CO/9416/2008 
Neutral Citation Number: [2009] EWHC 85 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 15th January 2009 
 
B e f o r e:

LORD JUSTICE MAURICE KAY 

MR JUSTICE WYN WILLIAMS 
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Between: 
THE QUEEN ON THE APPLICATION OF ALEXANDER
Claimant

v 

ISLEWORTH CROWN COURT
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr T Pedru (instructed by Veja and Company) appeared on behalf of the Claimant
Mr A Smith (instructed by Crown Prosecution Service Harrow) appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE WYN WILLIAMS:  On 24th December 2008, Mr Justice Flaux was asked to grant urgent interim relief in a proposed application for judicial review of a decision of His Honour Judge Kathkuda given on 17th December 2008 at the Isleworth Crown Court.  The decision in question was to the effect that the custody time limits in respect of the claimant, Mr Irvine Alexander, be extended from 21st December 2008 to the 16th March 2009.  Mr Justice Flaux refused to grant urgent relief.  He did, however, order that there be an expedited hearing of the permission application with the substantive hearing to follow immediately should permission be granted.  As my Lord has just indicated this is a case in which I consider it is appropriate to grant permission and we have heard submissions from counsel for the claimant on the basis that we always intended to grant permission and deal with the substantive application.  
2.	The relevant factual background is as follows.  On 20th June 2008, a woman by the name of Charlotte Adams was the victim of a robbery.  At the time of the alleged offence she was standing outside a night club in or near Kingston.  She was approached by two young men, one of whom punched her to the face and her Rolex wristwatch was stolen.  It is alleged by the Crown that the claimant was one of the two men involved in this offence.  It appears that he was arrested and charged comparatively shortly after the alleged offence had been committed.  I say that because on 23rd June 2008, a hearing took place before the Kingston Magistrates' Court and an order made at that court transferring the case to the Kingston Crown Court.  As it happens in June of 2008, the claimant was on bail for an offence of wounding with intent; the date of that alleged offence was 6th June 2005.  For reasons which are unexplained, and do not need to be explained in this claim, the wounding with intent case had not been resolved despite the fact that it had occurred three years before.  Apparently however, in 2007 the claimant had entered a not guilty plea in relation to the offence of wounding with intent at the Isleworth Crown Court.  
3.	By the spring of 2008, doubts had arisen about whether the claimant was in fact fit to plead in relation to the section 18 offence.  On 14th April 2008, the case was put in the warned list for the 7th July, subject to it not requiring a fitness to plead hearing.  On the same date, the 13th October 2008 was fixed as the date in the event that a contested hearing as to fitness to plead was required.  On 14th July 2008 a psychiatric report, prepared on behalf of the claimant by a Professor Barnes was served both on the prosecution and the court.  The court was also informed that a second report by a duly approved medical practitioner would follow.  
4.	On or about the 14th July, the fitness to plead hearing was confirmed for 13th October 2008.  It was at about this time too that the prosecution indicated that it would require its own medical evidence.  Apparently, a letter was written by the Crown Prosecution Service on 24th July 2008 to the solicitors acting on behalf of the claimant requesting the claimant's consent to a medical examination.  I understand that the claimant gave his consent and this was communicated to the prosecution on 7th August 2008.  
5.	Meanwhile, as I have said, the alleged robbery offence had been committed.  At the hearing in the Magistrates' Court on 23rd June the claimant had been remanded in custody.  On 17th July, a preliminary hearing took place at the Kingston Crown Court where he was further remanded in custody.  On the 1st September 2008, a plea and case management hearing was scheduled to take place at the Kingston Crown Court.  However, since there was by now a clear possibility that the claimant was not fit to plead, no plea was taken from him on that date.  His case was transferred to the Isleworth Crown Court so that the whole issue of fitness to plead could be considered by that court in relation both to the section 18 wounding offence and the offence of robbery.  
6.	So, in summary at this point, from 7th August 2008, the claimant had given his consent to a medical examination by the prosecution and there was, at the very least, the likelihood that there would need to be a hearing at which the claimant's fitness to plead would be considered.  
7.	I take up the chronology at the end of September.  On 30th September 2008, the claimant's solicitor confirmed that a second medical report would be ready for 7th October.  As I understand it, the court at Isleworth ordered that that report be served by the 8th October.  At that same hearing, which took place on or about the 30th September, the prosecution informed the court that it had not yet commissioned a medical report and stated quite openly that it did not intend to do so until after it received the second report.  Accordingly, the court scheduled a mention hearing for the 10th October so that everyone would know whether the prosecution was accepting the contents of the medical evidence which would by then have been served on behalf of the claimant.  As a matter of fact, the second report was served on 8th October, and as I understand it, like the first report served on behalf of the claimant, it suggested that he was unfit to plead.  
8.	The mention hearing on 10th October 2008 took place and the prosecution applied to adjourn the hearing which had been fixed for 13th October.  It did so on the basis that it wished to instruct its own expert.  The claimant's lawyers objected but the court acceded to the application.  As I understand it, the court fixed a date of 10th November for a hearing on the basis that the prosecution accepted that the claimant was unfit to plead and an alternative date of the 5th December on the basis that the issue was to be contested.  
