Chapter 3: Bail. Chapter 3.2: Adjournments (pp )

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1 Chapter 3: Bail Chapter 3.2: Adjournments (pp ) In Visvaratnam v Brent Magistrates Court [2009] EWHC 3017 (Admin); (2010) 174 JP 61, Openshaw J (at [18]) said that the prosecution must not think that they are always allowed at least one application to adjourn the case. His Lordship added (at para 19), that there is a high public interest in trials taking place on the date set for trial, and that trials should not be adjourned unless there is a good and compelling reason to do so An improvement in timeliness and the achievement of a more effective and efficient system of criminal justice in the Magistrates' Court will bring about great benefits to victims and to witnesses and huge savings in time and money. In Balogun v DPP [2010] EWHC 799 (Admin); [2010] 1 WLR 1915, the defendant s conviction was quashed because the magistrates court had agreed to a request for an adjournment from the prosecution without submitting the application to the rigorous scrutiny required by Lord Bingham CJ (as he became) in R v Hereford Magistrates' Court ex p Rowlands [1998] QB 110, at 127G. Leveson LJ (at [32]) said that challenges to such a decision will be difficult to mount and should only be commenced if the circumstances are exceptional. If brought, however, an application for judicial review must be pursued as a matter of extreme urgency - within days rather than weeks so as not to affect the continued progress of the case if the single judge (who will also consider the case as a matter of urgency) determines that permission should not be granted. If permission is granted, interim relief can be granted to prevent the continued prosecution while the matter is being investigated. In R (DPP) v Lancaster Magistrates Court [2010] EWHC 662 (Admin); (2010) 174 JP 320, the Divisional Court considered the role of the justices clerk/court legal adviser in the granting of adjournments. Foskett J (at [30]) said: it is clear from paragraph 7 of the Schedule to the Justices' Clerks Rules 2005 that a Justice's Clerk or a duly authorised assistant may sanction the adjournment of a case where both parties agree. It does not, however, mean that such a person has the power to refuse an adjournment simply because one party objects. Since questions of adjournment essentially involve the exercise of a judicial discretion, where there is no agreement about adjourning a case, the application for the

2 adjournment should be listed before the Magistrates for consideration which is where the true exercise of the relevant judicial discretion lies. Chapter : Grounds for refusing bail (pp ) Section 114(2) of the Coroners and Justice Act 2009 amends para 6 of Part 1 of Schedule 1 to the Bail Act 1976 by inserting a para 6ZA: If the defendant is charged with murder, the defendant may not be granted bail unless the court is of the opinion that there is no significant risk of the defendant committing, while on bail, an offence that would, or would be likely to, cause physical or mental injury to any person other than the defendant. Section 114(3) adds an additional sub-paragraph (e) to para 9 of that schedule (matters to which the court is to have regard when taking decisions about granting bail): (e) if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail, the risk that the defendant may do so by engaging in conduct that would, or would be likely to, cause physical or mental injury to any person other than the defendant. Section 115 of the 2009 Act restricts the granting of bail in murder cases. It provides: (1) A person charged with murder may not be granted bail except by order of a judge of the Crown Court. (2) Ss (3) and (4) apply where a person appears or is brought before a magistrates court charged with murder. (3) A judge of the Crown Court must make a decision about bail in respect of the person as soon as reasonably practicable and, in any event, within the period of 48 hours beginning with the day after the day on which the person appears or is brought before the magistrates court. (4) The magistrates court must, if necessary for the purposes of subs (3), commit the person to custody to be brought before a judge of the Crown Court....

