No One Expects the Inquisition?  

Sofia Napolitano considers the decision in R (on the application of Damji) v The Crown Court at Wood Green.

Introduction

Last year, Farah Damji (the “Claimant”) faced proceedings in the Crown Court at Wood Green. Her custody time limits (“CTLs”) were extended several times. Eventually, she sought judicial review on the basis that the prosecution had not acted with due diligence and expedition, and that this was what had caused the delay. The Administrative Court found against her, stating that “the overriding objective is not one-sided” and maintaining, in what is on one view a bold proposition in an adversarial system, that the Claimant should have “co-operated with the Crown” to progress the case (at [71]).

Although it primarily relates to CTLs, the ruling also sets out more generally the approach that criminal defendants are expected to take during proceedings. In fact, the Administrative Court confirmed that “gone are the days where criminal defendants are permitted to await all the prosecution’s disclosure and then respond to it” (at [71]). Imposing requirements on criminal defendants to actively cooperate with the prosecution to identify issues in the case against them marks a shift towards a more inquisitorial system. However, because our criminal justice system ultimately remains adversarial, this shift is problematic for defendants.

Background

The Claimant met Nigel Gould-Davies (the “Complainant”) online and started a romantic relationship with him. Shortly after, the Claimant began sending the Complainant and his employer abusive and defamatory messages under various pseudonyms. In due course the relationship broke down, and when the Complainant later realised the Claimant was responsible for the abuse, he reported her to the police. When the Claimant was arrested, she was found with the Complainant’s missing passport. As was her right, she answered ‘no comment’ to all the questions put to her during her interview. She provided two prepared statements, but these were “very carefully worded and not designed to illuminate” (at [78]) and did not address the specific messages and emails attributed to her by the investigation: “there was a deafening silence as regards the principal evidential matters founding Count 1” (at [78]). 

The Claimant was eventually charged. The allegations were that (i) she stalked the Complainant contrary to sections 4A(1)(a)(b)(ii) and 5 of the Protection from Harassment Act 1997, (ii) she stole a passport belonging to the Complainant contrary to section 1 of the Theft Act 1968, and (iii) she fraudulently used the Complainant’s credit card contrary to section 1 of the Fraud Act 2006 (on no less than two occasions, resulting in two counts).

On 13 March 2024, the Claimant appeared before Highbury Corner Magistrates’ Court, the matter was sent to the Crown Court at Wood Green, and she was remanded in custody. On 10 April 2024, she entered a not guilty plea, and her trial was scheduled to start on 4 November 2024. While this was outside of the initial CTLs of 11 September 2024, it was scheduled at the request of the defence to accommodate the availability of the Claimant’s counsel.

On 22 April 2024, the Claimant was admitted to hospital for surgery for her breast cancer. She was discharged from hospital on 25 July 2024. Shortly after, the Claimant requested that the officer in the case investigate and provide certain telecoms data. The prosecution never disclosed this data and, when the matter was listed on 4 September 2024 to extend the CTLs, the Claimant did not raise this as an issue. On 17 September 2024, the Claimant filed her defence statement, some eight weeks after her discharge from hospital, in which she requested the metadata of all the abusive and defamatory messages that the prosecution relied on. On 17 October 2024, the prosecution provided some telecoms data, but indicated that they couldn’t provide all the requested data. Pre-trial reviews took place on 29 October and 5 November 2024, at which the prosecution confirmed that they were ready for trial. At these hearings, the Claimant sought an adjournment so that she could instruct an expert to examine the telecoms data received.  The trial was put back to 11 November 2024.

On 8 November 2024, following a lot of correspondence back and forth on the requested disclosure over the preceding seven weeks, the prosecution applied for a further extension of the CTL. The Claimant opposed it on the basis that the prosecution had failed to disclose the requested data on time. In hearings on 11 and 14 November 2024, HHJ Greenberg KC acceded to the defence request to adjourn the trial for the instruction of an expert, and extended the CTLs to 14 February 2025 with a further pre-trial review on 7 February 2025 and set the trial to start on 7 April 2025, on the grounds that (i) the prosecution had acted with due diligence and expedition, (ii) the prosecution was under no obligation to provide the requested data prior to the Complainant filing her defence statement, (iii) the Complainant’s disclosure requests and her decision to instruct an expert to analyse the data received were what delayed the trial, and (iv) the prosecution was otherwise ready for the trial.

