R.Prosecution Service, R (on the application of) v Portsmouth Crown Court

When a prosecution is absent from a Crown Court appeal, the court must balance the interests of the appellant, the respondent, victims and the public. The prosecution’s absence is not automatically decisive. The court should make reasonable enquiries about when prosecuting counsel will be available and consider whether a short adjournment would allow the case to proceed. Relevant factors include any earlier adjournment, inconvenience to witnesses, the victim’s interests, the seriousness of the offence, the fact of any conviction, the likely duration of further delay and alternative ways of addressing counsel’s conduct. Allowing the appeal without undertaking that assessment may be irrational and unlawful.

Following convictions for common assault and threatening behaviour, Richard Proud appealed to the Portsmouth Crown Court. His appeal was listed behind another case. Prosecution counsel was conducting a short sentencing matter in another courtroom and had asked that the judge be informed, but was absent when the appeal was called. The Crown Court allowed the appeal without making further enquiries and refused to see counsel when she arrived shortly afterwards.

The Crown Prosecution Service sought judicial review. The central issue was whether the Crown Court acted unlawfully, in the Wednesbury sense, by allowing the appeal without waiting briefly for prosecuting counsel or balancing the competing interests.

1. Disposition. The decision of the Portsmouth Crown Court was quashed. The appeal was remitted to a differently constituted court for determination.
2. Counsel instructed in a case is responsible for being in court when the case is listed, unless acceptable cover has been arranged with the client or the judge has agreed that the case will not be heard until a later time. Merely informing an usher that counsel is engaged elsewhere is insufficient. The court nevertheless retains responsibility for dealing fairly with the case and should make reasonable enquiries where counsel’s arrival is imminent.
3. Where the Crown Court considers allowing a criminal appeal because the prosecution is unable to proceed, it must balance the interests of the appellant, the respondent, any victim and the public. The prosecution’s absence cannot be treated as conclusive. The relevant considerations included the earlier defence adjournment, inconvenience to the victims, loss of compensation following conviction, the seriousness of the offences, the existing convictions, the short period likely to be required before counsel could appear and alternative means of addressing the problem.
4. In the circumstances, no reasonable tribunal properly considering those matters could have allowed the appeal immediately. The decision was therefore unreasonable and liable to judicial review. The court could have addressed counsel’s conduct through a report to appropriate professional bodies or by costs orders.
5. A judge’s informal note is not evidence. Where disputed information from the court is relevant, it should ordinarily be supplied by proper evidence, such as a statement from the court clerk. That issue was not material to the result here.

The judgment itself describes the prior decision under review:

• Portsmouth Crown Court: Judge Ian Hughes QC, sitting with two Justices, allowed the defendant’s criminal appeal on 20 December 2002 when prosecution counsel was absent.
• High Court (Administrative Court): The decision was quashed and the matter remitted to a differently constituted court.