R v BOD [2024] EWCA Crim 1357

WARNING: reporting restrictions apply to the contents transcribed in this document, as stated in paragraphs 2-4 of the judgment, because the case concerns a sexual offence. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.

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IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Case No 2024/02595/B1

Date Thursday 19 September 2024

Between

R E XCrown

The Strand

London

LC2A 2LL

[2024] EWCA Crim 1357

B e f o r e:

THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION

(Lord Justice Holroyde)

MR JUSTICE NICKLIN

MRS JUSTICE THORNTON DBE

____________________

- v -

Between

B O D

____________________

Computer Aided Transcription of Epiq Europe Ltd,

Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

_____________________

Leading Counsel appeared for Applicant Crown

Junior Counsel appeared for Respondent Defendant

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J U D G M E N T

(Approved)

[1]This is an application pursuant to section 58 of the Criminal Justice Act 2003 for leave to appeal against a ruling by a Crown Court judge refusing to adjourn a trial. For convenience we shall refer to the applicant as "the prosecution" and to the respondent as "the defendant".

[2]Reporting restrictions apply to this case. The defendant is charged with three offences of rape of the complainant, who is his wife, and with an act of serious violence against her. The complainant is entitled to the lifelong protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during her lifetime no matter may be included in any publication if it is likely to lead members of the public to identify her as the complainant in this case. We shall refer to her as "C".

[3]In the listing of this hearing the defendant has been anonymised by replacing his name with the randomly chosen letters "B O D". We will not name him in this judgment, or include any details which might lead to identification of him or of this case, because identification of the defendant would inevitably lead to the identification of his wife, the complainant.

[4]Further reporting restrictions apply by virtue of section 71 of the 2003 Act. We are, however, satisfied that, provided the orders in relation to anonymity are observed, this judgment may be published in the terms in which it is given. We therefore make an order pursuant to section 71(3) that the restrictions in section 71(1) shall not apply to any report of this application. We repeat, however, that this judgment does not name or otherwise identify the accused or indeed the court at which the case was heard.

The chronology of proceedings

[5]The defendant denies all the charges, some of which relate to offences alleged to have been committed several years ago. For present purposes it is unnecessary to say anything about the facts.

[6]C first reported her allegations to the police in April 2022, and the defendant was interviewed under caution later that month. C recorded her evidence in chief in an ABE interview in August 2022. Scientific evidence was obtained and the defendant was further interviewed and subsequently charged in October 2023. He has lodged a defence case statement setting out his case.

[7]At a plea and trial preparation hearing in December 2023, trial dates were canvassed and the date of Monday 8 July 2024 was identified as convenient. The trial, with an estimated length of hearing of three to four days, was listed to be heard on that date before a very experienced judge who is the resident judge of the court centre concerned.

[8]Leading counsel had been briefed to prosecute the case, acting without a junior. In the period preceding the trial date she was representing the prosecution in an unrelated murder trial at a different court. The murder trial was delayed and overran its schedule.

[9]On Tuesday 2 July 2024 counsel, in consultation with the Crown Prosecution Service ("CPS") who instructed her both in this case and in the murder trial, confirmed her decision that her professional obligations in respect of the murder trial required her to return the brief to prosecute in this case. We say at once that we are satisfied that that was an entirely proper decision on her part.

The application to adjourn the trial

[10]We summarise relevant events over the following days in July 2024. On Tuesday the 2nd, counsel's chambers emailed all local chambers asking if there was a suitably qualified barrister available to take over the prosecution brief. Similar enquiries were made by telephone on Wednesday the 3rd. Chambers were informed that no counsel was free. Later that day, chambers obtained the agreement of the CPS to email chambers nationwide. Contact was then made with other chambers further afield on Thursday the 4th, but no counsel was found who could and would take the brief.

[11]On the morning of Friday the 5th, at the request of the CPS, there was a hearing before the judge. Although there has been some uncertainty about this, it seems that the court was contacted late on the afternoon of Thursday the 4th to request that hearing.

[12]At the hearing prosecution counsel applied to take the trial out of the list for Monday the 8th. She informed the judge of the unsuccessful efforts which had been made to find counsel who could take the prosecution brief. She invited the judge to consider two possibilities: to move the trial date to Tuesday the 9th, in the hope that events on the Monday might result in suitable counsel becoming available; or to re-list the trial for 9 December, on which date counsel understood that the court would be able to accommodate it. Defence counsel adopted a neutral stance.

[13]The judge said that he would not move the trial, which had been listed for a long time, to the suggested date in December. He said that he would put it back to Tuesday the 9th, but that the trial would have to start on that day.

