Judgments - Regina v. Leeds Crown Court Ex Parte Wardle (AP) (On Appeal From A Divisional Court of The Queen's Bench Division)

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    36. Moreover in this case the time spent in custody on remand counts as time served by him as part of the sentence of 10 years imprisonment after conviction (section 9(3) of the Crime (Sentences) Act 1997).

    37. In all these circumstances I do not consider that there was here a violation of Article 5 of the Convention. Section 3 of the Human Rights Act therefore does not fall for consideration.

    38. Accordingly I would dismiss the appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

    39. Read literally, regulation 2(2) and regulation 4 of the Prosecution of Offences (Custody Time Limits) Regulations 1987 permit of only one interpretation. Manslaughter and murder are different offences. They are different offences even if they are based on the same facts. But the literal interpretation of the regulations produces a result which is, frankly, absurd. It produces a result which cannot have been the intention of Parliament.

    40. Take the case of a person charged with the offence of murder. He is remanded in the custody of a magistrates' court. The maximum period he may be detained in custody, between the date of his first appearance and the decision on whether or not to commit him to the Crown Court for trial, is 70 days. This maximum period may be extended, but only in carefully defined circumstances. After some weeks the prosecution decides, wholly properly, that the evidence is not adequate for a charge of murder but that it is adequate for the lesser charge of manslaughter. So the prosecution takes the proper step of substituting the lesser charge of manslaughter for the more serious charge of murder. No new facts are involved. According to the respondent's argument, that substitution sets in motion a new custody time limit.

    41. The absurdity of this contention is that the accused person could have been committed to trial on a charge of manslaughter, and if tried could have been convicted of manslaughter, even if the sole charge had remained a charge of murder. Throughout, once charged with murder, the accused was implicitly facing also the lesser charge of manslaughter. Throughout he was at risk of being convicted of manslaughter. In that sense, a charge of the more serious offence of murder always carried with it a charge of the lesser offence of manslaughter. To my mind it would be nothing short of a nonsense if making explicit what is already implicit were to set in motion a fresh custody time limit. That would be irrational. But this is all that happens when the more serious charge of murder is dropped, and the less serious charge of manslaughter is substituted: one charge is abandoned, and another charge, of which the accused was already at risk, is made explicit. The substitution introduces nothing new. The facts involved in the lesser charge are included within the embrace of the facts involved in the more serious charge. Why should the substitution give rise to a new custody time limit?

    42. The power of the court to grant bail does not provide a meet response to this absurdity. Parliament intended that accused persons should have the benefit of fixed maximum periods of detention in custody, extendable only in certain circumstances. If a new custody time limit is set in motion, an accused person loses that intended benefit.

    43. Nor does the court's ability to prevent abuse of its process provide the answer. The example I have given assumes that throughout the prosecution exercised its powers and discharged its responsibilities properly and conscientiously.

    44. For these reasons I agree with the views and conclusion of my noble and learned friend Lord Scott of Foscote. The literal interpretation, producing an absurd result, must yield to an interpretation which gives effect to the intention properly to be attributed to Parliament. For custody time limit purposes a charge of an offence is to be regarded as including also a charge of a lesser offence of which the person charged could, by virtue of section 6 of the Criminal Law Act 1967, be found guilty. Regulation 2(2) and regulation 4 are to be interpreted accordingly. I would allow this appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

    45. This appeal has been brought with a view to obtaining an answer to the following question of law: "When, in a magistrates' court, does the charging of an offence cause a fresh custody time limit to run?" The answer to this question depends upon the proper interpretation of regulation 4 of the Prosecution of Offences (Custody Time Limits) Regulations 1987 [SI 1987/299] in which the provisions as to custody time limits in magistrates' courts are to be found.

