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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Tumaye v The Central Criminal Court [2007] EWHC 935 (Admin) (28 March 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/935.html Cite as: [2007] EWHC 935 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		28th March 2007

1. LORD JUSTICE LAWS: This is a restored application for permission to seek judicial review of the decision of His Honour Judge Roberts QC, made in the Central Criminal Court on 22nd December 2006, to extend the relevant custody time limit relating to the claimant's trial for conspiracy to wound and other offences. The trial is due to start on 4th June 2007. The custody time limit which was due to expire on 26th December 2006 (that, of course, was Boxing Day) was extended by Judge Roberts until 30th December 2007. By force of section 22(3) of the Prosecution of Offences Act 1985 a judge may only extend custody time limits if he is satisfied to the civil standard of proof that the need for extension is due to "some other good and sufficient cause" and "that the prosecution has acted with all due diligence and expedition".
2. The application on 22nd December 2006 was listed before His Honour Judge Roberts as a matter of great urgency. A written application to extend the custody time limits had in fact been served on 15th November 2006. There were interlocutory hearings in the case on 24th November and 11th December 2006 when many matters had to be dealt with. The application to extend the custody time limits, although there on the papers, was seemingly overlooked and it was only very late in the day that it was appreciated that the expiry date, Boxing Day, was fast approaching. In the result the Crown asked the matter to be listed very hurriedly on 22nd December. I think Mr Finucane QC, who acted for the Crown, was engaged in another matter before Judge Roberts in the same court.
3. The claimant was not present when the Crown's application came on. His counsel instructed in the case generally was not available. A pupil barrister was dispatched to stand in for him but she, it is said, had no papers and virtually no instructions. The Crown is, as I have said, was represented by Mr Finucane QC.
4. It is plain that on 22nd December 2006 the judge made the order he did so as to preserve the position until there could be full argument on a later occasion. We have the transcript of the hearing. I note these passages. Page 2 at E:

"MR FINUCANE: We are asking this matter to be dealt with pro tem because of what has occurred".

Then a few lines later at F:

"MR FINUCANE: Although the notice of the application for custody time limits had been served in November, the fact of the matter is that nobody raised them, either the court, the prosecution or the defence. The reality is that it was entirely an oversight that it was not dealt with on that occasion."

Page 8 E:

"JUDGE ROBERTS: Do I have jurisdiction to extend the custody time limit when the defendants are not here, because I have to say that if I do I would have thought the sensible thing to do would be to extend it but only as far as the day Judge Kramer is going to be hear next week so that the various subjects can be argued on that occasion?"

Page 10 F:

"JUDGE ROBERTS: Well, I think that what I am going to do, subject to anything that anybody may say, is to extend custody time limits today but only until Friday of next week, which will therefore be 30th December, on the basis that the matter can then be fully argued before Judge Kramer on Friday. I think it is better to do it that way."

In fact I think the judge has the calendar wrong. The Friday would I think have been 29th December, but no matter.

5. It is clear from the transcript that there was no direct attention paid to the statutory criteria provided for by section 23 and certainly no adversarial argument as to whether those criteria were met or not.
6. The grounds for judicial review are essentially that the judge failed to engage with the questions which he had to answer under section 22(3). There has also been complaint that the custody time limits should not have been extended in the absence of the appellant at the hearing and/or where he was not represented by counsel properly instructed.
7. There is a document prepared by the judge himself headed "Observations" and dated 26th January 2007. Judge Roberts has, I assume, prepared this document purely in order to be of assistance to this court. He says this:

"(2) A written application by the Crown for the extension of custody time limits had been served before the matter was last before Judge Kramer. That application set out a prima facie case that the Crown had acted with all due diligence and expedition. There was clearly good and sufficient cause, namely that through circumstances outside everyone's control the trial could not take place until after 26th December, when the custody time limits expired, to grant an extension . . .

(11) It is suggested that I did not apply my mind to the statutory test for the extension of custody time limits. It is quite correct that in granting the extension I did not specifically refer to the statutory criteria and I of course accept that it would have been better if I had done so.