9.	Yet a further hearing took place on 17th November 2008.  At this hearing, the prosecution said that an expert instructed on its behalf had examined the claimant but that the expert's report had not yet been received.  However, it was anticipated that it would be received in good time for the hearing on 5th December 2008.  
10.	Unfortunately for all concerned, the expert instructed on behalf of the prosecution fell ill; and as I understand it quite seriously ill.  The prosecution first discovered that fact on 26th November 2008 and by that stage no report had been sent by the expert to the prosecution.  It therefore became inevitable that no report would be available for a hearing on the 5th December.  In correspondence sent on 26th November 2008, the prosecution indicated that they were in the process of instructing a new expert.  
11.	The matter was listed for a hearing on 12th December; the hearing on the 5th December had been vacated.  The matter was listed on 12th December specifically to fix a new date for the contested hearing as to fitness to plead.  As to what occurred on the 12th December, it seems to me that the best record is contained in a note of hearing prepared on 22nd December 2008 by Mr Mark McDonald of counsel who then appeared on behalf of the claimant at the Isleworth Crown Court.  His note is short and I quote in full:
"1) This matter was listed for a directions hearing at Isleworth Crown Court in order to fix a date for a fitness to plead hearing.  
"2) On arrival, the matter was called into the list office and both prosecution and defence were asked to consider a date for the hearing.  The prosecution stated that they had difficulty with their psychiatrist as she had been sectioned under the Mental Health Act.  At the time of the hearing they had not instructed another expert. 
"3) The prosecution were not sure when they were would be ready for the hearing and did not have any dates to avoid for their expert.  The list officer gave a date of 2nd March which was accepted by both parties with a further directions hearing to be fixed on 16th February 2009.  
"4) The matter was not called into court."
12.	Two days before that directions hearing the prosecution had made a written application for an extension to the custody time limit.  The application, of course, was in writing and made to the Isleworth Crown Court.  The notice of application specified that the hearing of this application would take place on 15th December 2008.  The notice specified that the need for an extension was due to illness of a necessary witness.  It also specified that the prosecution made the application on the basis that the prosecution had acted with all due diligence and expedition; and a chronology of events was inclosed for the court's consideration.  
13.	For reasons which do not matter, the hearing did not take place on 15th December 2008 but the application was heard by Judge Kathkuda on the 17th December, as I have previously indicated.  The application was opposed by Mr Pedro on behalf of the claimant.  Nonetheless the judge acceded to the application.  The ruling is in the papers before this court and it is comparatively short.  Nonetheless, it seems to me, at the very least, that the judge clearly addressed his mind to the necessary statutory criteria.  In summary, he addressed his mind to whether or not there was a good cause for extending the custody time limit.  He also addressed the issue which is separate and distinct as to whether or not the prosecution had acted with due diligence and expedition.  He concluded that good cause did exist and that the prosecution had acted with due diligence and expedition.  
14.	It is right that I say that one of the reasons upon which the judge reached that conclusion was the fact that on the 12th December there had been an apparent agreement about a listing date for the hearing for the fitness to plead issue.  
15.	Whether or not a person is fit to be tried is determined by a procedure laid down by the Criminal Procedure (Insanity) Act 1964, as amended by subsequent legislation.  Section 4 (6) of that Act provides that: 
"The court shall not determine the issue of unfitness to plead except on the written or oral evidence of two or more registered medical practitioners, one of at least of whom is duly appointed."
16.	In practice, in my experience, this means that it is incumbent upon the defendant in a criminal case to provide evidence from two medical witnesses.  Unless evidence is obtained from two such experts there can be no possibility in reality of a court concluding that a defendant is unfit to plead.  Accordingly, in my experience, it is commonly the case that the prosecution wait to see whether the defendant discloses two medical reports before going to the expense of instructing its own expert.  In effect, that is the practice that was adopted in this case.  It is true that the prosecution obtained the consent of the claimant to obtain a medical examination on the 7th August 2008.  It is also true that thereafter the prosecution did nothing to obtain a medical report until after 8th October 2008.  The prosecution squarely accepts that it took that stance deliberately since it was waiting to see whether the second medical opinion would be produced which supported the view that the claimant was unfit to plead. 
17.	Before this court, Mr Pedro submits that the stance taken by the prosecution, and as I have suggested taken in accordance with what can be regarded as quite usual practice, nonetheless discloses a lack of due diligence and expedition.  He submits that the prosecution should at the very least have made arrangements with a suitably qualified consultant so as to have the consultant examine the claimant at very short notice after a second report was received.  
18.	In my judgment, Mr Pedro is forced to make that submission in effect because of the rather unusual timetable which was laid down in this case for the service of medical evidence.  I say this not in any critical sense, since I am not in a position to judge why this timetable was laid down.  However the plain fact is that the claimant was under no obligation to disclose a second medical report until literally a few days before the date listed for the fitness to plead hearing.  With hindsight, at the very least, that seems to me to have been at the heart of what went wrong since, in my judgment, it was clearly impractical that the prosecution could obtain and then provide a medical report in the space literally of a few days.  
