment of the court called upon to make a decision, which will be made on the peculiar facts and circumstances of the case in question, always having regard to the over-riding purposes to which we have made reference above.

The courts have held, although reluctantly, that the unavailability of a suitable judge or a suitable courtroom within the maximum period specified in the regulations may, in special cases and on appropriate facts, amount to good and sufficient cause for granting an extension of the custody time limits . . . "

Lord Bingham at page 850 H said this:

"We would, however, emphasise that where a court has heard full argument and given its ruling, whether for or against an extension, this court will be most reluctant to disturb that decision. This court has no role whatever in deciding whether, in any case, an extension should be granted or not. Its only role, as in any other application for judicial review, is to see whether the decision in question is open to successful challenge on any of the familiar grounds which support an application for judicial review."

13. It is clear that ordinary listing pressures suffered day in, day out by courts cannot be a good and sufficient cause. In the context of listing difficulties there must be some particular feature to constitute a good and sufficient cause: see, for example, R (on the application of Bannister) v Crown Court at Guildford [2004] EWHC 221.
14. I can now come to the submissions of Miss Marcus. In her skeleton argument she summarised the reasons why the judge's to extend custody time limits was flawed as follows:

(a) Lack of availability of a judge or court can only constitute a good and sufficient reason to refuse to extend a CTL in exceptional circumstances.

(b) The judge failed to carry out the necessary inquiry into the circumstances of the case to determine whether they were indeed exceptional.

(c) The judge took into account the immaterial consideration that no objection had been made to the 7th January 2008 date.

As will become clear, the third of these reasons was qualified by counsel in her oral argument.

15. Miss Marcus submits that the material available to the judge on 12th September, including what he was told about the earlier hearings, did not reveal anything exceptional about this case such as would justify extending the CTL. According to the transcript of the 12th September hearing, the enquiries he made of the List Office revealed no more than that the court could not accommodate the case before 7th January 2008. That date was "the earliest possible date" (see transcript page 139E). This suggests that the reason why the court could not accommodate the case any earlier was because the court did not have the resources to do so. Moreover, such an understanding was consistent with what Judge Higgins was told by counsel on 8th June, although it is fair to point out that Judge Higgins said that he would check the matter anyway "because occasionally something is lost in translation".
16. Miss Marcus accepts that the failure of a defendant to object to the fixing of a date for trial later than the expiry of the CTL can be a relevant factor to be taken into account on an application to extend the CTL. But, she submits, it is not relevant unless there is evidence which shows that, if the objection had been made, there was a possibility that the trial date would have been fixed to start on a date before the expiry of the CTL. She also submits that the decision of 12th September was flawed because the judge did not consider the possibility of fixing the trial to start on a date between 13th September 2007 and 7th January 2008, ie, a shorter extension of the CTL than he in fact granted.
17. It is necessary to revert to the reasons for the judge's decision. The judge said that he took into account all the circumstances. The only clue as to what these were is to be found in the transcript of the argument between himself and counsel, and the written material that was placed before him. That material included the parties' skeleton arguments. It also included the chronology which is to be found at page 111 of the bundle. This, it seems to me, is an important document. It includes the following items:

"(6) 8th June PCMH. Further counts added to indictment. Issue of fitness to plead raised by Al-Rutaimi. All other D's plead not guilty to all counts. Trial fixed for 7th January 2008. Crown ordered to serve additional evidence by 20th July; primary disclosure by 22nd June; bad character/hearsay applications by 29th June.

(7) Primary disclosure served on 25th June. See letter of that date from A Connell as to reason for late service.

(8) Bad character/hearsay applications served on 2nd July, one working day after the deadline.

(9) 20th July. Crown apply to extend the period of time for service of CCTV evidence. Granted by the court. Court orders that additional statements, exhibits and a schedule of CCTV evidence be served by 27th July. CCTV evidence itself to be served by 31st August. A fitness to plead hearing for Al-Rutaimi, fixed for 3rd August, is vacated due to problems that defence solicitors have in arranging a psychiatric assessment . . .

(11) CCTV material served in DVD format on 30th August.

