LAW REPORT: Pre-trial custody extended for want of a judge

Regina v Central Criminal Court, ex parte Abu-Wardeh; Queen's Bench Divisional Court (Lord Justice Auld, Mr Justice Sachs) 5 June 1996

In exceptional circumstances, the unavailability of a judge of suitable seniority to try a criminal case could amount to a "good and sufficient cause" for extending the pre-trial custody time limit under section 22(3) of the Prosecution of Offences Act 1985.

The Queen's Bench Divisional Court dismissed an application by Mahmoud Abu-Wardeh for judicial review of the decision of the Recorder of London on 19 February 1996, extending the custody time limit in the applicant's case until 1 October 1996.

Rock Tansey QC and Simon Pentol (Kaim Codner) for the applicant; William Boyce (CPS HQ) for the Crown.

Lord Justice Auld said the applicant and three others were charged with conspiring to cause explosions and associated offences in connection with bomb attacks in July 1994 against the Israeli Embassy in London and the Jewish Philanthropic Association's premises in Finchley.

Because of its importance, the case was listed for trial by a High Court judge. It was originally fixed to start on 2 January 1996. That date was just within the custody time limit of 112 days from the latest committal of joint defendants to arraignment imposed by reg 5 of the Prosecution of Offences (Custody Time Limits) Regulations 1987.

In December 1995 the trial was postponed, and the custody time limit extended, until 19 February 1996. Then in January 1996 the designated judge, Mr Justice Scott-Baker, withdrew from the case because he knew one of the prosecution witnesses. Mr Justice Garland was assigned to try it instead. On 26 January, he heard applications by the prosecution and two defendants for a further adjournment, which the applicant opposed. Because of his judicial commitments, he was unable to start the trial until 1 October 1996. No other judge of sufficient seniority was available to try it before then.

The prosecution then applied to the recorder for a further extension of the custody time limit until the new trial date of 1 October. The recorder so ordered, having concluded that there was "good and sufficient cause" under section 22(3) of the 1985 Act.

Mr Tansey said the effect of that decision was that the applicant would spend a total of 389 days in custody before trial. So long a period was contrary to the whole purpose of the legislation, which was to shorten the period in custody before trial. While it was necessary for this serious matter to be tried by a senior High Court judge, its assignment to a judge who, because of his other judicial commitments, could not try it before the autumn could not, in the circumstances, be a "good and sufficient cause". Nor, he argued, could protection of the public, another reason relied on by the recorder.

In his Lordship's view, the statutory formula of the two adjectives "good" and "sufficient" must have some purpose other than mere emphasis. "Good . . . cause" must mean some cause for the extension of time sought, not the corresponding need to keep the defendant in custody. "Sufficient" meant what it said and required the court when considering a "good . . . cause" to evaluate its strength.

Each case must be decided on its own facts. On the issue of sufficiency, the judge was entitled to have regard to the nature of the case and any particular limitations this might impose on the status and seniority of the judge to try it and the difficulty of making such a judge available. He must decide whether any such difficulty was a sufficient cause for an extension of the length sought.

In the exceptional circumstances of this case, the recorder could not be said to have acted perversely or unreasonably in finding the unavailablility of the judge to be a good and sufficient cause for extending the custody time limits.

However, his Lordship disagreed with the decision in R v Luton Crown Court, ex p Neaves [1992] Crim LR 721, that protection of the public could in itself be a "good and sufficient" cause for extending the custody time limit. As all serious charges save treason were subject to the custody time limits and as many defendants facing serious charges were remanded in custody for the protection of others, Parliament could not have intended that the original reason for custody could in itself be a good cause for extending the custody time limit.

Paul Magrath, Barrister