Background

    46. Prior to the coming into force of section 22 of the Prosecution of Offences Act 1985 there were no statutory rules which obliged the criminal courts in England and Wales to complete the various stages in the criminal process within a fixed number of days from the date when a person was remanded in custody before trial. In 1981 the Home Affairs Committee of the House of Commons observed that, quite apart from the deleterious consequences of a large remand population for the prisons and of long waiting times for individual prisoners, there was widespread agreement that excessive delay was harmful in a more general way to the criminal justice system: Fourth Report, Session 1980-81, The Prison Service, HC 412-l, para 55. Those who gave evidence to the committee expressed different views on the merits of imposing a time limit on criminal trials. But the committee concluded that on balance it would be advantageous for legislation to be introduced to extend to England and Wales the 110-day rule that had long been in force in Scotland: para 58. The current provisions relating to the 110-day overall time limit are set out in section 65 of the Criminal Procedure (Scotland) Act 1995. Section 65(4)(b) of that Act provides that if the trial of the case is not commenced within that period the accused shall be liberated forthwith and that thereafter he shall be for ever free from all question or process for that offence. The committee's recommendation that this rule be extended to England and Wales was rejected by the government. The reasons which were given for its rejection were that the Scottish rule operated in a very different context, and that delays in the commencement of trials in England and Wales were not usually attributable to the fault of the prosecutor but to the fact that the backlog of work was too large for available court capacity to handle within the time limit of eight weeks laid down by rule 19 of the Crown Court Rules 1971: The Government Reply to the Fourth Report of the Home Affairs Committee, Session 1980-81, Cmnd 8446 (1981), pp 13-14.

    47. The Home Affairs Committee returned to this issue in 1983: First Report, Session 1983-84, Remands in Custody, HC 252-I. The committee noted that the situation which had been observed in 1981 had grown much worse, as the number of prisoners held on remand had increased considerably: para 3. There was renewed concern that the length of time spent on remand by a great many accused persons was unacceptable and that there were excessive delays in bringing cases to trial: para 9. After taking evidence from various witnesses including the Lord Chancellor, Lord Hailsham of St Marylebone, and the Solicitor General for Scotland, Peter Fraser QC, the committee came up with a different solution to the problem which it was thought would be more acceptable. It recommended that the government should commit itself in principle to introducing statutory time limits for the period from arrest to trial, and that it should embark upon a series of experiments designed to demonstrate what kind of time limits would be feasible in summary and indictable cases respectively: para 31. On this occasion the committee's recommendations were favourably received by the government: The Government Reply to the First Report of the Home Affairs Committee, Session 1983-84, Cmnd 9322 (1984). The legislation with which this case is concerned is the product of the studies which were then carried out in order to determine what kind of statutory time limits would be feasible.

The Facts

    48. The appellant appeared before the Leeds Magistrates'Court on 8 January 1999 on an information charging him with the murder of John Nutter. Mr Nutter had collapsed and died during a burglary which was being carried out at his home in Pudsey, West Yorkshire on 20 July 1998. Expert opinion as to the cause of his death had previously been sought and obtained from a pathologist. The pathologist's opinion was that Mr Nutter had been suffering from a long term hypertensive heart disease, and that a combination of minor injuries and the accompanying fear during the attack would have been sufficient to cause his death. On 4 March 1999 the pathologist produced a second opinion to the same effect, namely that Mr Nutter's death occurred when it did due to the combination of minor injuries and the fear in which he had been placed during the burglary. When the appellant appeared in Leeds Magistrates' Court on 19 March 1999 the Crown offered no evidence on the murder charge, but a fresh charge was laid against the appellant for manslaughter.

    49. The 70 day custody time limit in terms of regulation 4(4) of the Prosecution of Offences (Custody Time Limits) Regulations 1987 began to run when the appellant first appeared on 8 January 1999. It was due to expire on 19 March 1999. When he appeared in Leeds Magistrates' Court on that date, the charge having been changed from murder to manslaughter, the Crown sought an extension of the custody time limit. The stipendiary magistrate granted the Crown an extension. He found that the prosecution had acted with all due expedition and that there was good and sufficient cause for an extension. But he also held that the new charge of manslaughter attracted its own custody time limit under regulation 4(4). The effect of his decision was that the appellant's 70 day custody time limit began to run as of new from 19 March 1999.

