R v BOD

Where a criminal trial cannot proceed because the prosecution has no advocate, the court must decide any adjournment application by applying the overriding objective in the Criminal Procedure Rules. It must balance fairness, expedition, the interests of witnesses and complainants, the gravity of the charges, and the public interest in a determination on the merits.

Refusal of an adjournment should not punish a party for a procedural default. Where refusal means that serious, evidentially viable charges will never be tried, that consequence will ordinarily outweigh the serious but lesser prejudice caused by delay. The more serious the case, the stronger the case for adjournment.

The prosecution applied under section 58 of the Criminal Justice Act 2003 for leave to appeal against a Crown Court judge’s refusal to adjourn a trial. The defendant denied serious sexual and violent offences against his wife.

The instructed prosecution advocate returned the brief because an unrelated murder trial had overrun. Despite nationwide enquiries, no replacement advocate was available. The judge accepted that position but refused an adjournment, although the prosecution would then have to offer no evidence. The central issue was whether that refusal properly balanced the interests of justice under the Criminal Procedure Rules.

1. Appeal allowed. The Court granted leave, reversed the refusal to adjourn, and ordered that a fresh trial may take place in the Crown Court.

2. Under section 67 of the Criminal Justice Act 2003, the Court could reverse the ruling if it was wrong in law, involved an error of principle, or was not a ruling reasonably open to the judge. Those conditions were met.

3. The governing exercise was the overriding objective in rule 1.1 of the Criminal Procedure Rules, as explained in R v Ng and O'Reilly [2024] EWCA Crim 493. When the prosecution cannot be represented, the court must consider whether an adjournment best serves the interests of justice. It must weigh all relevant factors, including the public interest in adjudication on the merits, the gravity of the case, prejudice caused by delay, and the interests of the defendant, witnesses and complainant.

4. The chambers and/or CPS should have notified the court sooner of the potential difficulty. That omission was not serious in context and did not cause the need for an adjournment. The decision had to rest on the overall interests of justice, not on a wish to penalise a party for default.

5. The decisive choice was between an unsatisfactory delay and the charges never being tried. Delay would cause anxiety and may affect recollection, although any resulting prejudice could be addressed by jury directions. But the allegations were very serious and supported by sufficient evidence to bring the defendant to trial. Fairness to both parties, the gravity of the charges and the public interest in a jury determination required greater weight than efficiency and expedition.

6. The prosecution must promptly seek a Crown Court hearing to fix the earliest achievable trial date. The case may be heard at the same court centre, and by the same judge if available and willing.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 1357, the Court granted the prosecution leave to appeal under section 58 of the Criminal Justice Act 2003, allowed the appeal, reversed the refusal to adjourn and ordered a fresh trial.
• Crown Court: The trial judge refused the prosecution’s application to adjourn after no replacement prosecuting advocate could be found.