S [2019] EWCA Crim 1728
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In allowing an appeal by the prosecutor against the discharge of a restraint order, the court give guidance on how to approach the test expressed in section 42(7) of the 2002 Act.
“An application to vary or discharge made under s.42(3) and (5) in terms connotes that the court has a discretion as to whether to discharge or vary. However, s.42(7) operates on a different basis. For that – as does s.41(7B) – stipulates that, if the relevant condition in s.40 which was satisfied was that an investigation was started, then the court must discharge the order if within a reasonable time proceedings for the offence are not started. So in such a situation no residual discretion is available: discharge is mandatory.
it is a general principle that the powers of the court in this regard, for the purposes of the 2002 Act, are to be exercised by reference to the matters set out in s.69(2) of the 2002 Act: the “legislative steer”, as it is often called. But those matters are necessarily subordinated, where proceedings are not started within a reasonable time, to the provisions of s.42(7) themselves: for in such a scenario, where it is adjudged to arise, the court is not exercising a power but is under a statutory obligation to discharge.
What, then, is the required approach to the evaluation of whether or not proceedings have been started within a reasonable time?
In our judgment, the words of the sub-section are to be taken as they are found. They are not to be glossed. Nor is it helpful (indeed it is likely to be unhelpful) to seek to invoke allegedly comparable phrases in other statutes.
Just what those circumstances are, and the weight to be ascribed to them, will necessarily vary from case to case. It is not possible to identify by way of exhaustive list just what the relevant circumstances will be in every case. But in the ordinary way, we suggest, the following, in no particular order, at least will usually be likely to be relevant (there may of course, we stress, be others in any given case) where s.42(7) is under consideration:
(1) The length of time that has elapsed since the Restraint Order was made;
(2) The reasons and explanations advanced for such lapse of time;
(3) The length (and depth) of the investigation before the Restraint Order was made;
(5) The nature and complexity of the investigation and of the potential proceedings;
(6) The degree of assistance or of obstruction to the investigation.
It is the obligation of the judge to evaluate all the relevant circumstances of the particular case in reaching his or her judgment as to whether or not proceedings have been started within a reasonable time. If they are adjudged not to have been started within a reasonable time then the Restraint Order must be discharged; and accordingly the consequences flowing from such discharge are then irrelevant.”
Dyer v Watson [2004] 1 AC 379, [2002] UKPC D1, [2002] 3 WLR 1488
Lloyds Bowmaker Ltd v Britanni a Arrow Holding s plc [1988] 1 WLR 1337
Waya [2012] UKSC 51, [2013] AC 294
Richards and Others [2015] EWCA Crim 1941
W [2016] EWCA Crim 1938