(12) Those representing Al-Rutaimi continue to suffer problems in arranging a psychiatrist to examine him. Crown suggest that the psychiatrist that they have instructed sees him first. Appointment arranged for 7th September.

(13) Further disclosure to be made prior to hearing on 12th September."

18. Thus, it seems to me that the judge knew that this was a heavy case. He knew that it had an estimate of four weeks. He knew that the CCTV material was served on 30th August. There was to be further disclosure before 12th September (it is not clear whether that had been made) and that the fitness for trial issue of the co-defendant had not been resolved. In this regard it is of some relevance that the indictment included an allegation of conspiracy. We have moreover been told that shortly before 25th November 2007 the claimant served a list of disclosure requests dated 7th September. Although this was not before the judge on 12th September, it is consistent with the weight and complexity of the case. It is true that the judge was not told in terms what Mr Yallop said in his statement, namely that the parties had agreed that the case could not be ready for trial until January, but he knew or ought to have known that the case could not in fact have been ready earlier than 7th January. It is significant that Miss Marcus has not suggested that the case could have been ready any earlier. It is also important to note that it is not said that the prosecution had not acted with all due diligence and expedition.
19. In my view, therefore, it is to be assumed that one of the circumstances that the judge took into account was that at all material times between 8th June and 12th September the case could not have been ready for trial earlier than 7th January 2008 or thereabouts. The other circumstance that the judge undoubtedly did take into account was the fact that the claimant did not object to the 7th January date when it was provisionally fixed on 8th June or at any time thereafter. Lest there be any doubt about it, this was a factor which, in my judgment, the judge was plainly entitled to take into account in deciding whether there was a good and sufficient cause to extend the custody time limit. As was said in the Manchester case, there is an almost infinite variety of matters which may amount to a good and sufficient cause to extend the CTL. Which matters are relevant will depend on the judgment of the court called upon to make the decision.
20. The broadly worded provision in section 22(3) of the 1985 Act, "good and sufficient cause", does not preclude consideration of a failure by the defence to object to a trial date. If a case is listed with the agreement of the defence for a date beyond the CTL on the basis that the parties, without any fault by the Crown, will not be ready earlier, it is obvious this can constitute a good reason for extending the CTL. The facts of the present case as we know them to be from Mr Yallop's statement, which is not disputed, show that, if there had been objection on 8th June 2007 to the 7th January 2008 date, the List Office would have arranged for the trial to start within the custody time limit. The result would have been that the claimant would have remained in custody until the start of his trial.
21. It is right to say, as Miss Marcus points out, that the sole reason given by the Crown in support of the application for an extension of the CTL was that the court could not accommodate the case before 7th January. But it is clear that the judge did not, or at least not principally, base his decision on that. The principal point that he took into account was the fact that there had been no objection to the date on 8th June. He was entitled to do so. It is also reasonable to infer that he must have taken into account the fact that the case was complex and had been case managed on the basis that the parties would need until the end of 2007 to be ready for trial. He was entitled to take that into account too.
22. For these reasons, I would dismiss this application for judicial review of the decision of 12th September to extend the custody time limit. Even if I had been persuaded by Miss Marcus that the circumstances on which I consider the judge relied did not justify his decision, I would have refused in the exercise of my discretion to grant the claimant any relief. I acknowledge of course that this is a case which concerns the liberty of a subject. But the material before us includes the statement of Mr Yallop. From this it is clear that the only reason that this case was not listed to start on a date before the expiry of the custody time limit is that it was agreed by both sides that it was not possible for the parties to be ready before that date. In my judgment, if on 12th September the judge had been given this information, it is difficult to see how he could have come to any conclusion other than that the need for an extension was due to "some other good and sufficient cause". That seems to me to be a powerful reason for refusing relief in this case. On the hypothesis that I am considering, the judge would have reached the right conclusion, although it was not one that was reasonably open to him on the facts as he understood them to be. I emphasise that there has been no allegation against the Crown for failure to act with diligence and expedition. For these reasons, I would refuse this application for judicial review.
23. MR JUSTICE JACK: I agree.
24. LORD JUSTICE DYSON: Any applications?
25. MR SQUIRES: My Lord, we make an application for costs. I do not know whether the claimant is Legally Aided. That may depend on the terms of the order.
26. MISS MARCUS: My Lord, there is some confusion about whether or not the claimant is Legally Aided. I think a certificate was sent to the court. We do not yet know if that is to be revoked or discharged. My understanding is that myself and my instructing solicitor are acting pro bono at the moment. The situation is yet to be determined. I think it would be detailed assessment under section --
27. LORD JUSTICE DYSON: Well, there is an application for costs against your client, as I understand it. I am not sure what you are saying should be done in relation to that application. Are you saying it should be adjourned until the Legal Aid position becomes clear?
28. MISS MARCUS: It may be that that is the most sensible course. The claimant has no funds of his own.
29. LORD JUSTICE DYSON: What do you say about that?
30. MR SQUIRES: This may be academic, but it may be that the matter will need to be adjourned to determine whether it is not to be enforced without leave of the court, or not if he receives public funds.
31. LORD JUSTICE DYSON: I am worried that everything seems to be so much in the air and uncertain at the moment. I wonder whether the right thing to do is simply not to make any order for costs at the moment but adjourn the question of costs. I do not want everybody to come back to make further oral application. What I would like to do if this possible, subject to my Lord, would be simply to adjourn the question of costs. If there is to be any application, I think it should be made within a time limit, which I will have to specify, and that it should all be dealt with on paper. That would include a detailed assessment. That would only arise, I think, detailed assessment of the claimant's costs, if Legal Aid were forthcoming.