(12) However, the reality was that I had before me, and I had well in mind, a written application by the Crown which set out a prima facie case that they had acted with all due diligence and expedition. Miss Mottison did not seek on that occasion to advance any argument to the contrary and it was clear that there was good and sufficient cause to grant this extension."

8. I will deal briefly with the points relating to the claimant's absence and the quality of representation, though these are no longer at the forefront of Mr Tomassi's argument for the claimant. It seems to me clear that there is no black letter requirement that a defendant be present upon the hearing of an application by the Crown to extend the custody time limits. I would accordingly have thought that there is no settled right to be present, but of course there may be particular circumstances by force of which fairness, and indeed Article 6 of the European Convention on Human Rights, would require that he be at court; for example, if instructions had to be taken upon some critical question of fact. That would depend upon the particular facts, as I have said. I know of no reason why on that basis this claimant needed to be present on 22nd December.
9. As for the need for properly instructed counsel, that is a basic requirement of fairness. It is lamentable if that requirement was not met essentially because the Crown had had to assemble its application to extend the custody time limits at extremely short notice. I have considered whether a failure by the Crown to seek an extension of the custody time limits in good time and on proper notice might itself tend to show a want of due diligence and expedition within the meaning of the statute. There are difficulties in such a position and I certainly do not hold today that the statute should be so construed. It may be a matter for argument another time.
10. I turn to the principal point here, namely: has the judge failed to engage with the statutory criteria? Mr Finucane for the Crown said that the judge did address his mind to the statutory test and the observations he made in his document dated 26th January 2007 demonstrated as much. That document, as I have said, is intended to be helpful, and helpful it is. It is extremely carefully drafted. The learned judge is at pains to say that there was a document before him from the Crown setting out a prima facie case. He does not state that he decided, as a matter of judicial determination, that that prima facie case was in fact made good. He says it was clear that there was good and sufficient cause to grant the extension, but even if that could be read as a reference to a finding to that effect having been made by him, still he does not state that he had in truth found that the Crown had acted with all due diligence and expedition. In fact the terms of the transcript which I have read are, in my judgment, inconsistent with the view that the judge made a judicial determination that the statutory criteria applied. The judge was at pains, and for the best of reasons, to hold the ring until the matter could be properly argued on an occasion when counsel was properly instructed.
11. The result, however, is that the custody time limits have been extended without there being a finding that the statutory criteria are met. Accordingly, in my judgment, the decision of the judge cannot stand. If my Lord agrees, I apprehend it is common ground that we should treat this hearing as the substantive hearing for judicial review and hear counsel as to what relief should be granted.
12. MR JUSTICE STANLEY BURNTON: I entirely agree.
13. LORD JUSTICE LAWS: First of all we will quash the order made by His Honour Judge Roberts. That must follow, I think, Mr Finucane?
14. MR FINUCANE: Yes, my Lord.
15. LORD JUSTICE LAWS: There remains the question of bail conditions, is that right?
16. MR FINUCANE: My Lord, yes.
17. LORD JUSTICE LAWS: We need to be educated by you about that, I think. By both of you.
18. MR TOMASSI: My Lord, I made in this case two separate bail applications. The material available was different on each application, but I have no reason to think that the things that were being put forward in support of bail are no longer available. So it would be proper for this court to admit Mr Tumaye to conditional bail.
19. LORD JUSTICE LAWS: Yes, we want to know what conditions we could impose.