3 (6) In this section a reference to a person charged with murder includes a person charged with murder and one or more other offences. (7) For the purposes of subsection (3), when calculating the period of 48 hours Saturdays, Sundays, Christmas Day, Good Friday and bank holidays are to be excluded. Sch. 11 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012: adds a new para, (1A), to provide that, where the defendant has attained the 18 and has not been convicted of an offence in the proceedings, certain provisions in Sch. 1, Pt 1, will not apply if it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence in the proceedings. The provisions made inapplicable in such a case are: para 2 (failure to surrender to custody, committing offences on bail or interfering with witnesses), para 2A (defendant alleged to have committed present offence while on bail) and para 6 (defendant arrested under s 7). amends para 2(2) to provide that, where the defendant falls within para 6B (drugs offences), para 2 does not apply unless either the court is of the opinion that there is no significant risk of the accused committing an offence while on bail (para 6A), or arrangements for conducting an assessment or follow-up assessment have been made. adds a new para, (2ZA), to provide that a defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that, if released on bail, he would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person (as defined by the s 62 of the Family Law Act 1996), or cause an associated person to fear physical or mental injury. substitutes a new version of para 2A, to provide that a defendant need not be granted bail if the offence is an indictable one (this includes either-way offences) and it appears to the court that the defendant was on bail in criminal proceedings on the date of the (alleged) offence. There is also a new version of para 6, to provide that a defendant need not be granted bail if, having previously been released on bail in connection with the proceedings, he has been arrested under s 7. Case law:

4 In R(F) v Southampton Crown Court [2009] EWHC 2206 (Admin), the judge refused to grant bail because he was not sure the accused would turn up or stay out of trouble. On appeal, Collins J (at [3]) notes that the correct test is that contained in the Bail Act, s 4(4), applying sch 1; this requires the judge to have substantial grounds for believing that the defendant before him would fail to surrender, commit offences on bail, or transgress one of the other provisions in sch 1. The judge had therefore applied the wrong test. As Collins J said (at [8]), It is not a question of him not being sure that the defendant would turn up or stay out of trouble, but he was only entitled to refuse bail if there were substantial grounds for believing that he would breach, he would fail to turn up or would commit further offences. The case was therefore remitted to the Crown Court for reconsideration. In R (R) v Snaresbrook Crown Court [2011] EWHC 3569 (Admin), the Crown Court judge withheld bail on the basis that a custodial sentence was inevitable. On the refusal of bail because of the likelihood of a custodial sentence, Holman J (at [24]) said that of itself, the mere fact that a person has been convicted and a custodial sentence is inevitable, is not sufficient to trigger the exception to bail. It still is necessary that the court is satisfied that there are substantial grounds for believing that one of the statutory exceptions [to the presumption in favour of bail] applies. This point is reiterated at [31], where his Lordship said that, even the inevitability of a custodial sentence is not itself an exception to the right to bail, unless it justifies a court being satisfied that there are substantial grounds for believing that the defendant would fail to surrender to custody. A similar case is R (Shehzad) v Newcastle Crown Court [2012] EWHC 1453 (Admin). The Crown Court judge had said that the defendant had every reason to fail to surrender, there is the possibility of further offences and there is a risk of interference with witnesses, principally of course the principal witness for the prosecution. In those circumstances I refuse his application for bail. An application for judicial review was made on the basis that the phraseology of the ruling suggested that the learned judge had applied a lower threshold of satisfaction in relation to the various matters that can operate as a basis for refusing bail than the statute provides, namely that there must be substantial grounds for believing that there would be a failure to surrender, the commission of other offences and so on. Foskett J (at [10] and [11]) said that the judge was extremely experienced judge, and one who applied the statutory test on an almost daily basis. He was therefore very unlikely to have misapplied the usual approach to decisions of this nature. However, it was right that the defendant should have his case assessed by the correct statutory formulation ; the refusal of bail was therefore quashed and the matter remitted to the Crown Court to be dealt with by another judge. Chapter : Juveniles (pages )

5 By virtue of amendments made by Sch. 11 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, for the purposes of bail, a young person means someone under the age of 18 (instead of 17). This brings the law of bail into line with other areas so far as the meaning of young person is concerned. Chapter 3.4.3: Summary offences (p 153) Sch. 11 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 makes a number of amendments to Part IA of sch 1 to the Bail Act 1976 (not in force at the time of writing). A new para, 1A is added, to provide that, where the defendant has attained the 18 and has not been convicted of an offence in the proceedings, certain provisions in Part IA, will not apply if it appears to the court that there is no real prospect that the defendant will be sentenced to a custodial sentence in the proceedings. The provisions made inapplicable in such a case are: para 2 (failure to surrender to custody), para 3 (committing offences while on bail) and para 7 (defendant arrested under s 7). The 2012 Act also amends para 4 of Part IA, to provide that a defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail, would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person (as defined by s 62 of the Family Law Act 1996), or cause an associated person to fear physical or mental injury. Chapter 3.4.4: Non-imprisonable offences (p 154) Sch. 11 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 makes a number of amendments to Part II of sch. 1 to the BA Para 2 is amended to provide that a defendant need not be granted bail if he is under the age of 18 or has been convicted of an offence in those proceedings and, having been previously granted bail in criminal proceedings, he has failed to surrender to custody and the court believes, in view of that failure, that the defendant, would fail to surrender to custody. Para 5 is amended to provide that a defendant need not be granted bail if he is under the age of 18 or has been convicted of an offence in those proceedings, and he has been arrested under the s 7 of the Bail Act, and the court is satisfied that there are substantial grounds to believe that he would fail to surrender to custody, commit an offence on bail, or interfere with witnesses or otherwise obstruct the course of justice. The LASPOA 2012 also adds a new para 6 to Part II. This provides that a defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail, would commit an offence while on bail by engaging in

