The Court of Appeal Confirms a Permissive Attitude to Trial Adjournments for Lack of Prosecution Counsel

I attended Aylesbury Crown Court last Monday to defend in a trial in which a stranger was said to have kidnapped a teenage child, which was listed as the ‘backer’ trial to the priority trial concerning alleged blackmail – both cases of some seriousness. The blackmail trial had already been adjourned once before, and the kidnap trial had not been called into its first ‘warned list’ some months ago.

Remarkably, there was no prosecution counsel in attendance for either trial. Apologetic notes from two sets of Chambers had been sent explaining their absence and the lack of available cover. A whole day was lost while the Crown Prosecution Service attempted to secure counsel as soon as possible. Witnesses waited while, in court, blame was attributed.

In the event, in Aylesbury, prosecution counsel was obtained by the following morning to prosecute the blackmail. By noon, that case had resolved with a plea on a basis. With admirable esprit des corps, the same counsel then accepted instructions to prosecute the kidnap which, after a couple of hours of feverish preparation, he had sufficient understanding of to open the case to the jury after lunch.

This is the manner by which serious criminal trials are often being conducted across the country. The reasons for lack of counsel are well-known, principally the unattractive rates of remuneration for publicly funded work. The Crown Court’s ‘warned’ or ‘floating’ list system for cases that are deemed to be less serious creates a particular hazard because any case subject to such a listing needs to find a last-minute match with counsel who is able and willing to take it – and sometimes there is none.

Meanwhile, the Court of Appeal has, for at least the second time in two years, been called on to reverse a Crown Court’s terminatory ruling consequent on the unavailability of prosecution counsel at trial. In OEM & Anr [2026] EWCA Crim 411, with judgment given on 27 February but only published last week, the Vice President (Lord Justice Edis) ruled that the Circuit Judge should not have refused to adjourn a trial of conspiracy to burgle on its third listing for want of prosecution counsel.

In OEM, two defendants had been charged in January 2024 and first listed for trial at the Crown Court in June 2024. That date was vacated because one defendant fell ill and was refixed to December 2024 with a five-day time estimate. That date was further adjourned to December 2025 when the defence, belatedly, took issue with mobile phone location evidence that the prosecution needed time to address.

Two weeks before the third trial listing, the court was told at a hearing that instructed prosecution counsel would be unavailable due to a diary conflict (the result of an administrative error between clerks when counsel had moved Chambers). There was no request for an adjournment with the understanding that every effort would be made to secure alternative counsel for trial. Judicial notice was given to the effect that no further adjournment would be granted. By the day listed for trial, however, no counsel had been obtained. There was then a contested prosecution application to adjourn, which the judge refused, effectively ending the case against the defendants.

The Court of Appeal reversed the ruling, finding that the balance of factors weighed in favour of an adjournment, notably that:

• Previous trial adjournments were not the fault of the CPS (the second adjournment seemingly treated as the defence’s fault for not querying the mobile phone evidence sooner)
• The case was “by modern standards” not old, relating to conduct in late 2023
• The judge had undervalued the strong public interest in concluding the trial on its merits, relating as it did to serious and sophisticated offences
• Notwithstanding that the defendants were on bail, the case could have been re-listed as a priority, such that the judge was “unnecessarily defeatist” to consider the adjournment application on the basis that the case wouldn’t be tried before 2029

OEM is the first reported case on the issue of absence of prosecution counsel since the Lady Chief Justice’s observations in Ng [2024] EWCA Crim 493. In Ng, the prosecution appeal was against a stay of proceedings as an abuse of process for lack of prosecution counsel. That appeal was granted but the LCJ went on to consider listing practices and the power of the court to terminate proceedings when the prosecution is not represented at trial. The LCJ confirmed that the power is properly exercised by refusing a prosecution application for adjournment, rather than a stay. However, adjournments for lack of prosecution counsel should usually be granted, even if it is a further adjournment for the same reason; in the “most serious cases” it is “almost inconceivable” that adjournments would ever be refused for lack of prosecution counsel (paragraph 47).

As a matter of personal comment, I query how sustainable or desirable the Court of Appeal’s approach is. Ng and now OEM in effect – I simplify only slightly – amount to a case-management direction to judges sitting in the Crown Court that they should not refuse adjournments for lack of prosecution counsel unless there has already been at least one previous ineffective trial listing attributable to prosecution fault. The risk is that the message received by prosecution parties is not the one intended i.e. “we get at least one free pass, don’t worry if no counsel is available, it will just be adjourned”.

That is a shame because the Crown Prosecution Service and the State at large do respond to incentives. Consider, for example, how diligent CPS staff are to ensure that applications to extend Custody Time Limits are made timeously if the need arises. Their diligence surely stems from the fact that there are real, immediate and embarrassing consequences of a so-called CTL ‘failure’ resulting in the release of a potentially dangerous remand prisoner. For that reason, CTL failures very rarely occur.

As the Court of Appeal notes, there are no easy answers to the shortage of counsel: there are competing claims on public funds; timetabling is a difficult exercise even if all professional parties case manage properly; and improving the predictability of listings for the convenience of counsel risks the judiciary being left without work when trials go short. Nonetheless, I would not be surprised if Ng and OEM need to be revisited in a few years’ time. The problem is likely to get worse before it gets better.