R v OEM & Anor

When a criminal trial cannot proceed because prosecuting counsel is unavailable, the court should normally adjourn so that the allegation can be decided on its merits. The decision requires a genuine balancing exercise under the overriding objective. Relevant considerations include the public interest, seriousness, delay-related prejudice, the interests of witnesses and complainants, public safety, the reasons for earlier failed listings, and each party’s responsibility for case preparation. A warning by another judge about a possible outcome is relevant but cannot determine the later application. Delay exceeding two years, without exceptional features, does not by itself justify terminating a serious prosecution. If an adjournment is granted, the court should seek an early, realistic fixture and ensure that prosecuting counsel is identified in advance.

The prosecution sought leave under section 58 of the Criminal Justice Act 2003 to appeal against a Crown Court ruling refusing to adjourn the defendants’ trial. The prosecution had been unable to provide counsel for the trial date. The case concerned an alleged conspiracy to burgle dwellings and had already had two earlier trial listings. The judge considered delay, the defendants’ interests, the interests of victims and witnesses, and the overriding objective, and concluded that the balance favoured the defendants. The prosecution challenged the approach to the previous adjournments, the treatment of an earlier judicial warning, the balancing exercise, and the adequacy of the Crown Prosecution Service’s efforts to secure counsel. The central issue was whether the proceedings should be adjourned or brought to an end.

Leave to appeal was granted and the appeal was allowed. The Crown Court’s refusal to adjourn was set aside. The proceedings were to continue in the Crown Court and be listed for trial as soon as practicable.

1. Applicable approach. The court adopted the principles stated in R v Katie Ng and Antony O'Reilly [2024] EWCA Crim 493. An application to adjourn because prosecuting counsel is unavailable requires the court to consider the interests of justice and the overriding objective. The court must balance all relevant aspects, including the public interest in a decision on the merits, the seriousness of the allegation, prejudice caused by further delay, the interests of witnesses and complainants, and any impact on public safety. Termination should be a last resort.
2. Previous listings and party responsibility. The judge erred in treating the reasons for the first two failed trial listings as irrelevant. Their causes were material. The first failure resulted from a defendant’s illness, and the second followed late objections to the mobile-phone evidence which had not been identified in a defence statement or trial-readiness material. Those failures were not attributable to the prosecution. Effective case management requires co-operation by all parties and does not permit late ambush.
3. Judicial warning. The earlier judge’s warning that the absence of prosecuting counsel might lead to acquittals or a stay was relevant, but it could not determine a later adjournment application before a different judge.
4. Balancing exercise. Although awaiting a serious trial for more than two years was damaging, the defendants’ circumstances were not exceptional in the context of the criminal justice system. The case’s age favoured allowing further time for a trial on the evidence. The judge also undervalued the strong public interest in prosecuting serious alleged criminality involving many victims.
5. Directions. The case was to be listed promptly after liaison between the Resident Judge and Presiding Judge. The trial could be moved to another convenient Crown Court. The Crown Prosecution Service was directed to identify prosecuting counsel before the trial date was fixed and to give proper attention to future counsel availability. The court cautioned that, at a later stage, termination might become appropriate, but that point had not been reached.

• Court of Appeal (Criminal Division). Leave to appeal was granted and the appeal was allowed. The court directed that the proceedings continue and that a new trial date be fixed as soon as possible: [2026] EWCA Crim 411.
• Crown Court. On 15 December 2025, the trial judge refused the prosecution’s application to adjourn after no prosecuting counsel had been secured for the trial.