R (on the application of) Musfer Jabbar v The Sheffield Crown Court v The Direction of Public Prosecutions, The Lord Chancellor [2022] EWHC 516 (Admin)

August 1, 2022

Rhianydd Clement

In this case the Divisional Court was concerned with the interpretation of section 22(5)(b) of the Prosecution of Offences Act 1985 (‘POA 1985’), in particular the phrase “released on bail in consequence of the expiry of a custody time limit”. This judgment significantly impacts on those defendants that are released and subsequently remanded back into custody, in terms of determining whether their Custody Time Limit (‘CTL’) has stopped or been paused.

Factual Background

In this case, the interpretation of s22(5)(b) made the difference as to whether the Defendant had been unlawfully detained beyond his custody time limit.

The Defendant was granted bail following the judge refusing to grant an extension to the CTL due to the Prosecution failing to act with all due diligence and expedition in the proceedings.

The issue was that the application to extend the CTL was heard 20 days prior to its expiry and the Defendant was released at that point. There is no complaint that the application was listed along with the application of the co-defendant, due to the latter’s CTL being due to expire in the next few days. This was practical in all the circumstances to avoid wasting court resources and time.

The question is whether this release immediately following the unsuccessful application to extend the CTL but over two weeks before its expiry, was a release “in consequence of” the expiry of the CTL for the purposes of s22(5)(b) POA 1985. This would thereby have the effect of stopping the CTL clock as opposed to pausing it.

Submissions

Counsel for the Claimant, Rupert Bowers QC and Victoria Smith-Swain, submitted that the granting of bail in these circumstances was not bail “in consequence of” the expiry of the CTL, instead it was the judge exercising a discretion to grant bail. The CTL clock therefore continued to run when the Defendant was subsequently re-remanded. They relied on Regulation 6(6) of the Prosecution of Offences (Custody Time Limits) Regulations 1987, which specifies that bail should be granted “as from the expiry of the time limit”, meaning bail granted before the expiry was not in accordance with the Regulation.

Treasury Counsel for the Respondent, Tom Little QC, drew a distinction between the granting of bail following a bail application, where the Court concludes that the grounds for refusing bail are not established; and a release on bail solely because the CTL is about to expire and the criteria to extend are not met. In the latter situation, a defendant is released despite the fact the grounds for refusing bail do or may remain satisfied. It was submitted that this case fell into the latter category and so was bail granted “in consequence of the expiry” of the CTL.

The Judgment

The Divisional Court held that the granting of bail in this case was “in consequence of” the expiry of the CTL within the meaning of s22(5)(b) POA 1985:

“In every case where a defendant is released solely because an extension to the CTL has been refused, or when no extension has been sought, the practical reality is, as we have described, that release is before the expiry of the time limit – whether it is a matter of hours or days. Each such release is in consequence of the expiry of the CTL and the CTL comes to an end upon such release.”[1]

The Court specifically considered that there was an application before the Crown Court for an extension to the CTL which was refused. The Court also referenced the words of the deciding judge at the time of the refusal and indicated this made it clear to the Defendant why he was being released: “…I am going to grant you bail, having refused the application to extend custody time limits”.[2]

The Court further considered that due to practical reasons applications to extend CTLs are generally listed a few days before the expiry and are sometimes listed weeks before.

It was specified that this interpretation did not create a situation of custody without limits, as irrespective of why a defendant is remanded into custody, if the circumstances have changed a new bail application may be made.

Further, the Court confirmed:

“…where bail is granted other than as a consequence of the expiry of the CTL the clock is paused when the defendant is released”.[3]

Discussion

The difficulty this judgment poses is we are now left wondering where do we draw the line?

It is unclear how long before the expiry of the CTL a defendant can be released “in consequence of” that upcoming expiry, with the effect that the CTL clock stops rather than pauses.

The Respondent conceded in submissions that it would have been preferable for the application to have been heard closer to the expiry of the CTL, or for the judge to direct that the Defendant be released closer to the expiry. This ultimately made no difference as to whether the decision fell within s22(5)(b) POA 1985. However, it would seem that either of these approaches would be preferred in order to avoid a similar situation from arising.

 

[1] Para 55.

[2] Para 53.

[3] Para 52.