Extension of custody time limits - prosecution's lack of due diligence and expedition not fatal to extension - lack of judicial resources relevant consideration

R (Gibson and another) v Crown Court at Winchester: QBD (Lord Woolf Chief Justice, Lord Justice Rose and Mr Justice Royce): 24 February 2004

In May 2003 the claimants were charged with murder and remanded in custody.

In November 2003 the prosecution applied to extend their custody time limits until June 2004, when the trial was set to start, pursuant to section 22(3) of the Prosecution of Offences Act 1985 (as amended by section 71 of the Criminal Procedure and Investigations Act 1996 and section 43 of the Crime and Disorder Act 1998).

The judge found that the prosecution had, to a limited extent, failed to act with all due diligence and expedition but that, since that had had no effect whatsoever on the ability of either side to meet the trial date, the unavailability of a High Court judge and a courtroom until June 2004 was a good and sufficient cause for extending the time limits.

The claimants sought judicial review.

John Lofthouse (instructed by Peach Grey & Co, Southampton) and James Leonard (instructed by Sharman & Co, Southampton) for the claimants; Anthony Hacking QC (instructed by Crown Prosecution Service, Eastleigh) for the Crown Prosecution Service as an interested party; David Perry (instructed by the Treasury Solicitor) for the Department of Constitutional Affairs as an interested party.

Held, dismissing the claim, that the prosecution's failure to show that it had acted with all due diligence and expedition was not fatal to an application to extend custody time limits if its failure so to act had not had any impact on the need for an extension; that, in considering whether to extend a custody time limit, the availability of resources, whether courtrooms or judges, was a relevant consideration; that courts should strive to overcome such difficulties, since failure to do so might debar them from granting such an extension; that since the extension of a custody time limit affected a defendant's convention rights the court on judicial review should scrutinise such a decision rigorously, although it should not interfere unless it concluded that the judge had wrongly exercised his discretion; and that, accordingly, on the facts, the judge had been entitled to extend the claimants' custody time limits (WLR).