The trial eventually went ahead, and, on 7 May 2025, the Claimant was found guilty of all four offences. The Claimant was sentenced to six years’ imprisonment (HHJ Greenberg KC’s remarks are available here).

Judicial Review

When HHJ Greenberg KC extended the CTLs to 14 February 2025, the Claimant sought judicial review on the basis that her reasoning was flawed. In particular, she claimed that HHJ Greenberg KC failed to consider (i) the chronology of the investigation and case preparation, (ii) the importance of the requested data, and (iii) the fact that disclosure was still incomplete at the time of the application to extend the CTLs.

The Administrative Court ultimately refused the Claimant’s application for judicial review. Because the Claimant answered ‘no comment’ to all the questions put to her during her interview, the prosecution had been in the dark as to the real issues in the case until the Claimant filed her defence statement. The Administrative Court did not accept that it was “incumbent on the prosecution to anticipate arguments that the Claimant might advance in due course, or pursue lines of enquiry out of an abundance of caution” (at [79]).

When the defence statement was eventually filed, it contained relatively demanding requests for disclosure. Although the prosecution did not fulfil these requests by the deadline, the Administrative Court maintained that HHJ Greenberg KC was “entitled to conclude that the nature and volume of the disclosure sought rendered strict compliance with the timetable unrealistic” (at [80].)

The Administrative Court found that the delay which led to the extension of the CTLs was wholly caused by the Claimant’s (i) late particularisation of her case in the defence statement, (ii) extensive disclosure requests, and (iii) decision to instruct an expert to analyse the data received.   HHJ Greenberg KC’s decision to extend the CTLs was not, therefore, perverse.

Significance

Although our criminal justice system obviously remains adversarial, the Administrative Court’s ruling represents a shift towards a more inquisitorial system. It establishes that criminal defendants are expected (i) to cooperate with the prosecution, (ii) to raise objections as soon as possible once a relevant deficiency in the prosecution’s case has come to light, and (iii) not to wait for the prosecution to provide all the disclosure before they respond to it.

In a purely inquisitorial system, the judge conducts an extensive investigation to try and determine the facts of the case and does not simply act as a ‘referee’ between the prosecution and the defence. The judge objectively examines the evidence, and questions the witnesses. Throughout this process, criminal defendants are expected to cooperate fully in order to obtain as fair an outcome as possible.

The Administrative Court’s ruling appears to try to incorporate one element of the inquisitorial system (i.e., that criminal defendants must cooperate fully and proactively) into the current adversarial system. It essentially obliges criminal defendants to engage in proceedings in a way that may ultimately strengthen the prosecution’s case against them, rather than in a way which helps uncover the true facts of the case. The result is an adversarial system that is heavily weighted in favour of the prosecution, and one that is therefore more likely to lead to miscarriages of justice.

Conclusion

This is an interesting development, as it imposes one aspect of the inquisitorial system on the current adversarial system in a way which helps the prosecution, rather than as a means to uncover the truth as part of an impartial process. Even if the delay is to some extent caused by the prosecution, the judge is allowed to extend the CTLs. This may well lead to (i) an increase in guilty pleas ahead of trial as defendants spend more and more time on remand, and (ii) an increase in convictions, as the prosecution is able to strengthen their case ahead of trial with help from the defence.   

For legal practitioners, this is a reminder that, even in circumstances where the defendant is suffering from serious health conditions, they must actively engage in the proceedings, file a compliant defence statement, and raise any issues with the prosecution’s disclosure (or lack thereof) as soon as possible. If they don’t, and the start of trial is delayed as a result, the judge will extend the CTLs, and the defendants will ultimately spend more time on remand.