    50. The appellant appealed against this decision to the Crown Court on 22 March 1999. In the Crown Court Judge Hoffman held that the Crown had not acted with due expedition and that the old custody time limit ought not to have been extended. But he also held that, as manslaughter was a different offence from murder, the appellant's custody time limit ran de novo from the preferment against him of the new offence of manslaughter. An application for judicial review of that decision was dismissed by the Divisional Court (Kennedy LJ and Mitchell J) on 26 April 1999 on the ground that the preferring of the manslaughter charge properly resulted in the creation of a new custody time limit. Mitchell J expressed concern at the end of his judgment about the considerable measure of latitude which had been extended to prosecutors to bypass controls on the extension of the prescribed time limit by introducing new or different charges based on the same evidential material. In his concurring judgment Kennedy LJ said that he agreed, not least with the sentiments expressed at the end of Mitchell J's judgment.

    51. On 18 May 1999 the appellant appeared before the Recorder of Leeds at a plea and directions hearing. A new indictment was preferred against him which contained three counts. These were manslaughter, wounding with intent and aggravated burglary. The appellant pleaded not guilty to all three counts, and the case against him was set down for trial on 22 September 1999. On the date of the trial he pleaded guilty to manslaughter. The charges of wounding with intent and aggravated burglary were left on the file. He was sentenced to ten years' imprisonment.

    52. In terms of section 9(3) of the Crime (Sentences) Act 1997, the court is required to direct that the number of days for which an offender has been remanded in custody in connection with the offence or a related offence for which he is being sentenced shall count as time served by him as part of the sentence. In the result the appellant has not been prejudiced by the decision that a new custody time limit began to run against him when the charge of manslaughter was brought on the date when the original custody time limit was due to expire. Nevertheless his case raises an important issue of principle. He would have been entitled to be released on bail immediately on the expiry of the original custody time limit, which Judge Hoffman held ought not to have been extended, if the correct view was that no new custody time limit was introduced by the bringing of the charge of manslaughter.

The Statutory Provisions

    53. The Secretary of State was given power by section 22 of the Prosecution of Offences Act 1985 to set time limits with respect to the preliminary stages of proceedings for an offence. Subsection (1) of that section provides:

    "The Secretary of State may by regulations make provision, with respect to any specified preliminary stage of proceedings for an offence, as to the maximum period -

    (a)   to be allowed to the prosecution to complete that stage;

    (b)   during which the accused may, while awaiting completion of that stage, be -

      (i)   in the custody of a magistrates' court; or

      (ii)   in the custody of the Crown Court. . . ."

    54. No regulations have yet been made as to overall time limits. But regulations have been made which govern the period of time an accused may be kept in the custody of the magistrates' court and the Crown Court. These are contained in the Prosecution of Offences (Custody Time Limits) Regulations 1987, as amended: for a list of the amending regulations, see Archibold 2001, para 3.56. Custody time limits in the magistrates' court are governed by regulation 4, which so far as relevant to this case provides:

    "(1) …the maximum period during which a person accused of an indictable offence other than treason may be in the custody of a magistrates' court in relation to that offence while awaiting completion of any preliminary stage of the proceedings specified in the following provisions of this Regulation shall be as stated in those provisions.

    (2) Except as provided in paragraph (3) below, in the case of an offence triable either way the maximum period of custody between the accused's first appearance and the start of summary trial or, as the case may be, the time when the court decides whether or not to commit the accused to the Crown Court for trial shall be 70 days…

    (3) In the case of an offence triable either way if, before the expiry of 56 days following the day of the accused's first appearance, the court decides to proceed to summary trial in pursuance of sections 19 to 24 of the [Magistrates' Courts Act 1980] the maximum period of custody between the accused's first appearance and the start of the summary trial shall be 56 days.

    (4) In the case of an offence triable on indictment exclusively the maximum period of custody between the accused's first appearance and the time when the court decides whether or not to commit the accused to the Crown Court for trial, shall be 70 days…

    (5) The foregoing provisions of this regulation shall have effect as if any reference therein to the time when the court decides whether or not to commit the accused to the Crown Court for trial were a reference -

    (a)   where a court proceeds to inquire into an information as examining justices in pursuance of section 6(1) of the 1980 Act, to the time when it begins to hear evidence for the prosecution at the inquiry…"

    55. Custody time limits in the Crown Court are governed by regulation 5, which so far as relevant provides:

    "(2) Where -

    (a) a person accused of an indictable offence other than treason is committed to the Crown Court for trial; or

    (b) a bill of indictment is preferred against a person under section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933,

    the maximum period during which he may be in the custody of the Crown Court in relation to that offence, or any other offence included in the indictment preferred against him, while awaiting the preliminary stage of the proceedings specified in the following provisions of this Regulation shall be as stated in these provisions.