6 conduct that would, or would be likely to, cause physical or mental injury to an associated person (as defined by s 62 of the Family Law Act 1996), or cause an associated person to fear physical or mental injury. Chapter 3.5.4: Breaking conditions of bail (pp ) In R v Rowland (Court of Appeal, 14 February 1991), cited in R (Gangar) v Leicester Crown Court [2008] EWCA Crim 2987, Hobhouse J said that Section 7 does not create any offences: it merely gives a power of arrest and provides for the court before whom he is brought to deal with the person and grant or refuse further bail in the light of what has happened. There is a power to arrest on suspicion and in respect of anticipated breaches, not merely breaches that have already occurred. A mere failure to comply with the conditions of bail is not itself a statutory offence, nor is it itself without more a contempt of court There may be cases where the breach of a bail condition could also be a contempt of court or some other offence [I]t is important to stress that a mere breach of the terms of bail does not without more not amount to a criminal contempt of court. It does not amount to a criminal offence in itself Similarly, in R v Ashley [2003] EWCA Crim 2571; [2004] 1 WLR 2057 (also cited in Gangar), Rose LJ (at [10]) said that if the conduct breaching bail is known about,... the bail of the defendant can be revoked. Furthermore, there may well be cases... in which the breach of bail condition does give rise to a further offence, constituting an interference with the administration of justice, for example, by discouraging a witness from attending trial. Sch. 11 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 adds a subs. (5A) to s. 7, to provide that a magistrate cannot withhold bail under s. 7 where the person has attained the age of 18, was released on bail in criminal proceedings, and has not yet been convicted in those proceedings, if it appears to the magistrate that there is no real prospect that the person will be sentenced to a custodial sentence in the proceedings.

7 Chapter 3.6: Sureties In S v Winchester Crown Court [2013] EWHC 1050 (Admin), Kenneth Parker J ruled that surety should be provided only to secure surrender to custody and not to secure performance of any other condition (see [24] and [38]). Chapter 3.7: Repeated bail applications (pp ) In R (B) v Brent Youth Court [2010] EWHC 1893 (Admin), there had been two bail applications to the magistrates and one at the Crown Court; the defence sought to make a further application to the magistrates on the basis, inter alia, of a new set of possible conditions. The magistrates ruled that the possibility of new conditions did not amount to a change of circumstances and that the revised conditions could have been put before the court on a previous occasion; accordingly, they refused to hear the application. This refusal was quashed by the High Court. Wilkie J referred to the sch 1, part IIA, of the Bail Act 1976 saying (at [9]) that the effect of this is that the court is obliged to entertain two bail applications regardless of whether the arguments put forward in the second are arguments which have been advanced previously. But if those arguments are sought to be put forward a third time the court is not obliged to entertain them, though it may do so. But this only applies to the extent that arguments put forward as to fact or law are arguments which the court has heard previously. His Lordship went on to say this is almost invariably referred to as the change of circumstance condition but that this phrase does not accurately reflect the statutory provisions. His Lordship noted that these provisions were apparently designed to give statutory expression to what had been said by the Court of Appeal in R v Nottingham Justices ex p Davies [1981] 1 QB 38 (in particular, the passage starting at p 44F) and so, at [16], his Lordship concluded that the mere fact that a suggested condition could have possibly been put forward before but had not been is not an argument for concluding that there was no statutory obligation to consider it the question is a little wider than

