R v Joshua Riviere & Ors [2026] EWHC 1858 (KB)

[2026] EWHC 1858 (KB)Case No KA-2025-00281
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 22 nd July 2026
Before
MR JUSTICE HILLIARD
Between
REXApplicant(1) Joshua RIVIEREDefendants(2) Akile LEE-WALTONDefendant(3) Dejon JONESDefendant(4) Lamin JOOFDefendant(5) Philip OSEMWEGIEDefendant
Paul Jarvis KC (instructed by CPS) for ClaimantKate Riekstina (instructed by Payton’s Law) for First DefendantOliver Renton (instructed by Murray Hughman) for Second Defendant for The Third Defendant did not attend and was not representedJess Ward (instructed by Sonn Macmillan Walker) for Fourth DefendantJames Hanman (instructed by Pillai and Jones Ltd) for Fifth DefendantHearing Hearing dates: 14 th July 2026
Approved JudgmentThis judgment was handed down remotely at 9:45am on 22 nd July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HONOURABLE MR JUSTICE HILLIARD

Introduction

[1]On 12 July 2024, at the Crown Court at Canterbury, Her Honour Judge Russell acceded to an application to dismiss a charge of aggravated burglary in the cases of Mr Riviere, Mr Lee-Walton, Mr Jones and Mr Joof. An application to dismiss the same charge against Mr Osemwegie was granted on 19 July 2024 by the same judge.[2]On 19 December 2025, an application for a Voluntary Bill of Indictment was lodged with the High Court. An indictment was sought containing one count of aggravated burglary, contrary to s.10(1) of the Theft Act 1968, against the same 5 defendants as before. The particulars are that on 20 March 2024, the defendants entered a dwelling at Stone Farm, Stone Street, Canterbury, with intent to steal, and at the time of committing the burglary, they had with them an imitation firearm and a weapon of offence, namely a machete. Subsequently, the prosecutor added an alternative allegation of burglary.[3]The application was referred to me on 2 February 2026. I provided a Note to the parties, dated 9 February 2026. I raised some queries about the evidence and asked whether the proposed defendants wanted to make representations and/or ask for a hearing. Thereafter, the matter was delayed whilst potential representatives for the proposed defendants sought quite properly to clarify the basis on which legal aid funding would be available. Regrettably, those issues were not resolved until 21 May 2026. Submissions on behalf of Mr Riviere, Mr Lee-Walton and Mr Joof were received by 5 June 2026 in accordance with an order I made after legal representation had been confirmed.[4]I then asked for transcripts of the hearings in the Crown Court on 5 and 12 July 2024. I had been provided with a transcript of the judge’s ruling on 12 July as part of the application but I wanted a transcript of all the proceedings on that day. I asked for further submissions by 22 June 2026, as a result of which I held a remote hearing on 14 July at which 4 of the defendants were represented. Solicitors for Mr Jones said that they had been instructed too late to be able to take any part in the case. I have the submissions which were made for Mr Jones in the Crown Court and there is obvious overlap between all the defendants.

