Director of Public Prosecutions v Petrie

An adjournment is a discretionary case-management decision. Appellate intervention is warranted only for recognised errors, such as an error of law or principle, or a decision that is plainly wrong. In summary criminal proceedings, adjournments should be a last resort after reasonable alternatives have been considered.

A stay for abuse of process is an exceptional remedy. It is justified where a fair trial cannot take place or where continuing the prosecution would be unfair because of serious prosecutorial misconduct. A disclosure failure is ordinarily addressed through the trial process, including the burden and standard of proof, rather than by a stay, unless it reaches the required exceptional gravity.

The Director of Public Prosecutions appealed by way of case stated against the decision of justices at Ormskirk magistrates’ court to refuse an adjournment and stay proceedings for abuse of process.

The respondent faced a charge of driving with excess alcohol. CCTV footage from the police station had been identified as relevant, but the prosecution supplied it on the trial date in an unusable format. The prosecution was otherwise ready to proceed and sought an adjournment to obtain usable footage. The justices refused the adjournment and stayed the proceedings, considering that the respondent could not have a fair trial without the CCTV.

The questions were whether the refusal to adjourn and the stay were lawful.

1. Question 1: adjournment. The Criminal Procedure Rules 2014 make active case management, expedition and avoidance of unnecessary hearings part of dealing with criminal cases justly. Although the interests of justice may require an adjournment, it is a course of last rather than first resort. The prosecution had failed to provide required CCTV in a usable form, and there could be no expectation that it would receive an opportunity to cure that failure at the likely cost of losing the trial fixture. The justices were entitled to refuse the adjournment. Question 1 was answered Yes.
2. Question 2: stay. The stay was unsustainable under either category of abuse of process identified in R (Ebrahim) v Feltham Magistrates’ Court [2001] EWHC Admin 130; [2001] 2 Cr App R 23. The prosecution’s failure to provide playable CCTV did not approach the gravity required for a Category 2 stay and did not impinge on the integrity of the criminal justice system.
3. Nor did the facts establish that a fair trial was impossible. It was unknown whether the CCTV would assist the respondent or capture any relevant part of the procedure. The trial could proceed on the available evidence. The respondent could rely on the absence of the footage, while the Crown retained the burden of proving the charge. If necessary, the justices could reconsider an adjournment after hearing the live evidence. Question 2 was answered No.
4. The appeal was allowed and the matter remitted to a differently constituted bench. The new bench was to determine questions of admissibility and weight concerning the CCTV.

• High Court (Administrative Court): appeal by way of case stated allowed. The magistrates’ answers were reversed and the matter remitted to a differently constituted bench.