Court of Appeal holds that trial delay due to non-availability of prosecutor does not amount to an abuse of process

The recent case of Ng & O’Reilly [2024] EWCA Crim 493 highlights the sorry state of the criminal justice system, particularly the backlog in the Crown Courts and the retention problem the Criminal Bar is having. In a recent National Audit Office report, it was highlighted that there were 67,573 cases outstanding in the Crown Court at the end of December 2023, with 18,045 of those cases (27%) having been outstanding for at least a year. In particular, 1,436 trials were cancelled on the day of the hearing in 2023 due to the unavailability of some or all of the legal professionals required for the hearing. This was up from 71 in 2019; an increase from 0.3% to 5% as a proportion of all trials.

Procedural history

Ms Ng and Mr O’Reilly had been charged with various offences of assault, possession of an offensive weapon and malicious communications, relating to an incident that was alleged to have occurred on 7 March 2022. The case first appeared in the Crown Court for a Plea and Trial Preparation Hearing on 19 April 2022 and the trial was placed in a warned list in the week commencing 7 November 2022. A warned list is usually a two-week period where the trial remains on “standby” in case a Court room becomes available; all parties have to ensure they are available during that two week period in case the trial is called in during that time.

At a hearing on 18 October 2022, the case was removed from that list on the ground it was not in the interests of justice for Ms Ng and Mr O’Reilly to stand trial for this matter until the conclusion of other proceedings. The case was therefore adjourned and placed in the warned list week commencing 3 July 2023.

The case was not listed in the week of 3 July 2023 and adjourned administratively to a warned list commencing 29 January 2024. The Crown Court Judge stated this was due to the Prosecution’s barrister’s availability, although this was unable to be confirmed. However for the purposes of the appeal the Court of Appeal took the position that this was correct.

On Friday 26 January 2024 the chambers of the Prosecution barrister contacted the Court to ask that the case not be listed on Monday 29 January 2024 due to the barrister’s unavailability. The case was then listed on 30 January 2024 as a “backer” trial (again on “standby”) not to commence before noon. On 29 January 2024, the Prosecution wrote to the Court informing it that they had been unable to secure a barrister for 30 January as the original barrister had “an important matter later [that] week”. The Prosecution explained the steps it had taken to try and find someone else, including contacting over 120 other sets of chambers, but had been unable to do so. Further, Mr O’Reilly’s solicitors that afternoon emailed the Court to inform it that he was now in custody and so would need to be produced from prison. The Prosecution’s request for the case not to be listed on 30 January 2024 was refused.

However, on 30 January 2024, there was a trial ahead of Mr O’Reilly’s and Ms Ng’s that went ahead (leaving no time for their trial) and Mr O’Reilly had not been produced from custody. The Judge then set down a timetable for abuse of process arguments, with a hearing to take place on 8 March 2024.

Abuse of process hearing

The abuse of process hearing took place on 8 March 2024. By this point, the Prosecution barrister had explained why they had come to the “difficult decision” on 29 January 2024 that they were obliged to be available for a sentencing hearing with a substantial dispute as to the factual basis of conviction following trial, to be heard on 1 February 2024.

Both Ms Ng and Mr O’Reilly submitted similar arguments, that the failure of the Prosecution to secure the attendance of a barrister when the matter was listed for trial on 30 January 2024 amounted to an abuse of process such that proceedings should be stayed.

The Judge did decide to stay the proceedings as an abuse of process. His view was that the Court had been unable to list the case for trial on three occasions “all because of difficulties caused by the Prosecution” and the hearing on 30 January 2024 had not proceeded “as a direct consequence” of the absence of a prosecutor “despite the attendance of the defendants, their respective advocates and the prosecution witnesses”. He stated it appeared in this case that decisions had been taken at various points that other prosecutions were more important.

The Judge lamented on the regular nature with which such delays/adjournments occur due to the unavailability of barristers to present/defend cases. He stated that the regularity of the situation would not be remedied “unless and until a judge, confronted with the inability of the Prosecution to present its case because of a lack of an advocate, is willing to declare such a situation as unacceptable”. He referred to the right to a fair trial that includes a trial within a reasonable time.

The Judge recognised that staying proceedings as an abuse of process should be a matter of last resort and should not be used to punish the Prosecution for mistakes in the absence of bad faith. “However, if I do nothing, I have absolutely no confidence that the situation will change…”

He stated that it was unfair for a citizen to be forced to wait years to be tried simply because the state was unable to provide a lawyer to prosecute them. The adverse impact of uncertainty on a defendant was often underestimated.

Abuse of process

The power to stay proceedings as an abuse of process is an exceptional one, as the Court of Appeal stated, “exceptional…to be exercised with care and restraint. A stay of proceedings is the exception, not the rule; it is a measure of last resort.”

The Court has the power to stay proceedings in two categories of abuse of process, namely:

1. Where it will be impossible to give the defendant a fair trial; and
2. Where a stay is necessary to protect the integrity of the criminal justice system. This is where it offends the court’s sense of justice and propriety, or public confidence in the criminal justice system would be undermined, for the defendant to be tried in the particular circumstances of the case. The abuse must amount to an affront to the public conscience.