The facts

[5]There is evidence that an aggravated burglary took place at Stone Farm, Stone Street, Canterbury in the early hours of 20 March 2024. Jonathan Webb, Alan Webb and Gary Webb were in the property. At about 03:30, Jonathan Webb noticed torches coming towards the rear of the house from the direction of the fields beyond the edge of the property. He saw about 10 men who he thought were aged between 18-25 and spoke with what he described as South London ghetto type accents. One of the men shouted out a comment addressed to “Johnny” about the whereabouts of the weed. There was evidence that cannabis was being grown at the farm which might explain why this was asked. Jonathan Webb could see (from his distance) that one of the men was holding a machete. He said he thought the men were of Indian or Pakistani descent. He said he could see the area around their eyes (which makes it sound as if he could not see the rest of their faces). All the proposed defendants are black. Jonathan Webb went to the bedroom of his brother, Alan Webb, to alert him to what was going on.[6]One of the group of men picked up a shovel and smashed open the French doors to the property. Two of the men went upstairs and into a bedroom; one had a handgun and the other had a machete. They asked for cash and weed. They took a wallet and a watch. Other men had been standing in the hallway outside the bedroom. All the men wore dark clothing. Jonathan Webb’s brother, Alan, called the police at 03:42 on 20 March 2024. The men left.[7]Jonathan Webb said that one of the 2 men in the bedroom was wearing a mask but he thought he could recognise him and the second man (who was wearing a hoodie) from their eyes. He said that the first man was Asian. The second man was Asian or Mauritian. Alan Webb also thought he would be able to recognise them both. No identification procedures have been held to see if either witness could identify any of the proposed defendants as being one of the 2 men who came upstairs and into the bedroom. That said, the possibility of safely recognising a stranger from their eyes appears unrealistic, however confident the witness.[8]At 03:45 on 20 March 2024, a silver Ford Focus was said by the prosecution in the Crown Court to have been picked up on CCTV film driving towards the farm. It was argued, however, that that vehicle could not realistically have been at the farmhouse when the 999 call was made. Since the dismissal hearing, the prosecution position appears to have become less definite about the identity of the vehicle seen at 03:45. If it was the silver Ford Focus, it might be said from the prosecution’s stance that participants could have left at different times and having done so, were not necessarily familiar with the area.[9]At about 03:55, DI Cutter and other officers were in a marked police car on their way to the farm when they saw a silver Ford Focus being driven slowly along Stone Street. They followed the vehicle. As they drove along Stone Street, they saw that items had been discarded in the road. These were later found to be items of clothing and the stolen wallet. However, the objects were not being thrown out of the Ford Focus at the stage when DI Cutter and the other officers were observing. They must have been discarded by a person or persons at an earlier stage.[10]The silver Ford Focus (WM19 BYK) was stopped by the police on the London bound carriageway of the M2 motorway. Mr Joof was the driver. Also in the car were Mr Jones, Mr Lee-Walton, and Mr Riviere. Mr Joof was wearing a black jacket and a black baseball cap. Mr Jones was wearing a light grey tracksuit. He had a balaclava. Mr Lee-Walton was wearing a black zip-up jumper and black jogging bottoms. Mr Riviere was wearing a black padded coat and grey jogging bottoms. He also had a balaclava. In the rear of the car, there was a black balaclava and a black puffa coat.[11]When interviewed on 20 March 2024, Mr Lee-Walton said in a prepared statement that he went to Kent with others to deliver some weed. He said that he had not taken part in an aggravated burglary. Mr Riviere said that Mr Lee-Walton wanted to go to Kent. Mr Riviere went for the ride. He did not answer questions. Mr Joof denied committing the offence. He did not say why he had been in Kent. Mr Jones did not answer questions.[12]The police carried out a search of the ANPR system. The results mean that an inference could properly be drawn that the Ford Focus had been driven to Kent in convoy with a black BMW YB19 KFG. Of course, if ten or so men had been at the farm, more than one vehicle would have been needed to transport them if they got there by car.[13]The BMW was stopped in London in the early hours of 21 March 2024. Mr Osemwegie was the passenger. Mr Osemwegie denied the offence and said that he had no knowledge of it in a prepared statement submitted on 22 March 2024. A blue telephone was in Mr Osemwegie’s possession.[14]No criticism is made of the judge’s decision that the evidence in the case at that time was not sufficient for the defendants to be properly convicted. She said that although the defendants were alleged to have walked across fields and that there was broken glass at the crime scene, no glass fragments or mud had been identified on the defendants’ shoes. She added that no photographs had been taken of the shoes and said she had been told that none could be taken now as the bag or bags containing the shoes had been sealed. She said that if there had been any residue of glass or mud on their clothing, it would have been disclosed; she could only conclude that there was no such evidence that the prosecution could put before a jury. She said that the defendants were black and did not match the description given by the Webbs. There had been no identification parades. She evidently took the view that the CCTV taken from the locality was of poor quality and that there was no certainty as to the make or model of the vehicle seen at 03:45. She thought that it could not safely be said to have been the silver Ford Focus.