[14]Counsel's chambers continued to seek counsel who could take the brief. On Friday the 5th they contacted chambers both locally and further away to see if anyone had become free. Further enquires were made on Monday the 8th. The CPS also made enquiries of all local chambers and about 60 sets of chambers elsewhere in the country. None of these efforts bore fruit.

[15]On Tuesday the 9th, prosecution counsel made a written application to adjourn the trial on the ground that no counsel was available to prosecute the case during the period when it was listed for trial. She referred to rule 1.1 of the Criminal Procedure Rules and to the recent decision of this court in R v Ng and O'Reilly

[2024] EWCA Crim 493

("Ng and O'Reilly"), to both of which we shall return shortly. She summarised the relevant chronology, noting that this was the first time that application had been made to adjourn the trial.

[16]That morning, the judge heard oral submissions. Prosecution counsel herself was engaged in the murder trial, and a junior barrister made the prosecution application to vacate the trial date and re-list it for the first available date. The judge said that his present view was that he would not adjourn the trial beyond that week, but he put the hearing back until the afternoon, so that prosecution counsel could herself attend.

[17]That afternoon prosecution counsel explained features of the murder trial which had led her to make and maintain, with regret, her difficult decision that she must return the brief to prosecute this case. The judge adjourned the trial until the following morning, saying that he did not wish to close off any possible avenue by which the trial could proceed then. He expressed his willingness to communicate with the judge presiding over the murder trial, to see if the timetable for that trial might be altered so that prosecution counsel could be available to prosecute this case.

[18]Later that afternoon prosecution counsel sent an email to the judge, copied to defence counsel, in which she gave further details about her decision to return this case and touched upon some personal matters. The judge at that stage took the view that he should not read that email in detail until after the hearing on the following morning.

[19]On Wednesday the 10th, prosecution counsel renewed her application to adjourn the trial. Defence counsel did not wish to add anything to his previous submissions, which had stated the understandable wish of the defendant for the trial to proceed.

[20]After a short retirement, the judge gave a ruling refusing the adjournment, in the course of which he was in some respects critical of counsel. He said, amongst other things, that the suggested date in December would only be available if the court could find an additional judge or could move an unrelated trial listed for that period, which involved a paraplegic defendant. He observed that the more likely date, if the trial were adjourned, would be in February or March 2025.

[21]The judge was then requested to, and did, read the email which prosecution counsel had sent the previous afternoon. Having done so, he unhesitatingly withdrew the criticisms he had made. He said that he would rethink his ruling overnight.

[22]On Thursday the 11th, the judge gave the ruling which is the subject of the appeal to this court. He referred to the listing procedures adopted at his court centre which ensured, so far as possible, that instructed counsel were able to conduct each case. He expressed his extreme disappointment that something had happened in this case which he had thought would never happen at that court centre. He noted that the court had been unaware of any difficulties in respect of the trial date, until Friday the 5th. He accepted that no counsel was available locally or nationally to prosecute this trial.

The ruling under appeal

The judge summarised the options available to him:

[23]to adjourn the trial until December in the hope that it could be accommodated then; to adjourn the trial to a date in February or March 2025; or to refuse the application for an adjournment. He adopted the third of those courses. He referred to the Criminal Procedure Rules and to passages in Ng and O'Reilly. He acknowledged the seriousness of the charges and the public interest in criminal proceedings being heard, but said:

"Whilst I appreciate that this ruling may have the effect of terminating the case the interest of 'victims' and witnesses is not going to be well served by lengthy and, frankly, avoidable delays."

[24]The judge went on to consider the potential prejudice which delay would cause to the defendant in a case in which there were no documents to assist recollection. He again reflected on the gravity of the allegations, but said that a balance must be struck between cases being tried early and fairly, or "an avoidably delayed serious trial which delay causes or may cause, identifiable prejudice to one side and anxious frustration to the other". He said that a delay of at least five months was "simply unconscionable". He emphasised that his ruling was a fact specific decision, and that it would be unjust to grant an adjournment in all the circumstances of this case.

The appeal

[25]Section 58 of the Criminal Justice Act 2003 gives a right of appeal in respect of rulings made in relation to a trial on indictment. In making their application to this court, the prosecution have complied with all the statutory requirements and have given the "acquittal undertaking" required by section 58(8).

[26]By section 61(1) this court has power to confirm, reverse or vary the ruling to which the appeal relates. Section 61(4) states what his court must do if it reverses or varies the ruling.

[27]By section 67, this court may not reverse a ruling unless it is satisfied:

"(a) that the ruling was wrong in law, (b) that the ruling involved an error of law or principle, or (c) that the ruling was a ruling that it was not reasonable for the judge to have made."

[28]The ground of appeal is that the judge's ruling was wrong in principle and one which it was not reasonable for him to have made. The prosecution submit that it was wrong in principle and unreasonable for the judge to decide that the potential prejudice caused by an adjournment outweighed the prejudice caused by a ruling which leaves the prosecution with no alternative but to offer no evidence in a very serious case.