20. MR TOMASSI: My Lord, I respectfully suggest a condition of residence, address to be supplied to the court forthwith, and I respectfully suggest that a condition of curfew would be appropriate.
21. LORD JUSTICE LAWS: With specified hours, obviously. What would they be?
22. MR TOMASSI: I would suggest, my Lord, they would be not to be out and about between the hours of 7 pm in the evening and 6 am in the morning which effectively obligates him to stay with his parents at home.
23. LORD JUSTICE LAWS: The address you are proposing is his parents address, is it?
24. MR TOMASSI: Yes.
25. LORD JUSTICE LAWS: We will come back to that. Any other conditions you are offering for your part?
26. MR TOMASSI: With some trepidation I offer a condition of surety. The reason for the trepidation is that I am no longer confident that the funds which were at one time available are still available. It would be a proper exercise for that to be determined. The surety would have to be in a relatively small sum.
27. LORD JUSTICE LAWS: We will hear Mr Finucane on that. What about reporting to the police station?
28. MR TOMASSI: No objection.
29. MR JUSTICE STANLEY BURNTON: And a doorstep condition. That is when a policeman calls, for example, at 10 past 7 and he presents himself at the doorstep. Otherwise there is no evidence that he is not there.
30. LORD JUSTICE LAWS: A policeman is entitled to call politely at 10 past 6 in the morning without any order of the court, is he not? It is a free country after all. All right. Anything else?
31. MR TOMASSI: No.
32. LORD JUSTICE LAWS: Mr Finucane?
33. MR FINUCANE: My Lord, the other defendants who are on bail are on a variety of conditions. The first is to surrender all passports and travel documents; secondly, not to apply for any travel documentation; thirdly, to report to a police station daily, at hours that are suitable to the defendant.
34. LORD JUSTICE LAWS: They have to specify the police station and the time, will they not? Or you will have to agree them. You are going to have to sort this out between the two of you.
35. MR FINUCANE: Mr Tomassi will no doubt know which is his local police station. The curfew has been asked for between 7 pm and 6 am but for the others it is 6 pm to 6 am. Indeed, as my Lord Stanley Burnton J has said, the doorstep position is one we would have sought. Obviously, the condition of residence at home. The other defendants are not to enter the London Borough of Camden because that is where the scene of the murder took place, and the whole basis and background of the murder is the rivalry between the North London Somalis and the Camden Somalis.
36. LORD JUSTICE LAWS: On dear. That sort of case, is it? So you want the same condition in this case.
37. MR FINUCANE: Yes, my Lord.
38. LORD JUSTICE LAWS: Not to enter any part of the London Borough of Camden.
39. MR FINUCANE: Unless, of course, he needs to see his solicitors. I think they are from Kentish Town, which may be in the London Borough of Camden.
40. LORD JUSTICE LAWS: It is.
41. MR FINUCANE: He needs to go by appointment and notification to the Crown and the court.
42. LORD JUSTICE LAWS: Save to see his solicitors.
43. MR JUSTICE STANLEY BURNTON: I am beginning to suspect that the two of you could put your heads together and produce a written agreed order.
44. LORD JUSTICE LAWS: You are looking sceptical, Mr Finucane.
45. MR FINUCANE: I am sceptical, my Lord.
46. LORD JUSTICE LAWS: Mr Tomassi, do you object to any of this?
47. MR TOMASSI: No, my Lord.
48. LORD JUSTICE LAWS: There you are.
49. MR FINUCANE: My Lord, can I just mention the other ones. Not to contact witnesses or co-defendants.
50. LORD JUSTICE LAWS: Well, that is fairly standard.
51. MR FINUCANE: A surety. The other defendants have had both sureties and securities for their attendance; a security being a deposit with the court of a sum of money by them and a surety being somebody who, if they do not turn up, has to pay up. Those are the conditions that apply broadly to the other defendants who are who bail in the second trial.
52. MR JUSTICE STANLEY BURNTON: You say that they should be applied to this defendant.
53. MR FINUCANE: Yes, my Lord. The reason is that this defendant is accused of conspiracy to wound with intention to do GBH in relation to Camden Somalis and conspiracy to possess offensive weapons. There were seven knives recovered at the scene shortly after the murder and many other weapons, over 20. The man was stabbed 17 times in less than 20 seconds. The defendant is also charged with robbery of a completely different person within less than a minute of the murder taking place. There is a real fear of further offences. This is why we want the conditions, my Lord.