(Pause)

32. My Lord is suggesting that since it is very likely to be highly academic, all this, given who the claimant is and where he is going to go -- he is either going to be convicted and go to prison or he is going to be deported from this country -- that there really is little point in making an order for costs against him. Are you pressing it?
33. MR SQUIRES: My Lord, we will not press it.
34. LORD JUSTICE DYSON: There is something to be said for finality, really.
35. MR SQUIRES: My Lord, I accept that.
36. LORD JUSTICE DYSON: I think we will make no order for costs. As far as Legal Aid is concerned, is this something that is awaiting a decision by the Legal Services Commission or what?
37. MISS MARCUS: My Lord, firstly, I do not want to mislead the court. It was rejected because originally it appeared that he had some funds from earlier compensation proceedings. It was for that reason. I do not want to mislead the court. The question of the claimant's funds is still uncertain.
38. LORD JUSTICE DYSON: He has some funds from compensation? Can you tell us about that?
39. MISS MARCUS: I mentioned it briefly during my submissions. There was an action brought by those who instruct me, a habeas corpus application, which, once the decision to charge Mr Gorgachiev was taken, transmitted into a claim for unlawful imprisonment. That was settled by the Secretary of State who accepted that he had no right to hold him. The claimant received some compensation for that. The question was whether or not he could continue to receive Legal Aid and how much for, holding that compensation. It is simply because I do not want to mislead the court.
40. MR JUSTICE JACK: What was the amount of the compensation?
41. MISS MARCUS: It was £7,000 or £8,000. The question is we do not yet know the status, whether it will be revoked or discharged retroactively.
42. LORD JUSTICE DYSON: So the reason for the uncertainty of the Legal Aid is because of the compensation?
43. MISS MARCUS: My Lord, yes. The question is whether those funds are available or not.
44. MR JUSTICE JACK: Well, he has not had much opportunity to spend it.
45. MISS MARCUS: No. I do not want to deceive my learned friend or the court.
46. LORD JUSTICE DYSON: So what are you saying we should do?
47. MISS MARCUS: Simply that if the defendant is minded to press for costs, I think that it is a matter which should be adjourned until the Legal Aid situation is determined, because at the moment we just do not know, unfortunately. It is a matter for the court. The claimant is due to be deported.
48. MR SQUIRES: We just have one other possible situation: to make an order for the claimant to pay the costs not to be enforced without leave of the court.
49. LORD JUSTICE DYSON: That is the very suggestion I was putting to my Lord. I think that is the right answer. They should have their costs but not to be enforced without an order of the court. That reserves the position but if Legal Aid is withdrawn because of this compensation, then they may decide to seek to enforce it or they may decide it is not worth it, but at least we have made a decision. Thank you all very much.