The Court of Appeal was very clear that in respect of the second category, there must have been misconduct by the police and/or Prosecution. There is a two-stage test in respect of this, namely:

1. It must be determined whether and in what respect the prosecutorial authorities have been guilty of misconduct, such as very serious examples of malpractice and unlawfulness (as opposed to simply incompetence or negligence)
2. It must be determined whether such misconduct justifies a stay on the ground of abuse of process. Each case rests on its own circumstances, but the public interest in ensuring those charged with crimes should be tried must be balanced against the competing public interest in maintaining confidence in the criminal justice system.

Unfairness to the defendant is not required, nor should a stay be imposed to punish the Prosecution. The focus must be on whether a stay is appropriate to safeguard the integrity of the criminal justice system.

The Court of Appeal judgment

The Court of Appeal allowed the appeal, ruling that the Crown Court Judge had been wrong to stay the proceedings as an abuse of process.

Firstly, it stated that he was factually incorrect in asserting that the Court had been unable to proceed with the trial on three occasions due to difficulties caused by the Prosecution. There were only two occasions where the delays could be attributed to the Prosecution: July 2023 to January 2024 (six months) and 29 to 30 January 2024 (a day).

In respect of the first limb of abuse, they confirmed that there was rightly no finding that a fair trial in the future (regardless of when this would be) was impossible.

In respect of the second limb, the Court of Appeal concluded that there was no conduct by the Prosecution that could justify a stay. The Crown Court Judge himself had conceded that there did not appear to be deliberate bad faith. The Court of Appeal went on to say that the Judge had failed to carry out the necessary balancing exercise. “Rather, the judge’s approach was to focus on the Respondents and to punish the CPS in the hope that lessons would be learned and the situation improved. What he should have done is to balance the public interest in ensuring that those charged with crimes should be tried against the competing public interest in maintaining confidence in the criminal justice system and not giving the impression that the end will always be treated as justifying any means.”

The Court concluded that there was no justification for the Judge taking the exceptional step of staying the proceedings for abuse of process. The Court therefore reversed the ruling to stay the proceedings on the basis that “It was based on mistakes of fact; involved an error of law and principle and was a ruling that it was not reasonable for the judge to have made.” The Court ordered the resumption of proceedings in the Crown Court, with the case to be listed as a fixed trial on the first available date.

Guidance

The Court of Appeal thereafter provided guidance to Courts when faced with difficulties arising due to a lack of barristers, as set out below. It stated that although Courts cannot solve the problem of the barrister shortage, they do retain the ability to manage proceedings, but must do so in the interests of justice.

1. Communication is key when cases are being listed. Any difficulty with barristers being able to make certain dates should be communicated to the Court at the earliest opportunity. Further, more details should be provided where it would assist. For example, in this case, the Court should have been informed that the “important matter” was a sentencing hearing, meaning that the Prosecution barrister would only have been unavailable for that day.
2. Ideally trials should be given fixed dates as opposed to warned lists, although the Court conceded that was not always possible. It would assist if where a case is in a warned list, a fixed date can be identified approximately two to three weeks prior to that list.
3. Whenever a date is given to a trial, all parties should proceed on the assumption that it will go ahead then. If there any threat to that date, that should be communicated as soon as it becomes known.
4. Hearings other than Plea and Trial Preparation Hearings, trials and sentencing hearings can usually be conducted remotely, allowing barristers to be more efficiently used and increase their productivity.
5. There are occasions where a hearing may take place without a barrister present, although they must be decided on an individual basis.
6. If a Prosecution barrister is not available for the trial, the Prosecution are likely to apply for an adjournment. In most cases, an adjournment will be the appropriate answer. Where an adjournment is refused, either the Prosecution can appeal or offer no evidence, following which a not guilty verdict(s) is recorded against the defendant. This is different to staying a case for an abuse of process, which requires consideration of many different factors affecting a case.

Comment

It is all too common nowadays that trials in the Crown Court are delayed, often due to a lack of barristers available to prosecute the case. It was, however, correct for the Court of Appeal to reverse the ruling in the current case. The law on abuse of process is clear that this is an exceptional argument that should only be made as a last resort. It has been defined as something so unfair and wrong with the prosecution that the court should not allow the prosecutor to proceed with what is, in all other respects, a perfectly supportable case (Hui v Queen, The [1992] 1 AC 34). The defendant usually has to prove some form of bad faith or misconduct on the part of the prosecutor, with it being clear that negligence or incompetence will not be sufficient. This was clearly the case here, where despite the Prosecution’s best efforts, it could not find a barrister to prosecute the case. Even if it had, it is not clear if the trial would have proceeded anyway; when the trial was listed as a “backup” on 30 January 2024, a case with greater priority proceeded to trial and Mr O’Reilly had not been produced, preventing it from going ahead. It is not clear whether the Court had capacity to start the trial the following day or any other day during the warned list. The Judge, in staying the proceedings, appeared to be punishing the Prosecution for an inherent fault in the criminal justice system that cannot be placed at the Prosecution’s door.

It is clear that something needs to be done to clear the backlog of cases in the Crown Court and address the urgent shortage of barristers. However, as the Court of Appeal stated, this is not a problem which the Court can solve. It is for the professions to recruit, train and retain members and for the state and other agencies to ensure the need for Crown Court advocacy is met. However, as it made clear, the Court is not powerless and provided helpful guidance to help Courts reduce the likelihood of trials being listed where a barrister is not available. This, it is hoped, will be a good starting point to helping reduce some delays in the Crown Court.

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