Adjournment - Disclosure - Due diligence - Adjournment of trial date

R (on the application of Arshad) (claimant) v Southwark Crown Court (defendant) & Mohammed Butt (interested party): DC (Lord Justice Thomas, Mr Justice Kenneth Parker): 5 May 2011

The claimant (X) applied for judicial review of a decision of a Crown Court judge to grant an application brought by the defendant Crown Prosecution Service to extend custody time limits.

X and his co-defendants (Y) had been charged with conspiracy to defraud.

A trial date was fixed and the Crown Prosecution Service was required to disclose evidence by a specified date.

The person responsible for arranging the disclosure on behalf of the CPS became ill and the evidence was not disclosed until five weeks after the specified date.

Y maintained that they did not have enough time to analyse the evidence and requested an adjournment of the trial date.

The adjournment was granted and a new trial date was fixed to hear the case seven months after the original trial date.

Subsequently, the CPS applied to extend the time limit for remanding X and Y in custody.

A judge held that the CPS had acted with due diligence and expedition in disclosing the evidence because it was not a standard of perfection and allowed the extension of the custody time limits.

Held: (1) The principal issue related to whether the CPS had exercised due diligence in disclosing the evidence and, if not, whether it had caused the delay to the trial date.

The judge accepted the CPS’ argument without examining the underlying material and without making any findings.

The failure of the CPS to deliver the evidence within the specified time, and its failure not to do so for a further five weeks, was plainly a failure to act expeditiously.

The fact that the delay was caused by the sickness of a person responsible for arranging the disclosure was irrelevant.

(2) The real issue before the judge was whether the CPS’ failure to disclose the evidence was causative of the delay to the trial date.

What had been required by the judge was an analysis of whether Y had been correct to claim that they needed more time to analyse the evidence.

It was not possible to embark on that analysis retrospectively and, since the judge had made no findings, there was no alternative but to quash the decision of the judge and refuse the extension of the custody time limits.

Application granted.

David Gottlieb (instructed by Hussain) for the claimant; David Hughes, Emma King (instructed by the CPS) for the defendant; David Emanuel for the interested party.