The Case of the Missing Prosecutor

Craig MacKenzie
Craig MacKenzie

Published: May 24th, 2024

5 mins read

The backlog of cases in the criminal courts continues to grow. At the same time, there appears to be a shrinking pool of advocates, in particular barristers, available to prosecute and defend cases. In relation to some of the more specialised work, in particular alleged sexual offending, the pool is shrinking at an even greater rate, with advocates citing poor pay and conditions and "burnout" due to the emotional impact of such sensitive and, at times, harrowing cases.

Imagine the scene: you arrive at court, ready to proceed with a case, only to find that the prosecution has been unable to secure an advocate. This is the reality faced by judges today. So, in this difficult situation, what should a judge do? The choices are to either further delay the case or make the tough decision to stop the case as an abuse of process.

The Court of Appeal recently considered a case where the Judge ordered a stay and gave guidance to judges for application in future cases.

The court examined the background to the initial ruling, describing it in these terms:

"[The Judge] went on to explore how such delays were “regrettably not uncommon”. He referred to the Bar’s Code of Conduct (Code of Conduct). He stated that it appeared in this case that a deliberate and conscious decision had been taken “somewhere along the line” that other prosecutions were more important. He saw no point in disciplinary action or wasted costs orders. But the regularity of the situation would not be remedied “unless and until a judge, confronted with the inability of the prosecution to present its case because of a lack of an advocate, is willing to declare such a situation as unacceptable”. He referred to the right to a fair trial that includes a trial within a reasonable time. Where the reason for failure was “completely the fault of the state”, that demanded “censure”. When the court was confronted with “potential unfairness”, there were only a very few tools at its disposal.

He stated that it was unfair for a citizen to be forced to wait years to be tried simply because the state was unable to provide a lawyer to prosecute them. The adverse impact of uncertainty on a defendant was often underestimated."

He concluded:

I have, therefore, decided that I have little option to take the highly unusual step of staying this indictment. In my judgment condoning further delay in this particular case, caused by a failure by the Crown to ensure it is in a position to present the allegations amounts to an abuse of the process because it would be a decision which has a clear and obvious capacity to undermine the integrity of the criminal justice system.

To allow the prosecution to continue in the circumstances I have outlined, offends my sense of justice and propriety and to condone the circumstances behind the delay and simply to do nothing would be something which would have a clear capacity to undermine public confidence in the criminal justice system and consequently risk bringing it into disrepute.

The Court of Appeal was not impressed with this result and quashed the ruling after making these observations:

It is difficult to recognise in the above any finding of prosecutorial conduct coming close to the sort of executive misconduct sufficient to justify a stay.

There was no proper justification for the exceptional step of a stay for abuse of process being imposed in the circumstances and the judge was wrong to proceed otherwise.

To hold that the failure of the CPS to field a prosecutor to conduct this trial was not capable of amounting to an abuse of process justifying a stay of proceedings is not to accept that the court is powerless. The court retains the ability to manage proceedings, but must do so in the interests of justice. The shortage of advocates to conduct criminal work in the Crown Court is not a problem which the court can solve. It is for the professions to recruit, train and retain members and it is for the Executive, and other agencies engaged in this process, to take steps to ensure that the need for Crown Court advocacy is met. In the meantime the court must manage its work so that the system functions in the best way possible. We will identify in summary some ways in which that may be achieved.

Where one side or the other is not represented by counsel at a PTPH, trial or sentencing hearing the court has a range of options. If it is a PTPH or sentencing case, one option in appropriate cases is to proceed without the prosecution. If it is defence counsel who is absent then obviously a PTPH or trial cannot proceed. If the court has full information about a defendant and is proposing to impose a non-custodial sentence it may be possible to sentence in the absence of a defence advocate. Courts must, of course, observe the restriction in section 226 of the Sentencing Code on the imposition of custodial sentences on unrepresented persons.

Where a trial cannot proceed because of the absence of prosecuting counsel the court may often have no choice but to re-fix it. It is strongly in the public interest that criminal proceedings should reach a conclusion on the merits. The innocent should be acquitted and the guilty should be convicted. Those who have suffered harm from the commission of a crime should see their desire for justice vindicated. The court should prevent that from happening only as a last resort, and only when the interests of justice, properly balanced, require that outcome.

However, there may be a different remedy…..

The court did however make this concession and it is a point that we as a firm will make in an appropriate case:

"There is, in our judgment, a route by which a judge can terminate proceedings in which the prosecution are not represented at trial by an advocate. This is unlikely to constitute an abuse of process as we have said. However, such a situation will usually involve some form of application for an adjournment so that the prosecution can be represented at a new trial date. Even if no-one has managed to articulate any such application, the simple absence of an advocate will require the court to consider whether to adjourn the trial. In deciding whether to adjourn proceedings, the court is required to consider the interests of justice and to deal with the case justly in the sense described in CrimPR 1.1: the overriding objective. This is an exercise which addresses all aspects of the case and in which the judge will decide what factors carry most weight in determining the outcome. Each limb of CrimPR1.1 will need to be considered. Amongst other things, the judge will have in mind the public interest in criminal allegations being decided, the seriousness of the case and prejudice to the defendant caused by further delay (although such prejudice may be lessened by the fact that it may not be appropriate to extend custody time limits). The interests of witnesses and complainants will be taken into account as will any impact on public safety. In most cases an adjournment, or even a further adjournment for the same reason, will be the right answer. The more serious the case, obviously, the more likely this is to be true. It is to be hoped that failures to attend trials by advocates in the most serious cases will be rare and, where they happen, explicable by things like sudden illness rather than double booking. It is almost inconceivable that such cases will be terminated by the refusal of an adjournment simply on the ground that there is no prosecution advocate.

In our judgment, where the prosecution requires an adjournment because it cannot prosecute the case unless one is granted, there is an implied proposal to offer no evidence if that adjournment is refused. Often that consequence will be acknowledged explicitly in order to underline the importance of the application, but it will always be there by implication.

It may be thought that the existence of this power should mean that the prosecution appeal in this case should fail, because the judge achieved an appropriate outcome by an inappropriate route. We reject that approach. In holding that the prosecution was an abuse of process and then staying it, the judge focussed only on the conduct of the prosecution and did not take into account all the other factors relevant to the exercise of the power to adjourn criminal proceedings. Had he refused to adjourn the case, and had the prosecution appealed, we would have been reviewing an entirely different decision. Nothing in this judgment should be taken as indicating whether or not the judge should have refused an adjournment on the facts of this case.

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