This application

[15]The application for the Voluntary Bill puts forward additional material which seeks to answer the concerns which the judge had adverted to. There is now scientific evidence that glass fragments on Mr Lee-Walton’s shoes matched the properties of glass from the broken doors at the house. The glass was of an uncommonly encountered type. The expert, Dr Marsh, was of the view that the finding of this glass provided strong support for the proposition that Mr Lee-Walton was in the vicinity of the glass at the house whilst it was breaking, and/or subsequently came into contact with the broken glass. There is no corresponding evidence in the case of the other proposed defendants to suggest by this means that they were in the vicinity of the house.[16]However, I am satisfied that this material could impact upon all the occupants of the silver Ford Focus and not just Mr Lee-Walton. It would be open to a jury to conclude that all those in the Ford Focus must have come together from London to Kent in the early hours of the morning for the same reason and that any evidence which bears on what one occupant of the car was doing could be considered when deciding what the purposes of all the occupants were. A proposed defendant need not have been one of the men who went inside and upstairs in the house to be guilty of the offence. It would be sufficient if there was a prima facie case that a proposed defendant had at least gone to the area of the house and encouraged or assisted someone else to commit an aggravated burglary.[17]The prosecution also rely now upon the product of telephone downloads. Mr Riviere had been sent the postcode for Stone Farm at 00:58 on 20 March 2024. At 01:15, he had been sent a message asking for torches. Why would someone be asking for torches at 01:15? The prosecution point to the fact that the men who were seen approaching Stone Farm were carrying torches. At 02:54, he sent a voice message saying, “We have been up here for time [sic] just driving around. Don’t move. We’ll be there in 15 minutes.”[18]Mr Joof’s telephone showed that he had posted the address and postcode for Stone Farm to a Snapchat group. On the face of it, as with Mr Riviere, the postcode provides a direct connection between him and the burgled premises. A photograph taken on Mr Joof’s telephone at 03:07 on 20 March suggested that he was not far from Stone Farm.[19]The judge had a combination of ANPR and cell site evidence which was capable of showing that the Ford Focus and the BMW in which Mr Osemwegie was arrested and the relevant mobile telephones had all travelled from London in the early hours of the morning of 20 March 2024 to the Stone Street area of Kent, and that the 2 vehicles had travelled in convoy. Cell site evidence from Mr Osemwegie’s telephone put it in the area of Stone Farm after 02:45. Then from about 04:00, the BMW with Mr Osemwegie’s telephone in it returned to London.[20]The additional evidence from the download of Mr Riviere’s telephone showed that at 23:23 on 19 March 2024, someone sent to Mr Riviere’s telephone the number of the mobile telephone that was taken from Mr Osemwegie when he was arrested on 21 March.[21]In the light of all the evidence which the prosecution now seek to rely on, in my judgment there is a prima facie case that the proposed defendants were part of a group of men who had gone to Stone Farm and were at least encouraging and assisting the principal offenders in an aggravated burglary. There is evidence that about 10 men were at Stone Farm when an aggravated burglary took place. A jury could conclude that 10 men had not come together simply to deliver cannabis but were there as a group to take it and other property from the address by at least the threat of force with a weapon (which was visible even to Mr Jonathan Webb when he was inside the house and the men were outside). Unless there is any additional factor in respect of Mr Jones that I am unaware of, the same conclusions would follow for him as for the others.