8 "Has there been a change?", it is "Are there any new considerations which were not before the court when the accused was last remanded in custody?". Thus, the test to be applied is the new considerations test from the Nottingham Justices case (not necessarily the same thing as a change of circumstances ). Wilkie J also ruled that the requirement imposed by s 44 of the Children and Young Persons Act 1933, to have regard to the welfare of a defendant under the age of 18, requires the court to consider whether, notwithstanding the restrictions on repeated bail applications contained in part IIA of the 1976 Act, it should nonetheless consider substantively a further bail application in order to have regard to the welfare of the defendant. Thus, for juveniles the restrictions on hearing repeated bail applications may be trumped by the statutory welfare principle. Chapter 3.8: Bail and the European Convention on Human Rights (pp ) In R (Fergus) v Southampton Crown Court [2008] EWHC 3273 (Admin), Silber J, at [19], referred to R (Thompson) v Central Criminal Court, a decision given on 6 October 2005, where Collins J (at [10]) had said: The approach under the Bail Act is entirely consistent with the approach which the European Court has regarded as proper under Article 5, namely there must be a grant of bail unless there are good reasons to refuse. The approach therefore really is not should there be bail granted but should custody be opposed, that is, is it necessary for the defendant to be in custody. That is the approach that the court should take. Only if persuaded that it is necessary should a remand in custody take place. It would be necessary if the court decides that whatever conditions can be reasonably imposed in relation to bail there are nevertheless substantial grounds for believing that the defendant will either fail to surrender to custody, commit an offence, interfere with witnesses or otherwise obstruct justice. Silber J concluded (at [21]) that certain consequences flowed from this:

9 First, it is not reasonable for a court to withdraw bail unless it is necessary to do so especially as any decision to withdraw bail engages rights under Article 5. Second, any such reason justifying the decision to withdraw bail must be stated by the decision maker explaining why bail should be withdrawn and that reason must relate to the facts. Such a reason must be more than merely reciting that one of the statutory grounds has been made out. The underlying facts have to be put forward. In the present case, the judge had been wrong to withdraw bail from an accused who had been on bail for more than four months, had complied with all reporting and residence conditions of bail, and had surrendered to bail when required to do so. Chapter 3.9.1: Record of reasons (p 177) In R (R) v Snaresbrook Crown Court [2011] EWHC 3569 (Admin), Holman J considered the duty, under s 5(3) of the Bail Act 1976, to give reasons for withholding bail. His Lordship said (at [21] that such reasons had to extend to a minimum reasonable level of adequacy, and had to identify the ground or grounds upon which the court was satisfied that bail should now be refused, and with a minimum level of adequacy identify the case specific reasons for being so satisfied. His lordship added that, although the Bail Act does not say so in terms, before any court makes a decision as to bail (and especially a decision withdrawing bail which had previously been granted), it must give to that person or his advocate a fair opportunity to make submissions. Chapter : Jurisdiction of High Court (pp ) In R (R) v Snaresbrook Crown Court [2011] EWHC 3569 (Admin), Holman J at [7] stressed that the circumstances in which the High Court can consider bail are now very limited and circumscribed and that the only context or framework in which it can still give consideration to bail is that of judicial review on normal judicial review criteria. His Lordship added that the High Court must be very sparing before it interferes with any decision within the Criminal Justice System with regard to bail. Holman J then went on to consider the appropriate remedy, saying (at [29]) that the High Court:

