R v Katie Ng & Anor

A stay of criminal proceedings for abuse of process is an exceptional remedy of last resort. The two limbs of abuse are distinct: a stay may follow where a fair trial is impossible, or where trying the defendant would affront justice and propriety or undermine public confidence.

Under the second limb, the court must first identify serious prosecutorial misconduct, rather than mere state incompetence or negligence. It must then decide whether a stay is justified after balancing the public interest in a trial against the public interest in maintaining confidence in criminal justice.

The absence of prosecution counsel will usually require an adjournment to be assessed under the overriding objective, not a stay for abuse of process.

The Crown appealed under Criminal Justice Act 2003, s. 58 against a Crown Court ruling which had stayed an indictment against Katie Ng and Antony O’Reilly as an abuse of process.

The trial had been delayed on several occasions. On the latest listed date, prosecution counsel did not attend after chambers reported an important conflicting commitment. The judge treated the absence of counsel and the resulting delay as conduct undermining the integrity of the criminal justice system, and stayed the proceedings.

The central issues were whether the circumstances justified a category 2 abuse-of-process stay and, more generally, how a Crown Court should respond where a trial cannot proceed because prosecuting counsel is absent.

1. Appeal allowed. The stay was reversed. The judge had proceeded on material factual errors about the causes of delay and had made an error of law and principle.

2. A stay for abuse of process is exceptional and must be approached through its separate limbs. There was no finding, and no basis for finding, that a future fair trial was impossible. Under the second limb, the judge had first to identify prosecutorial misconduct capable of justifying a stay, and then to balance the public interest in criminal allegations being tried against the public interest in preserving confidence in criminal justice.

3. The non-attendance of counsel and late communication in this case did not amount to executive misconduct of the exceptional kind required. The judge instead focused on the respondents’ position and used the stay to censure or punish the CPS. That was impermissible. He also failed to conduct the required balancing exercise. The prosecution’s failure to provide a trial advocate was therefore not capable, on these facts, of justifying a stay for abuse of process.

4. Where a trial cannot proceed because prosecuting counsel is absent, the court should ordinarily determine whether to adjourn under the overriding objective in the Criminal Procedure Rules. It must consider all relevant interests, including the public interest in determination of criminal allegations, seriousness, delay prejudice, witnesses, complainants and public safety. In most cases, including repeat absence, an adjournment will be appropriate.

5. If an adjournment is refused in circumstances in which the prosecution cannot proceed, the request for an adjournment ordinarily implies a proposal to offer no evidence. The court may then enter not-guilty verdicts under Criminal Justice Act 1967, s. 17, but must first give the prosecution a fair opportunity to consider an appeal and to comply with Criminal Procedure Rules, r. 38.2.

The proceedings were ordered to resume in the Crown Court and to be listed for a fixed trial on the first available date.

• Court of Appeal (Criminal Division): In R v Katie Ng & Anor [2024] EWCA Crim 493, the Crown’s appeal was allowed. The abuse-of-process stay was reversed and the proceedings were ordered to resume.
• Crown Court at Canterbury: His Honour Judge James stayed the indictment as an abuse of process after prosecution trial counsel did not attend when the case was listed for trial.