54. LORD JUSTICE LAWS: Yes, indeed.
55. MR FINUCANE: There was also the possibility -- although His Honour Judge Kramer found on a previous occasion that he did not have any concerns about the defendant leaving the country because he is originally from Sweden. He is a refugee from Somalia.
56. LORD JUSTICE LAWS: Does he have refugee status from the Secretary of State?
57. MR FINUCANE: Not here, my Lord. Mr Tomassi may be able to assist with that. He in fact came to this country from Sweden. Although it was said in the hearing before that there were not many Somalis in Sweden, we have subsequently obtained a statement from the Consul in Sweden showing that there are a considerable number of Somali associations in the two main cities of Stockholm and Gothenburg, indicating that there are many, many Somalis.
58. LORD JUSTICE LAWS: I rather agree with my Lord. First of all, are there any more conditions?
59. MR FINUCANE: No, my Lord.
60. MR JUSTICE STANLEY BURNTON: We have to deal with sureties and security. Those are contentious?
61. MR FINUCANE: I think so.
62. LORD JUSTICE LAWS: The deposit in the security will be.
63. MR JUSTICE STANLEY BURNTON: I think the surety is contentious.
64. LORD JUSTICE LAWS: I thought he was prepared in principle to offer a surety but did not know if the surety was any longer good for the money. Is that the position?
65. MR TOMASSI: Yes. I have no reason to think that he is not in the same position as he was when we tendered him as a surety.
66. MR JUSTICE STANLEY BURNTON: In the sum of?
67. MR TOMASSI: I think it was £2,000. I could be mistaken.
68. LORD JUSTICE LAWS: How many other defendants are there?
69. MR FINUCANE: There are eight in the main trial where the jury is now out. There are now five in the second trial.
70. LORD JUSTICE LAWS: The 4th June trial?
71. MR FINUCANE: Yes, my Lord.
72. LORD JUSTICE LAWS: All of those have provided a security, have they?
73. MR FINUCANE: Those who are on bail.
74. LORD JUSTICE LAWS: How much?
75. MR FINUCANE: Can I take instructions?
76. LORD JUSTICE LAWS: Yes, please.
77. MR FINUCANE: The position is, my Lord, so I can just clarify matters, in the second trial this will make Mr Tumaye the only defendant on bail. It is two defendants in the first trial, both of them very young, who are on bail with sureties and securities.
78. LORD JUSTICE LAWS: If we imposed a condition which he is unable to fulfil, or which he does not fulfil, he of course would not be released.
79. MR FINUCANE: That is correct, my Lord.
80. LORD JUSTICE LAWS: That would not be a breach of the custody time limit provisions.
81. MR FINUCANE: No, my Lord.
82. LORD JUSTICE LAWS: Because he has been bailed loyally to that statute but has not met the conditions.
83. MR FINUCANE: That is absolutely correct, my Lord.
84. MR TOMASSI: May I help?
85. LORD JUSTICE LAWS: Certainly.
86. MR TOMASSI: There is a well recognised prohibition on imposing unachievable conditions of bail.
87. LORD JUSTICE LAWS: I thought you would say that.
88. MR JUSTICE STANLEY BURNTON: It must be right, because otherwise it would be a disguised means of prolonging custody. But if they are achievable and he chooses not to, it is another matter.
89. MR TOMASSI: My Lord, could I recommend this course. Those who instruct me will be more aware of the position. Would you permit me to take instructions from them as to a bail package to which I would immediately send to the Crown Prosecution Service and then this court to endorse that package and thereafter for the matter to be resolved.
90. LORD JUSTICE LAWS: I think there is going to have to be some movement, Mr Tomassi. That may be the best way of achieving it. I have not discussed it with my Lord. If we do that, at this moment we simply quash the order as we have said and leave over bail conditions and you can either put in an agreed document or mention it later today. My Lord said that we should not make the order to quash until the bail is sorted out.
91. MR TOMASSI: Would you allow me a moment or two outside the court to sort this matter out?
92. LORD JUSTICE LAWS: If you literally only need a moment or two. I thought you might mention it during the course of the day. You may need to take instructions from other persons. You can mention it at 2 o'clock if need be.