10 must be very especially sparing before, in the course of a trial itself, it substitutes its own decision as to bail for that of the judge conducting the trial. If this court considers, as I do, that there has been significant procedural error, it should remit the substantive issue of bail for reconsideration by the judge, who is currently conducting this case in the Crown Court, unless this court can properly conclude that no reasonable judge, properly directing himself, could have withdrawn or could now withdraw bail (subject to any appropriate conditions or varied conditions). If I am satisfied that not only this judge, but no judge acting reasonably and lawfully, could fail to grant bail (subject to any appropriate conditions), then it is no more than a waste of time and expense to remit the matter to the Crown Court. If, however, there is still room for a discretionary decision to withdraw bail, then that is a decision which should be made by the Crown Court judge, but after hearing submissions on behalf of the claimant and possibly the prosecution. It is also questionable whether judicial review ought to have been granted given in this case, that the bail decision was made after the start of the trial on indictment and so the prohibition on judicial review under s 29(3) of the Senior Courts Act 1981 may well be applicable. In R (Uddin) v Crown Court at Leeds [2013] EWHC 2752 (Admin) it was held that s 29(3) of the Senior Courts Act 1981 prevents a judicial review challenge to a decision by a trial judge during a trial to revoke bail of a defendant. Chapter : prosecution appeals against grant of bail (pp ) In Allen v United Kingdom (Application no /06) [2010] ECHR 420, the applicant was not allowed to attend the hearing of the prosecution's appeal against her being granted bail. The ECtHR ruled that this amounted to a breach of Article 5 4 (entitlement to take proceedings by which the lawfulness of detention shall be decided speedily by a court and release ordered if the detention is not lawful). The Court considered of central importance the fact that the relevant domestic law qualifies a prosecution appeal against bail as a re-hearing of the application for bail, thereby entitling the judge hearing the appeal to remand the accused in custody or to grant bail subject to such conditions as he may deem appropriate. The Court ruled that it followed that the applicant should have been afforded the same guarantees at the prosecution's appeal as at first instance and found no evidence of any compelling reasons in the present case which might have rendered the applicant's presence undesirable or impracticable ; indeed it was accepted that the applicant's representatives had made arrangements for her to be present at the court building on the day of the prosecution appeal hearing, and that no inconvenience would have been caused in allowing her to attend ([44]). Having regards to the particular circumstances of the applicant's case..., fairness required that the applicant's request to be present at the appeal be granted ([47]). It followed that there had been a violation of Article 5 4 of the Convention.

11 The Criminal Procedure Rules has since been amended to remove the restrictions on the defendant's right to be present at the hearing of a prosecutor's appeal against the grant of bail. It now provides that: The person concerned shall be entitled to be present at the hearing of the appeal. It should also be noted that, under ss 57A and 57B of the Crime and Disorder Act 1998, the person concerned is to be treated as present in court when, by virtue of a live link direction, that person attends a hearing through a live link. Sch. 11 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 adds two new subsections to s 1 of the 1993 Act. Section 1(1B) provides that where a Crown Court judge grants bail to a person who is charged with (or who has been convicted of) an imprisonable offence, the prosecution may appeal to the High Court against the granting of bail. However, under subs (1C), such an appeal cannot be made where the judge has granted bail in the context of a prosecution appeal under s 1(1). Chapter : The offence of absconding (Bail Act 1976, s 6) (pp ) In R v Leigh [2012] EWCA Crim 621, the Court of Appeal said that failures to surrender to custody are to be taken seriously and a custodial sentence, consecutive to any other sentences imposed should be the starting point. Bail offences not only reflect a disregard for an order of the court but they also can make a serious contribution to delay, cost and inefficiency in the court system (per Treacy J at [8]). Chapter 3.13: Bail custody time limits (pp ) In O'Dowd v UK [2010] ECHR 1324, the European Court of Human Rights observed (at [68]) that: Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention...

12 It follows, said the Court (at [69]), that it falls to the 'national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time'. The Court went on to say (at [70]) that the 'persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices'. At that point, there must not only be 'sufficient' grounds to justify the deprivation of liberty, but the 'national authorities' (i.e. the prosecution) must display 'special diligence' in the conduct of the proceedings. In assessing whether the 'special diligence' requirement has been met, regard must be had 'to periods of unjustified delay, to the overall complexity of the proceedings and to any steps taken by the authorities to speed up proceedings to ensure that the overall length of detention remains "reasonable"'. The Court ruled (at [73]) that the 'due diligence' required by s 22(3) of the Prosecution of Offences Act 1985 (extension of custody time limits), cannot be equated to the 'special diligence' required by Article 5(3). The Court went on to explain that: Unlike the approach of the domestic courts to compliance with the 1985 Act, in assessing compliance with Article 5(3), this Court will examine the proceedings as a whole and assess any particular periods of inactivity or delay by the authorities within the context of the overall period of pre-trial detention, with particular regard to any recognition by the authorities of the length of time already spent in detention and the need to take additional steps to bring about a more speedy trial. The Court found that, in the present case, there had been no breach of Article 5(3). This was largely because the accused had contributed substantially to the overall length of his pre-trial detention (e.g., dismissing his legal advisers shortly before hearings, which resulted in the hearings being postponed). Chapter : Use of live links virtual courts Crime and Disorder Act 1998, s 57A (pp ) Section 106 of the Coroners and Justice Act 2009 amends ss 57B of the Crime and Disorder Act 1998 to empower a single justice to give or rescind a live link direction, thus obviating the need to convene a full court for that purpose (s 57B(7)). Section 57C of the 1998 Act is amended to remove the requirement for the defendant's consent to attendance via a live link for a preliminary hearing in a magistrates court where the defendant is at the police station and to add a requirement that a live link direction may be given only if the court is satisfied that it is not contrary to the interests of justice (s 57C(6A)). Similarly, s 57D is amended so as to remove the requirement for the defendant's