The law

[22]An application to the High Court for permission to serve a draft indictment is governed by s.2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933, and paragraph 2(6) of Schedule 3 to the Crime and Disorder Act 1998.[23]The procedure has been considered in a number of cases. In R v Davenport and others [2005] EWHC 2828 (QB), Pitchers J said this at [26] and [27]:
“26. The obvious circumstances in which it would be appropriate to argue that the exceptional procedure of a Voluntary Bill should be invoked following dismissal of transferred charges is where the prosecution can produce fresh cogent evidence which was not before the judge who dismissed the charges. For example, a known vital witness whose whereabouts were unknown might have been traced or new eye-witnesses come forward as a result of reading of the dismissal of the case. It would still be necessary for the judge considering the Voluntary Bill to conclude that it was in the interests of justice for a Voluntary Bill to be preferred but he would be making a decision on new material and would not be being asked simply to take a different view from the one taken previously. 27. What should be regarded as fresh evidence for these purposes? I would not for my part want to apply a rigid test so that any material which could technically have been presented to the earlier judge cannot be considered and, conversely, any material obtained afterwards must be. In my judgment, the nature of the new material and the circumstances in which it was obtained must be examined with care when considering the question of whether the interests of justice require a Voluntary Bill to be preferred. It will plainly be much easier for the defence to argue that it would not be in the interests of justice if the prosecution could have produced that evidence in the original proceedings.”
[24]In IPE Marble Arch Limited v Moran [2024] EWHC 2913 (KB), Yip J (as she then was) said (at [6]) that the application for a Voluntary Bill could only be granted if the judge was satisfied that it was in the interests of justice to do so. CPS v Walker-Scarlett [2024] EWHC 1266 (KB) concerned an application for a Voluntary Bill after a successful application to dismiss which the prosecution had not resisted in ignorance of the existence of relevant CCTV footage. McGowan J granted the application, saying that even though the prosecution could have produced the material in the original proceedings, the test to be applied was whether the application “meets the overriding objective and whether it is in the interests of justice for the voluntary bill to be granted” (at [16]).