    (3) The maximum period of custody -

    (a) between the time when the accused is committed for trial and the start of the trial; or

    (b) where a bill of indictment is preferred against him under the said section 2(2)(b), between the preferment of the bill and the start of the trial,

    shall, subject to the following provisions of this Regulation, be 112 days.

    (4) Where, following a committal for trial, the bill of indictment preferred against the accused (not being a bill preferred under the said section 2(2)(b)) contains a count charging an offence for which he was committed for trial at that committal together with a count charging an offence for which he was committed for trial on a different occasion, paragraph (3) above applies in relation to each offence separately.

    (6) Where, following a committal for trial, the bill of indictment preferred against the accused (not being a bill preferred under the said section 2(2)(b)) contains a count charging an offence for which he was not committed for trial, the maximum period of custody -

    (a)   between the preferment of the bill and the start of the trial, or

    (b)   if the count was added to the bill after its preferment, between that addition and the start of the trial,

    shall be 112 days less any period, or the aggregate of any periods, during which he has, since the committal been in the custody of the Crown Court in relation to an offence for which he was committed for trial.

…"

    56. If the charge against the appellant from the outset of the proceedings against him had been one of manslaughter and not murder, the effect of these provisions would have been as follows. Manslaughter is triable only on indictment. So the maximum period during which the appellant could have been detained in the custody of the magistrates' court between his first appearance in that court and the time when the court decided whether or not to commit him to the Crown Court for trial would have been 70 days: regulation 4(4). The maximum period during which he could have been detained in the custody of the Crown Court between the time when he was committed to that court for trial and the start of the trial would have been 112 days: regulation 5(3)(a). The fact that the indictment which was preferred against him in the Crown Court included the two other offences of wounding with intent and aggravated burglary would, in this case, have made no difference to the length of the period: see regulation 5(6)(a). The position would have been different if the appellant had been committed for trial on a different occasion on those other two charges. Regulation 5(3) would then have applied in relation to the offences for which he had been committed for trial on different occasions separately: see regulation 5(4). It may be noted in passing that it has also been held in Scotland, in regard to the operation of the 110-day rule, that each offence has to be looked at separately in relation to the date when the committal took place: Ross v H M Advocate 1990 SCCR 182.

    57. It has not been suggested in this case that the provisions of regulation 5 of the 1987 Regulations regarding the custody time limits in the Crown Court give rise to any difficulty. The question which the appellant has raised is directed only to the provisions of regulation 4. This is because no express provision is made in regulation 4 for cases where additional charges are preferred against the accused while he is in the custody of the magistrates' court. It is to be noted that regulation 4 must be read in the light of regulation 2(2)(c), which provides:

    "(2) In these Regulations, a reference to a person's first appearance in relation to proceedings in a magistrates' court for an offence is -

    (c)   … a reference to the time when first he appears or is brought before the court on an information charging him with that offence."

    58. The wording of regulation 2(2)(c) reflects that of section 1(1) of the Magistrates' Courts Act 1980. Criminal proceedings in magistrates' courts are started by the appearance of the accused following arrest and charge or by the laying before the court of an information with a view to commencing a prosecution against him. Section 1(1) prescribes the procedure for the issuing of a summons to a person against whom an information has been laid to appear before the magistrates' court "to answer to the information." In the Crown Court the bill of indictment may contain a count charging an offence for which the accused has not been committed for trial in the magistrates' court. But the preliminary procedure in the magistrates' court is concerned exclusively with the offence which has been described in the information, summons or other document which has been laid before the court: regulation 2(2)(c). The basis upon which regulation 4 appears to proceed is that each information charging the accused with an offence attracts its own custody time limit.

    59. To complete this review of the statutory provisions, it is necessary to mention the provision which deals with extension of the custody time limits. This is section 22(3) of the Prosecution of Offences Act 1985 which, as amended by section 43 of the Crime and Disorder Act 1998 with effect from 1 June 1999, is in these terms:

    "(3) The appropriate court may, at any time before the expiry of a 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."

