R v Katie Ng and Antony O’Reilly [2024] EWCA Crim 493
The Court of Appeal has clarified the correct approach to trial management and the (mis)application of abuse of process principles when prosecution counsel does not attend at trial.
Those practising regularly in the Crown Courts are all too aware of the consequences of years of under investment and the impact that the crisis in funding has had on the availability of counsel. Over the last year or two, cases have been listed for trial – often years after the index allegation – only to be met with the absence of a prosecutor.
In those circumstances, for want of any other means of achieving finality and a fair outcome, defence counsel have sometimes applied for a stay of the proceedings on the basis of abuse of process. In Ng and O’Reilly, the Court of Appeal analysed the correct approach where the CPS, despite repeated efforts, has been unable to identify and instruct prosecution counsel.
In short, the CACD deprecates the staying of such cases, since they will rarely involve:
- The impossibility of a fair trial; or, even more exceptionally,
- An affront to justice as a consequence of the conduct of the prosecuting authority.
“Unfairness to the defendant is not required; rather the focus should be on whether the court’s sense of justice and propriety is offended or public confidence in the criminal justice system would be undermined. Equally, a stay should not be imposed for the purpose of punishing or disciplining prosecutorial misconduct. The focus must be on whether a stay is appropriate in order to safeguard the integrity of the criminal justice system.” (Para 25)
“It is difficult to recognise in the above [repeated failures to identify prosecution counsel] any finding of prosecutorial conduct coming close to the sort of executive misconduct sufficient to justify a stay.” (Para 33)
“To hold that the failure of the CPS to field a prosecutor to conduct this trial was not capable of amounting to an abuse of process justifying a stay of proceedings is not to accept that the court is powerless.” (Para 36)
The correct approach is:
- For the defence to invite the court to proceed to trial in the absence of prosecution counsel:
“In most cases an adjournment, or even a further adjournment for the same reason, will be the right answer. The more serious the case, obviously, the more likely this is to be true. It is to be hoped that failures to attend trials by advocates in the most serious cases will be rare and, where they happen, explicable by things like sudden illness rather than double booking. It is almost inconceivable that such cases will be terminated by the refusal of an adjournment simply on the ground that there is no prosecution advocate.” (Para 47)
- If the court orders the trial to proceed, the next step is to enter not guilty verdict/s:
“In our judgment, where the prosecution requires an adjournment because it cannot prosecute the case unless one is granted, there is an implied proposal to offer no evidence if that adjournment is refused. Often that consequence will be acknowledged explicitly in order to underline the importance of the application, but it will always be there by implication.” (Para 50)
- If the prosecution appeal the terminatory ruling, the CACD will be dealing with a different type of interlocutory appeal:
“In holding that the prosecution was an abuse of process and then staying it, the judge focused only on the conduct of the prosecution and did not take into account all the other factors relevant to the exercise of the power to adjourn criminal proceedings. Had he refused to adjourn the case, and had the prosecution appealed, we would have been reviewing an entirely different decision.” (Para 56)
The court then considered a related procedural / logistical hurdle:
“When refusing an adjournment in circumstances where that will be a terminating ruling, the court must take steps to ensure that the prosecution is able to consider an appeal to this court. Necessarily, there will be no trial advocate present in cases of this kind, and fairness requires that the refusal is communicated to the prosecution in such a way that it can either give notice of its intention to appeal immediately after the ruling, or to seek an adjournment to allow it to consider doing so … If the prosecution, having had a fair opportunity to do so, does not give notice of its intention to appeal accompanied by the acquittal undertaking, that will be the moment at which the court should enter not guilty verdicts … That power will be validly exercised whether or not the prosecution explicitly “proposes to offer no evidence” …” (Para 57)
We can only hope that the ‘absence of a prosecutor’ is a situation that will not often recur and, assuming the clearing of the backlog and the availability of more counsel, it will be consigned to a brief history of proceedings following the pandemic.
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