The circumstances of this case

[25]The first 4 proposed defendants were charged on 21 March 2024 with aggravated burglary. Mr Osemwegie was charged with the same offence on the following day. The proposed defendants were sent to the Crown Court for trial.[26]The case was listed for a Plea and Trial Preparation Hearing on 22 April 2024. The trial was fixed for 8 October 2024. The prosecution evidence was to be served and disclosure completed by 10 May 2024, (stage 1). There was a specific direction that any prosecution expert report was to be served in accordance with the stage 1 date. The defence response and defence statements (stage 2) were to be provided by 7 June 2024. Any written applications to dismiss the charges were to be made by 7 June 2024, with the prosecution response by 21 June 2024. There was to be a further hearing on 19 July to consider the timetable for legal arguments. As it happens, if the 19 July date had remained for that purpose, events might have turned out differently.[27]However, at the hearing of a bail application for Mr Joof on 16 May, another judge listed the application to dismiss for 6 June. Counsel for the other 4 defendants were not present when the new date was given. Her Honour Judge Russell heard the case on 6 June but felt obliged to adjourn it because of difficulties with counsel’s availability, caused by the change of date. She recorded in a note on the Digital Case System that all parties agreed that further delay should be avoided and she fixed the application to dismiss for 12 July.[28]On 13 June, the stage 2 date was amended to 15 July. The stage 3 and 4 dates were also amended but they are not relevant for present purposes.[29]On 5 July, the case was listed for mention before Her Honour Judge Russell because of defence concerns that prosecution disclosure had not been completed properly. The prosecution had not responded to defence requests. The judge described the situation as a shambles and an abject failure by the prosecution. The judge found that the prosecution “had failed to disclose evidence which is clearly relevant to the [applications to dismiss] listed for next week. There is no explanation for this clearly unacceptable failure to comply with its disclosure obligations.” The prosecution were ordered, amongst other things, “(1) By 4pm on 8 July 2024 […] to provide a written explanation for the delay and clearly state what can and cannot be disclosed. (2) By 4pm on 8 July 2024 […] disclose the material sought in the list at Q78 and at Q83 [on the Digital Case System].” The judge added that the application to dismiss would remain listed for 12 July and that if the prosecution failed to disclose the material, “there may be an adverse inference about the quality of the evidence linking Ds to the offence.” The judge said that there had to be some practical sanction for the fact that relevant evidence was not being provided.[30]At Q78, there is an email from Mr Lee-Walton’s solicitors to the CPS on 19 June 2024. It includes earlier emails on the same topic which had not apparently been replied to. The writer of the email requested all the raw telephone data in a form which would allow for cell site analysis, CCTV film and photographs and recordings of vehicle examinations. Q83 was an email from Mr Riviere’s solicitor, Ms Payton, on 2 April 2024, asking amongst other things for telephone downloads and photographs of the soles of the defendants’ shoes to show whether there was glass embedded in the soles. She asked for confirmation that fragments of glass had been taken to see if there was any match with people who were arrested. Mr Joof’s solicitors emailed the CPS on 9 July 2024 (Q23) asking, amongst other things, when a report from the laboratory about shoes was expected.[31]The CPS wrote to Mr Riviere’s solicitors on 8 July 2024 and said that the defendants’ shoes had been sent to the laboratory to test them for glass from the scene. The writer asked for more specificity in the request for telephone downloads and said that the police had not been able to access the defendants’ telephones because PIN numbers had not been provided. Mr Lee-Walton’s solicitors were told on the same day that “at this stage” the police had not been able to download data from the defendants’ telephones in the absence of a PIN. Nothing was said about the examination of shoes. The CPS emailed Mr Joof’s solicitors on 9 July (Q24) but did not say when a report about shoes was expected or anything about telephone downloads. On 9 July, the CPS emailed all parties, saying that “There is forensic evidence outstanding which will make a material difference as to how this case proceeds. The Crown’s focus has been on chasing this evidence from the police. This has been done by both counsel and the reviewing lawyer on occasions prior to the listing on 5th July 2024.”[32]On 12 July 2024, when the applications to dismiss were listed, a police officer attended court with a USB stick containing some raw telephone data and CCTV film which had been requested. Plainly, that would still have taken time to assimilate. Prosecuting counsel said during the hearing that he could not hope that the judge might take the view that the case could be adjourned for the issue of glass samples to be pursued. He said that “the timescale that’s been given for such analysis appears to be somewhere between 6 and 9 months and the date that has now been provided of around about 8 August as being the earliest date is a considerable improvement on the figure that was originally given.” The defence did not ask for the application to dismiss to be adjourned so that further material could be assimilated or obtained for disclosure. That stance is readily explicable on the basis that the judge had effectively indicated that she would not treat the absence of results of scientific examination of shoes simply as a neutral matter one way or the other, but would instead proceed on the basis that there was nothing on the defendants’ shoes to implicate them when in fact of course the scientific examinations for glass had not yet been carried out.[33]Dr Marsh made a witness statement on 9 August 2024 about the fragments of glass found on Mr Lee-Walton’s shoes. This was a day later than Counsel had thought on the revised estimate he gave the court on 12 July 2024. Dr Marsh says that the shoes and glass were taken to the laboratory on 28 June 2024.[34]The download of Mr Riviere’s telephone was completed on 17 July 2024. The download of Mr Joof’s telephone was completed on 18 July 2024.