    60. At the time when the present case was in the magistrates' court, paragraphs (a) and (b) of that subsection provided simply that in the exercise of its power to extend the time limit the court had to be satisfied "(a) that there is good and sufficient cause for doing so; and (b) that the prosecution has acted with all due expedition." Guidance as to the tests laid down in section 22(3) was provided by Lord Bingham of Cornhill CJ in R v Manchester Crown Court, Ex p McDonald [1999] 1 WLR 841. At p 847C he said, with reference to the condition in section 22(3)(b), that what the court must require is "such diligence and expedition as would be shown by a competent prosecutor conscious of his duty to bring the case to trial as quickly as reasonably and fairly possible." Mitchell J said that he regarded it as unsatisfactory that regulation 4 gave such latitude to prosecutors to subject persons to new time limits in the magistrates' court by bringing fresh charges against them. He said that this was inconsistent with the purpose of the regulation as it enabled the prosecution, in effect, to bypass the requirement in section 22(3)(b) that any extension of the time limit had to be justified by showing that all due diligence and expedition had been exercised.

The Argument in Outline

    61. For the appellant Mr MacDonald QC submitted that the charging of a new offence in the magistrates' court will cause a fresh custody time limit to run unless (a) the new offence is the same as the original offence charged but with different particulars, (b) the original offence charged necessarily includes or amounts to the new offence charged, whether expressly or impliedly; or (c) in charging the new offence the prosecuting authority is committing an abuse of process. As to abuse of process, he submitted that the test to be applied was in need of reconsideration in view of dicta in the Divisional Court which indicated that in this context the test was that of bad faith or dishonesty. He also submitted that, now that the Human Rights Act 1998 is in force, section 3 of that Act requires regulation 4 to be read and given effect to in a way that is compatible with article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") which guarantees to the individual the right to liberty.

    62. Applying these arguments to the facts of this case, he submitted that for the purposes of regulation 4(4) the original charge of murder should be regarded as including the new charge of manslaughter. This was because on an indictment for murder a person found not guilty of murder may be found guilty of manslaughter: Criminal Law Act 1967, section 6(2)(a). He submitted in the alternative that the Crown's decision to change the charge in the magistrates' court from one of murder to one of manslaughter in circumstances where an extension of the existing custody time limit could not be justified was an abuse of process if, contrary to his primary argument, the effect of that decision was to subject the appellant to a new custody time limit.

    63. Mr Perry for the respondent accepted that a new custody time limit would not run if the new information consisted simply of an amendment to the particulars of the offence in the original information which had been laid before the court. In that event the offence in the new information would be in law the same offence as the original. He also accepted that a new custody time limit would not run if the laying of the new information could be said to be an abuse of process, as to which bad faith or dishonesty ought no longer to be regarded as the criterion. Where he parted company with Mr MacDonald was in regard to his proposition that a new custody time limit would not run if the original offence charged amounted to or included the new offence, either expressly or impliedly. He also parted company with him in regard to the question whether regulation 4, on his construction of it, was incompatible with article 5 of the Convention.

The Meaning of "Offence"

    64. The first question is whether, according to ordinary canons of construction, the word "offence" when it appears in regulation 4(4) of the 1987 Regulations can be read as including those other offences of which the accused could be convicted at trial under sections 6(2) and 6(3) of the Criminal Law Act 1967. In other words, can the reference in the opening words of regulation 4(4) to "an offence triable on indictment" be read as including any other offence of which the accused could be convicted in the Crown Court if the jury were to find him not guilty of the offence with which he has been charged in the information before the magistrates?

    65. Sections 6(2) and 6(3) of the Criminal Law Act 1967, which the appellant says should be read in to regulation 4(4) of the 1987 Regulations, provide:

    "(2) On an indictment for murder a person found not guilty of murder may be found guilty -

    (a)   of manslaughter, or of causing grievous bodily harm with intent to do so; or

    (b)   of any offence of which he may be found guilty under an enactment specifically so providing, or under section 4(2) of this Act; or

    (c)   of an attempt to commit murder, or of an attempt to commit any other offence of which he might be found guilty;

    but may not be found guilty of any offence not included above.

    (3) Where, on a person's trial on indictment for any offence except treason or murder, the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence."

 
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