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Neutral Citation Number [2007] EWHC 2885 (Admin)
CO/9832/2007, CO/9658/2007


Royal Courts of Justice
London WC2A 2LL
19 November 2007

B e f o r e


(4) SERHAT SIMSEK Claimants


Computer-Aided Transcript of the Stenograph Notes of
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Mr N Wells (instructed by Keppe & Partners) appeared on behalf of Claimant (1)
Mr P Corrigan (instructed by Pattichi, Hill & Croques) appeared on behalf of Claimant (2)
Mr M Huseyin (instructed by Criminal Defence Solicitors) appeared on behalf of Claimant (3)
Mr I Wheatley (instructed by Joseph Hill & Co) appeared on behalf of Claimant (4)
Mr C Sheldon (instructed by CPS) appeared on behalf of the Defendant


Crown Copyright ©

LORD JUSTICE THOMAS There is before the court an application for permission to bring judicial review of a decision made by HHJ Lyons at the Crown Court at Wood Green on 3 October 2007, when he extended custody time limits. The application was referred to the court by the single judge.

The applicants were all arrested on 2 April 2007. All but one of them have been detained in custody since that date. They were charged with offences of attempting to cause grievous bodily harm and fire arms offences. The case proceeded rapidly to the Crown Court, and the PCMH took place on 22 June 2007. On that occasion various directions were made for the conduct of the proceedings, and a date was fixed for 18 February 2008 with a time estimate of two to three weeks. It was clear at that stage that custody time limits would expire long before that date, but we were told that that issue was not dealt with at the hearing.

Amongst the orders made were various orders, as one would expect, for the disclosure of documents, and in particular the making available of evidence in relation to mobile phones. Some of that should have been made available, we were told, by 20 July 2007, but nothing was done. The relevance of that will become apparent in a moment.

Custody time limits were extended by consent at the end of September to enable an orderly hearing to take place, and that took place on 3 October. We do not have a transcript of the hearing in front of us, but we do have a transcript of the judge's judgment. We were told, but we have no evidence of this, that the listing officer for Wood Green was called, and he stated that no enquiries had been made as to whether the case could be transferred to another court, and no explanation had been given as to why that transfer could not take place.

In his judgment on 3 October, in which he extended custody time limits, Judge Lyons said

"Criticism has been made … that at that very time, that is when efforts to move this case to another court should have been started. That is something I have to consider. However, given within the London Group, as we have heard, there are many cases outside the custody time limits and all Courts are in similar situations, it is quite impossible for … the 10 or 11 List Officers [involved] to continually cross-question each other, possibly 50 times a week, in the group, on individual cases that are set in those 10 or 11 Court buildings outside the custody time limits."
The judge took into account in his judgment the position in relation to the situation in London, and the specific matter to which have I have referred in deciding to extend custody time limits until after the date fixed for hearing.

An application for judicial review was made promptly after that decision, and when it came for consideration before the single judge, one of the issues that was raised with him was that the court had offered an earlier date, namely 5 November. We have this morning been provided with details of what happened on 23 October when that date was offered.

It appears that, shortly before 23 October, the listing officer at Wood Green informed the parties that the case might be able to be fixed at short notice on 5 November, and to that end there was a mention hearing. At the hearing, it appears that counsel for the prosecution made it clear that they would not have a cell site analysis available at the time. There were other matters they had to deal with, and Judge Lyons asked counsel for the defence what their position was. It appears from the transcript that they all took the position that, in the circumstances, they would like to adhere to the date of 18 February 2008.

Today the application has been brought before us on the basis that the decision made by Judge Lyons on 3 October was unlawful. At the outset of the hearing today, we provided counsel with a transcript of the decision of this court, given by Latham LJ on 19 October 2007 in relation to Kalonji, a case involving the extension of custody time limits at this very Crown Court where the extension had been made in August of 2007. In that judgment, Latham LJ set out the position in London, and considered at some length the reasons why a judge's decision in August 2007 to extend custody time limits was within the discretion open to him under the relevant legislation and the decisions of the courts on that legislation. We therefore asked counsel why it was that this case was different. The principal submission made was that the judge in this case had not, in contradistinction to Judge Pawlak in the other case, ordered specific enquiries to be made as to whether the case could be listed in another court. It seems to me that that is not a material distinction. It is clear from the way Judge Lyons approached this case that he had well in mind the difficulties that exist across London at present, and that he could not, in the circumstances, expect listing officers constantly to see if cases could be moved. It seems to me that that decision of his was well within his discretion, and does not, in my view, distinguish the case from the recent review of the matters carried out by Latham LJ Kalonji.

It also seems to me, however, that the fact that a further date was offered on 23 October or 5 November would not, if there had been a distinguishing factor, have really made any difference. This court is concerned with the lawfulness of the decision on 3 October. Obviously if another date had become available and the court was considering whether it should exercise its discretion to grant judicial review, it would take into account the subsequent position. However, a court would have to be very cautious in relation to that, as it is well-known that if a date is set for a long time in advance (as appears to have been the position in this case) those instructed in the case prepare it on the assumption that the date will be the distant one and do not prepare it on the assumption that the date would be an earlier one.

Although this is not a case which, in my view, is in any sense distinguishable from the decision in Kalonji, there are three observations that it is pertinent to make.

First, it would be worthy of consideration by the presiding judges of the circuit as to whether they should make specific directions to re-emphasise to those involved in cases where dates are set a long time in advance that they must comply with the timetable set out. The reason for that would be that if a timetable is set and not complied with, as happened in this case, it is not possible to take advantage of an earlier date if one becomes available.

Secondly, I have pointed to the fact that no consideration appears to have been given in relation to custody time limits when the date was fixed on 22 June 2007. There are obvious issues that need more detailed consideration as to whether any issue as to custody time limits should be grappled with at the stage of the fixing of the date when it is clear that the date would be well outside any custody time limits. Rather than attempt to do this in a short judgment, given without argument, it again seems to me that this is something that the presiding judges of the circuit might like to consider giving guidance on in the light of the present difficulties in London.

The third observation is that it seems to me that the decision in Kalonji, where this court reviewed everything literally only a month or so ago, ought to govern the position now and for the immediate future. However, it is clear that if the situation does not change, then this court would plainly reconsider whether it was appropriate for applications to be brought. That is something that, in my view, ought to be drawn to the attention of those responsible for the provision of resources within the area of London, and those senior to them at the Ministry who are also responsible. The fact that this application is refused does not mean that it would not be appropriate for the court to reconsider matters in the New Year if there is no improvement in the position.

For those reasons, therefore, I would decline this application.


MR HUSEYIN My Lords, may we have assessment of the Legal Services Commission's costs?

LORD JUSTICE THOMAS Yes, of course. Thank you all very much indeed.

Link http//www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2007/2885.html

Posted : 21/08/2009 1:33 am