19.	At the heart of this case is a judgment about whether the practice of waiting for two reports to be obtained and served on behalf of the defendant, before the prosecution instructs its own expert, is one which should be condoned by this court in the context that I am now considering.  In my judgment, and in general terms it is a practice which can be condoned.  There may be circumstances which are unusual or which might need further exploration in a particular case which militates again the practice.  However, there is a considerable saving in cost if the practice which I have outlined is adopted by the prosecution.  Futher, there is the distinct possibility that if two medical reports are obtained from reputable doctors the prosecution will decide not to contest the issue.  It seems to me that there are many cases, and this is one, in which the prosecution act perfectly properly where they adopted the practice as they applied in this case.  In this context I mean that they act with due diligence and expedition even if they decide to wait for the service of two medical reports.  For my part, I would not be prepared to say that the prosecution acted without due diligence and without due expedition at any point in time up to the middle of October 2008.  
20.	What happened thereafter was obviously unfortunate.  The prosecution instructed a consultant psychiatrist who in the normal course of events would have been able to produce a report and give evidence on 5th December 2008.  I note that had a hearing taken place within such a time scale, it would have been within the custody time limit.  Unfortunately, at a crucial moment in time, namely between middle and late November, the consultant fell ill.  In my judgment, it cannot be the case that the prosecution can be categorised as acting without due diligence or with expedition on account of that very unusual occurrence.  
21.	At the hearing before Judge Kathkuda, he had to consider, in effect, the history as related to him up to and including the date when he was asked to extend the custody time limit.  It may be that some degree of criticism could be levelled at the prosecution in the sense that apparently between 26th November 2008 and the date of the hearing before the judge they had not actually instructed a new expert.  However, one has to be realistic about the speed with which one can instruct a suitably qualified expert.  Expert witnesses have to anticipate that they can attend court.  In the very nature of things, they have to be given at least a trial window, if not a date, when they will be expected to attend.  Instructing an expert without knowing whether or not he or she is available for a trial window or date is fraught with danger.  It does not seem to me that it was in any sense unreasonable for the prosecution to wait to see when the fitness to plead hearing might take place, before instructing an expert.  In that way, they would ensure that the expert was available for a hearing and that would likely serve the interests of justice better than simply dashing off to instruct an expert not knowing whether he or she was available to give evidence.  
22.	In my judgment, therefore, the short period of time which elapsed between 26th November 2008 and the 15th or 17th December 2008, where no expert was instructed, cannot be categorised as a period when the prosecution was failing to act with due diligence or expedition.  In the circumstances, for my part, I consider that Judge Kathkuda was entitled to extend the custody time limits in the way that he did, and I would dismiss the substantive application.  
23.	As I have said, in his ruling, Judge Kathkuda does refer to the fact that there was an apparent agreement as to a hearing date for the contested issue in early March; and he took that into account in reaching his decision.  For the avoidance of doubt, I accept that the fact that the parties may have agreed that date did not mean that the claimant was either giving an express or implied consent to the extension of the custody time limit.  Nonetheless, in my judgment, the learned judge did not go as far as to suggest that such an agreement had taken place.  All he did, in my judgment, was to take into account the projected hearing date in deciding whether or not the custody time limit should be extended.  Whether or not strictly he should have done that in the sense of looking to the future as opposed to judging what had occurred in the past may be {"?}to some doubt; but for reasons I have sought to explain, there was substantial material before the judge upon which he could properly conclude that the prosecution had acted with due diligence and expedition.  
24.	For those reasons I would dismiss this application.
25.	LORD JUSTICE MAURICE KAY:  It is regrettable that the criminal proceedings against the claimant remain unfinished.  However, I too am satisfied that the problem in this case has not been a lack of due diligence or expedition on the part of the prosecution.  
26.	For the reasons given by my Lord, I too would dismiss this application.
27.	LORD JUSTICE MAURICE KAY:  Mr Pedro, do you need an order of any kind for your costs? 
28.	MR PEDRU:  My Lord, I would ask for the costs.
29.	LORD JUSTICE MAURICE KAY:  What is the nature of your funding?  It is a criminal matter.
30.	MR PEDRU:  My Lord, there was an application made for funds which was granted for preparation for the application, but none beyond that point my Lord.
31.	LORD JUSTICE MAURICE KAY:  So, you are not covered by any public funding today.
32.	MR PEDRU:  I do not believe so, my Lord, no.   
33.	LORD JUSTICE MAURICE KAY:  Well, I am not sure that there is anything we can do about that, is there?  You have a certificate of some sort presumably for the preparatory work.
34.	MR PEDRU:  Yes, my Lord.
35.	LORD JUSTICE MAURICE KAY:  Were you refused a certificate to cover the hearing? 
36.	MR PEDRU:  My Lord, that was an emergency application.  I must confess I do not believe that any further applications were made, but that is something that I can make inquiries with my instructing solicitors.
37.	LORD JUSTICE MAURICE KAY:  We order an assessment pursuant to whatever certificate you have but we are not able to assist you further than that.
38.	MR PEDRU:  I am grateful, my Lord.
39.	LORD JUSTICE MAURICE KAY:  I thank you both very much.