Submissions

[35]The application for the Voluntary Bill points out that the results of examinations of the shoes were not available at the time of the applications to dismiss. The application explains that telephones had been sent to be forensically downloaded but the results were not known by the time of the applications to dismiss. It says that the results were provided to the prosecution between July and September 2024. The application argues that the evidence which became available after the charge was dismissed provides a sufficient basis for convicting all the proposed defendants when taken with the material which was originally available. The application refers to the judgment of Fulford LJ in SFO v Evans [2014] EWHC 3803 (QB) and says that the new evidence obtained after dismissal is significant.[36]On behalf of Mr Riviere, it is argued that the prosecution could have obtained the additional material for the proceedings in the Crown Court if they had wanted to. The defence had been asking for information about telephone downloads and the examination of footwear. It is said that the prosecution could have asked for the hearing of the application to dismiss to be adjourned or for an extension of the stage 1 date. Attention is drawn to the fact that although all the additional material was in the hands of the prosecution by September 2024, the application for a Voluntary Bill was not lodged until 19 December 2025. It is submitted that there is a breach of the reasonable time requirement- see Dyer v Watson [2004] 1 AC 379.[37]For Mr Lee-Walton, it is submitted that the evidence about glass fragments on his shoes is not of sufficient probative force to justify the grant of a Voluntary Bill, and that the various concerns with the prosecution case identified by HH Judge Russell have not been satisfactorily addressed.[38]On Mr Joof’s behalf, it is submitted that the delays in obtaining the evidence and the delays in making the present application mean that it constitutes an abuse of the court’s process.[39]For Mr Osemwegie, the submissions about insufficiency of evidence are adopted and it is said that it would not be in the interests of justice to grant this application.[40]I am very grateful for all the assistance I have been given.