13 consent both to continued attendance via live link and to his giving oral evidence through the live link. Section 106 also amends s 57D of the Crime and Disorder Act 1998 by removing the requirement for a defendant s consent to be sentenced by live link where he has pleaded guilty at a live link preliminary hearing. However, the court has to be satisfied that the defendant continuing to attend through the live link would not be contrary to the interests of justice Section 106 also amends s 57E of the Crime and Disorder Act 1998 by removing the need for the defendant s consent for a live link sentencing hearing where he has previously been convicted of the offence and is in custody. Chapter : Extending custody time limits (pp ) In R (McAuley) v Coventry Crown Court [2012] EWHC 680 (Admin), the Court dealt with delays caused by a shortage of available resources. Sir John Thomas P said: [33]... If in a routine case, where there should ordinarily be no difficulty in the availability of a judge or a physical court room, an issue as to the availability of money by way of sitting day allocation arises, then the case must be referred to the Resident Judge well in advance of any issue arising as to CTL... [34] As the extension of custody time limits involves the liberty of a defendant, the Resident Judge (or his designated Deputy if the Resident Judge is away from the court centre) must be provided with information on a regular basis, so that there can be proper monitoring of cases nearing their CTL... Such information must... include available alternative locations, the availability of judges, the budgetary allocation to the court and other such matters. Provided the experienced listing officer at each court gives the Resident Judge such regular information and there is close co-operation between courts, routine cases should be managed in such a way that money is always available to enable a case being heard within its CTL. It is, of course, essential that bail cases are not delayed and a sufficient budgetary allocation made so that justice is not denied in cases where the defendant is bailed. If more funds or judges are needed at a court centre, then that information must be passed to those responsible for the provision of money who can then review the position with the judges responsible for the listing of cases. It is wrong in principle and contrary to the terms of the Practice Direction for decisions to be made which are not made under the direction of the judges responsible for listing.

14 [35] If, despite such careful management, an application has to be made to extend a CTL in a routine case because the funds by way of allocated sitting days are insufficient to enable the case to be heard within the CTL, then the application must be heard in open court on the basis of detailed evidence. It is clear from ex parte McDonald... that it is for the prosecution to satisfy the court of the need to extend CTL. It must follow that evidence from the senior management of HMCTS must be provided well in advance of the hearing to the defendant and adduced by the CPS to the court. The judge must then subject the application and the evidence to that rigorous level of scrutiny which is required where a trial is to be delayed and a person confined to prison because of the lack of money to try the case. Although other considerations may apply to cases which are not routine, lack of money provided by Parliament in circumstances where the custody time limits are unchanged, will rarely, if ever, provide any justification for the extension of a CTL. If the Ministry of Justice concludes that it does not have sufficient funds for cases to be tried within CTL, then the Secretary of State must amend the Regulations and seek the approval of Parliament. If that is not done, the court has no option but to apply the present CTL and HMCTS must find the necessary money or face the prospect of a person who may represent a danger to the public being released pending trial. [36] The judge hearing the CTL application must give a full and detailed judgment... [T]his court recognises the decision is for the judge, but will scrutinize the matter rigorously. Without a full and detailed judgment, finding the facts and setting out all the considerations, this court cannot do this speedily and economically... [43] In this court, the court will scrutinise the matter rigorously but at the same time recognise the decision is for the judge and unless this court comes to the conclusion that he has wrongly exercised his discretion it will not interfere...

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