[29]Counsel accepts that the court could have been notified on Tuesday 2 or Wednesday 3 July that fresh counsel would have to be sought, but submits that the failure to do so did not contribute to the need for an adjournment. She suggests that prejudice caused by the delay will be limited, because C's evidence has been recorded and the defendant must have given detailed instructions to enable his defence case statement to be filed.

[30]For the defendant, it is submitted that the judge correctly applied the principles in Ng and O'Reilly and that his decision was reasonable in the circumstances. Counsel points to the efforts made by the judge to find a way of accommodating prosecution counsel's professional difficulties and submits that the circumstances in which the difficulties have arisen cannot be regarded as rare or excusable. He submits that this is not a case in which a sudden, extreme difficulty arose. The CPS knew on Tuesday 2 July that prosecution counsel would have to return her brief, and in view of the seriousness of the case could and should have done more than they did to try to arrange for the case to be put back in the hope that counsel for the prosecution may come free from the murder trial and be able to deal with this case.

[31]We are very grateful to both counsel for their very helpful and focused submissions.

The legal framework

[32]By rule 1.1(1) of the Criminal Procedure Rules the overriding objective of the procedural code contained in the rules is that criminal cases be dealt with justly. By rule 1.1(2):

"Dealing with a criminal case justly includes ― (a) acquitting the innocent and convicting the guilty; (b) treating all participants with politeness and respect; (c) dealing with the prosecution and the defence fairly; (d) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights; (e) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case; (f) dealing with the case efficiently and expeditiously; (g) ensuring that appropriate information is available to the court when bail and sentence are considered; and (h) dealing with the case in ways that take into account ― (i) the gravity of the offence alleged, (ii) the complexity of what is in issue, (iii) the severity of the consequences for the defendant and others affected, and (iv) the needs of other cases."

[33]Rule 1.2 requires each participant in the conduct of each case to prepare and conduct the case in accordance with that overriding objective.

[34]Rule 3.12(2), which applies to a party's preparation for trial, requires each party to:

"… (d) promptly inform the court and the other parties of anything that may ― (i) affect the date or duration of the trial …"

[35]In Ng and O'Reilly the outline facts were that the CPS had written to the court concerned, indicating that they had been unsuccessful in their attempts to secure counsel to prosecute a trial which was in a warned list for the following day. No advocate attended for the prosecution when the case was before the court the next day. In the event the trial had to be adjourned because a preceding trial was effective and took priority. But at a later hearing the judge acceded to a defence application to stay the proceedings as an abuse of the process. This court held that there was no proper justification for the judge to have taken that exceptional course and therefore allowed the prosecution appeal. The court observed, however, that it was not indicating whether or not the judge should have refused an application for an adjournment.

[36]As the judge and both counsel in the present case agree, the judgment of the court in Ng and O'Reilly, given by the Lady Chief Justice, contains important statements of principle and practice directly relevant to the present case. At [37] the Lady Chief Justice stated that the judge had been quite entitled to be disappointed that the court had not at any stage been given full information about counsel's availability, and she emphasised the obligation on participants in proceedings to communicate with the court promptly. At [43] she stated:

"At whatever stage a date is given for a trial everyone concerned must operate on the basis that this is when the trial will be, and all parties must give the court timely information of any threat to that date. Such threats may include the inability to identify counsel to prosecute or defend that trial. This requirement has been set out in the Criminal Procedure Rules …"

[37]In a section of the judgment headed "The power of the court when the prosecution is not represented at trial", the Lady Chief

Justice said this:

"46. Where a trial cannot proceed because of the absence of prosecuting counsel the court may often have no choice but to re-fix it. It is strongly in the public interest that criminal proceedings should reach a conclusion on the merits. The innocent should be acquitted and the guilty should be convicted. Those who have suffered harm from the commission of a crime should see their desire for justice vindicated. The court should prevent that from happening only as a last resort, and only when the interests of justice, properly balanced, require that outcome. 47. There is, in our judgment, a route by which a judge can terminate proceedings in which the prosecution are not represented at trial by an advocate. This is unlikely to constitute an abuse of process as we have said. However, such a situation will usually involve some form of application for an adjournment so that the prosecution can be represented at a new trial date. Even if no one has managed to articulate any such application, the simple absence of an advocate will require the court to consider whether to adjourn the trial. In deciding whether to adjourn proceedings, the court is required to consider the interests of justice and to deal with the case justly in the sense described in Crim PR 1.1: the overriding objective. This is an exercise which addresses all aspects of the case and in which the judge will decide what factors carry most weight in determining the outcome. Each limb of Crim PR 1.1 will need to be considered. Amongst other things, the judge will have in mind the public interest in criminal allegations being decided, the seriousness of the case and prejudice to the defendant caused by further delay (although such prejudice may be lessened by the fact that it may not be appropriate to extend custody time limits). The interests of witnesses and complainants will be taken into account as will any impact on public safety. 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."