Discussion and conclusions

[41]I am satisfied that if the additional material about the telephone downloads and the glass fragments had been before the judge at the hearing of the application to dismiss, the judge should and would have allowed the prosecution’s case to proceed for the reasons I have given at paragraphs 15-21 above. The prosecution did not of course have to prove that a particular defendant was one of the 2 unidentified men who went into the bedroom at Stone Farm, or that a defendant actually went inside the property at all, or was even right by the broken doors. There would be some obvious points for the defence to make about some aspects of the evidence in the case but these are points for a jury and do not mean that there is not a prima facie case on all the evidence which is now available against each defendant, subject to any specific point for Mr Jones.[42]That is not, however, the end of the matter. It must also be in the interests of justice to allow the application for a Voluntary Bill of Indictment which is an exceptional procedure. The Criminal Procedure Rules provide assistance as to what justice requires in criminal cases. The overriding objective in the Rules is that criminal cases are dealt with justly. The Rules provide that that in turn includes acquitting the innocent and convicting the guilty, dealing with the prosecution and defence fairly, and dealing with the case efficiently and expeditiously. I draw attention to the emphasis laid by Sir Brian Leveson in his Review of Efficiency in Criminal Proceedings (2015) on what he called the principle of “Getting it Right First Time” (at para 25). He concluded that getting it right first time was the absolute priority for improvements in efficiency.[43]The prosecution in the Crown Court in this case needed to consider carefully how they were going to obtain important information about scientific examinations of footwear and telephone downloads for service or disclosure in accordance with the timetable set for the case or whether they should apply for the timetable to be altered in any respect.[44]Footwear and glass samples were not taken to the science laboratory until 28 June 2024. The defence had been asking about the results of any examinations of footwear and for the results of telephone downloads. The defendants’ failures to provide PINs made downloads more difficult, although I was told that no notices had been given pursuant to s.49 of the Regulation of Investigatory Powers Act 2000.The CPS indicated on 8 July 2024 to Mr Riviere’s solicitors that the police had not been able to access telephones in the absence of PIN numbers. Mr Lee-Walton’s solicitors were told that the telephones could not be accessed “at this stage” which may have been said with the possibility of bypassing PIN security in mind. I cannot see that the issue was addressed in correspondence with Mr Joof’s solicitors. It was open to a defendant to speed things up by providing his PIN if he wanted to. The police did bypass PIN security because as I have said, the download of Mr Riviere’s telephone was completed on 17 July 2024, and of Mr Joof’s telephone on 18 July 2024. (The telephone of another man who was in the BMW with Mr Osemwegie when it was stopped was downloaded on 5 September 2024.)[45]None of the defendants admitted going to the burgled premises when questioned by the police on 20 and 22 March 2024. On 2 April 2024, Mr Riviere’s solicitors had written to the CPS asking for telephone downloads and photographs of shoes to see if there was glass embedded in the soles. As I understand it, the defendants did not indicate at the PTPH that presence at the scene was not in issue or the prosecution would have been relying on that admission at subsequent hearings. There were delays in the grant of authorisations for forensic examination of shoes. The correct forms were not submitted until 2 May 2024. The authorisations were granted on 23 May 2024. The shoes were not taken to the laboratory until 28 June 2024.[46]The prosecution needed to act in a timely manner on their own behalf and in complying with duties they owed to the defence. Unfortunately, defence correspondence does not appear to have been answered, and the judge spoke on 5 July of a shambles and an abject failure to comply with disclosure obligations. This principally involved the glass/footwear and telephones, but also information about the growing of cannabis at Stone Farm. I am not sure that this was such a big issue. Whoever was involved that night, it looks as if one of the offenders was aware that someone called Johnny might have cannabis which could be stolen. The principal difficulty the prosecution were in was that they could not disclose what they had not got about glass and telephones because they had not kept up with the timetable or sought to re-schedule it.[47]Once difficulties were apparent, the prosecution ought to have come to court at a much earlier stage than they did, with clear and accurate dates for when the results of forensic examinations of footwear and telephone downloads would be available, with full disclosure of what they had, and with an explanation for the failure to reply to correspondence. On 5 July, they were given until 8 July to say what could and could not be disclosed and to provide a written explanation for the delay. The CPS sent different emails to different defendants about what material was or was not in their possession, and explained on 9 July that they had been chasing outstanding forensic evidence from the police and that it would make a material difference to how the case proceeded. I do not know what was meant by that, but the dismissal hearing went ahead on 12 July.[48]At the hearing on 12 July, no application was made by the prosecution to adjourn the hearing. The defence were not asking for matters to be adjourned. The defendants were in custody. The prosecution had the difficulty that they did not know what the results of the further examinations would be. They would have been asking at the very last minute for an adjournment to obtain evidence of an unknown nature (or to obtain material for disclosure when the defence were content to go ahead without it.) The prosecution took the view that they could properly argue that the material they had already served provided a case to answer and they advanced their arguments. They were unsuccessful. An application to adjourn might have had more prospect of success if it had been made at an earlier stage, with accurate dates for the provision of material about telephones, shoes and glass which prosecution and defence both wanted, and if correspondence from the defence had always been replied to. That did not happen. The charge was then dismissed in the case of each defendant.[49]However, by 9 August 2024, the prosecution were in possession of some significant telephone downloads and the statement from Dr Marsh. In a case where the prosecution’s conduct had already been the subject of criticism, it obviously behoved the prosecution to proceed as swiftly as possible if they wanted to try and continue with the case. The application for a Voluntary Bill was an application to re-institute proceedings, and a fair amount of time had already passed.[50]The application was not lodged until 19 December 2025. I asked for an explanation for the delay and have been provided with a chronology. The following dates are sufficient to give an idea of the rate of progress. The police had been asked on 12 September 2024 to provide the CPS with all the evidence then available and a full report. An update document was provided by the police on 2 December 2024. Counsel in the Crown Court provided an inconclusive advice on the prospects of a successful application for a Voluntary Bill on 18 December 2024. Leading Counsel was instructed to advise at the end of January or the start of February 2025. On 28 February 2025, Counsel provided initial advice but requested some further information. The police provided 2 further statements on 2 May 2025. A transcript of the dismissal hearing was sent to Counsel on 8 July 2025. The Voluntary Bill application was received from Counsel on 30 October 2025. It is obvious that all this took too long.[51]As can be seen, the police continued to try and obtain the missing evidence and sought advice as to the possible steps which could be taken after the dismissals. The matter was then proceeded with by the CPS and Counsel. The allegations were serious and there is a strong public interest in prosecuting allegations of serious criminal offences where there is sufficient evidence to do so, and when in the particular circumstances, the institution of proceedings is in the interests of justice.[52]We are now 2 years after the successful applications to dismiss. A trial date had been fixed for October 2024. I do not know but it might be that a trial of this matter could take place in 2027. Not all the delay since the application for a Voluntary Bill was lodged is attributable to the prosecution. But given what had happened in the Crown Court, it was incumbent upon the prosecution to make the present application as expeditiously as possible. The timetable I was provided with demonstrates that that was not done.[53]In this case, charges were brought on evidence which the judge in the Crown Court did not think provided a prima facie case against the defendants. True it is that her decision involved what she called an “adverse inference” against the prosecution to the effect that there was nothing on the defendants’ shoes to connect them with the scene of the crime when the shoes had not in fact been examined, but there was a failure by the prosecution to “get it right” first time. The second attempt has unfortunately taken too long.[54]The principles involved in abuse of process applications are well known. In Maxwell [2010] UKSC 48, Lord Dyson summarised the two categories of case in which the court has the power to stay proceedings as an abuse of process as being (1), where it will be impossible to give the accused a fair trial; and (2), where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. Applications based on delay were considered in S(SP) [2006] EWCA Crim 756 and F(S) [2011] EWCA Crim 1844. I am satisfied that this case is not one of those rare cases where a stay is necessary to protect the integrity of the criminal justice system. HH Judge Russell made her criticisms of the prosecution in the Crown Court and I have been critical of them in this judgment. But they were not seeking to hide anything in the Crown Court. There was no positive act of misconduct or anything of that kind. When all is said and done, I am satisfied that in the Crown Court, they failed to pursue the evidence about shoes and glass and telephones with sufficient urgency, and to keep the defence and the court informed about progress. There was then no urgency about this application. But the point has not been reached where justice and propriety mean that there should be no trial at all.[55]Nor is this a case where a fair trial will not be possible. The defendants were arrested and charged very soon after the alleged offence and must have turned their minds to what they were doing, and why, at the time in question at an early stage. I asked at the hearing whether there was any specific prejudice to a particular defendant which could have resulted from the delay and none was identified. I am satisfied that the trial process would be sufficient at every possible stage to address any consequences of the delay and that a fair trial would be possible.[56]I have not had detailed submissions about the requirement for a trial to take place within a reasonable time but I am satisfied on the facts here, that even if there were a breach of the requirement, this is not one of those exceptional cases where it would be unfair to try the defendants or where a fair trial is not possible – see Attorney General’s Reference ( No.2 of 2001) [2003] UKHL 68. I have considered these issues in the context of abuse of process. I am also mindful of the fact that delay can be mitigated if it is appropriate to do so at different stages. For example, the Crown Court will have to decide whether a defendant should be remanded on bail or in custody whilst awaiting trial. If a defendant were to be convicted, a judge could take account of delay in determining the appropriate sentence.[57]The allegation here is a serious one. The Webbs have explained how they say they were threatened at night and their home broken into. If the prosecution are right, a group of men came from London in the night to carry out the offence. The offenders are said to have been armed with a machete and a gun. As I have said, the defendants can have a fair trial, and the delay can be taken account of at all stages, as appropriate. There has been a regrettable lack of efficiency and expedition by the prosecution which is a significant competing consideration when deciding this application. Nonetheless, having balanced all the various factors, I am satisfied that it would be in the interests of justice for me to grant this application. In my judgment, that is a better resolution of the competing interests in the case than declining to grant the Voluntary Bill which would mean that what I am sure would be a fair trial of a serious allegation against a number of people would not happen at all. And more broadly, it is still fair in overall terms for a trial to take place. Accordingly, the application is granted, subject only to a caveat in the case of Mr Jones.[58]Mr Jones’ case can be listed before me as a matter of urgency to see if there is any new matter which his representatives wish to draw to my attention once they have seen this judgment. If there is not, the application is granted in respect of all 5 defendants.

Postscript

[59]Solicitors indicated in correspondence that they had taken instructions from Mr Jones and had no representations to make following receipt of the draft judgment. They confirmed that Mr Jones did not wish to attend to take part in a hearing or to ask for an adjournment for any reason. In those circumstances, the application is granted in respect of all 5 defendants.