[38]The Lady Chief Justice went on to explain at [50] that when the prosecution requires an adjournment because it cannot otherwise prosecute the case, there is an implied proposal to offer no evidence if that adjournment is refused.

[39]We turn to consider the application of those principles to this case.

Analysis

[40]The circumstances provide, in our view, a stark illustration of the difficulties faced by the Crown Court at present. Judges and practitioners are working flat out in their efforts to deal with cases justly and as expeditiously as possible. We are acutely conscious of the consequent pressures on judges, barristers and solicitors. We applaud their individual and collective efforts, and we sympathise with the stress and personal difficulties which unhappily are sometimes suffered as a result. We sympathise with the judge who, in his role as resident judge, had clearly striven to operate a system of listing which aimed to fix trial dates when the instructed advocates were available. It is entirely understandable that he was disappointed to find that difficulties had arisen in this case which had been avoided in other cases.

[41]The judge accepted, however, that prosecution counsel had acted properly in deciding that her duties in the murder trial made it necessary for her to return the prosecution brief in this case. Given that her decision was necessarily dependent upon precisely what happened in the murder trial, it is not suggested that she could and should have reached that decision any earlier than she did.

[42]We can see the argument that, once that decision had been made, counsel's chambers and the CPS should not only have pursued their efforts to find another counsel, but should also have informed the court at once of the potential difficulty. We can, however, also see the counter-argument that the court would not be assisted by a running commentary on possible changes of representation, at a stage when there was still reason to think that replacement counsel would be found and that therefore, in the terms of rule 3.12, the trial date would not be affected.

[43]We also see force in the submission of prosecution counsel that earlier notification of the need to change counsel could not and would not have made any material difference, because the inescapable fact is that she was tied to the murder trial and no other counsel was available.

[44]For those reasons, whilst we think that counsel's chambers and/or the CPS should have notified the court of the problem sooner than they did, we do not think that that was a serious failing in the circumstances of this case. In any event, as the judge rightly recognised, the decision whether to grant an adjournment is to be made on a consideration of the overall interests of justice and should not be based on a desire to punish a party for some default.

[45]We hesitate to interfere with the decision of the judge in this difficult situation. However, stripped to its essentials, the key consideration in deciding whether to grant the adjournment was that the trial must either be delayed or must never take place. Of course, any delay, let alone a delay of several months, was highly undesirable. It would exact a toll of anxiety and destress on the defendant, the complainant and other witnesses and interested parties. It would be capable of adding to the difficulties which witnesses would have in recollecting details of the relevant events, though the risk of resultant prejudice to the defendant could be the subject of appropriate directions to the jury.

[46]But we have no doubt that the alternative was yet more undesirable. The charges against the defendant are very serious. Although they are denied, it is not suggested that they are not supported by evidence sufficient to bring the defendant to trial. The public interest in those allegations, and the defendant's response to them, being considered by a jury is very strong.

[47]With all respect to the judge, we cannot agree that it was in the interests of justice that the complainant's allegations should never be heard, rather than that they should be heard after an unsatisfactory delay. We are not persuaded that the delay was, in reality, avoidable. Even if earlier communication with the court would have provided more opportunities to explore every possibility, the problem would always have remained that no alternative counsel could be found.

[48]In deciding whether the interests of justice would best be served by granting or by refusing an adjournment, the circumstances of this case required that, when balancing relevant factors, greater weight should be given to the gravity of the charges and the need to be fair to both parties than to dealing with the case efficiently and expeditiously.

[49]The judge, with respect, did not give sufficient weight to what was said at [46] of Ng and O'Reilly and to the statement at [47] of that judgment that "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."

Conclusion

[50]For those reasons, whilst we have no doubt that the judge was striving to do justice, we are satisfied that he fell into error of principle and that in the circumstances of this case his decision was not one which it was reasonable him for him to make.

[51]We therefore grant leave to appeal. We allow the appeal. Pursuant to our powers under section 61 of the 2003 Act, we reverse the ruling and order that a fresh trial may take place in the Crown Court.

[52]We see no reason why the fresh trial should not take place at the same Crown Court Centre. It may be heard by the same judge, if he is available and willing to hear it.

[53]We direct that the prosecution must, as soon as possible, request the Crown Court to list the case for a hearing before the judge to fix as earlier trial date as can be achieved.

[54]That concludes the judgment. (There followed a short discussion of consequential matters) Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________