For want of prosecution

Posted: 24/06/2013 in Barrister, Uncategorized
Tags:

Contrary to popular belief, criminal defence lawyers do not have an arsenal of ‘tricks of the trade’ at their fingertips which allow them to take advantage of ‘loopholes’. The famed, ‘technicality’, is a rarity.

To stop a trial before you set sail takes a lot to do. One of the great joys in my career has been arguing that a criminal trial would be so unfair that the Court ought not hear it. I’ve won a few of those arguments, almost always because of police misconduct or missing evidence.

These are called abuse of process arguments. A lot of time is spent at Bar School teaching people about such arguments, a lot of time spent by barristers and solicitors debating such arguments and often large parts of the Court 2 and 3 list at the Royal Courts of Justice debating them on appeal.

One thing you don’t spend a lot of time learning about is another way of stopping a trial: having it dismissed for want of prosecutor.

The presumption these days

It is presumed these days that  if a Defendant does not turn up for her trial that it will go on without her. And what you’re taught at Bar School (albeit for five minutes on a Friday afternoon after you’ve been in the pub at lunch) is that if a prosecutor does not turn up to do your trial, then one apply for a case to be dismissed for want of prosecution.

The law can be put quickly enough: The leading case is R (on the application of CPS) v Portsmouth Crown Court 23. The reasoning in Portsmouth can be summarised as such: if the Prosecutor/Respondent fails to attend, the Court should not simply dismiss the charge/ allow the appeal, (a) without making vigorous enquiries as to the Prosecutor/Respondent’s whereabouts, and (b) if having made those enquiries it turns out that there is a prosecutor en route and the case is ready to be presented.

Indeed, in Portsmouth the earlier case of the Hendon Justices [1967] 1 QB 167 was noted, in particular at 174C, Mann LJ, giving the judgment of the court, said:

“However, the duty of the court is to hear informations which are properly
before it. The prosecution has a right to be heard and there is a public
interest that, save in exceptional circumstances, it should be heard. A
court’s irritation at the absence of a prosecutor at the appointed time is
understandable. That said, it can seldom be reasonable to exercise the power.

So, no prosecutor, no reason,  no chance of starting the trial, then it is possible to apply to have the case dismissed.

Time to mark that page

An application to dismiss a case for want of prosecution is a rare thing. Thus why such little time is spent teaching it and it is rare that a lawyer will have the law in this regard at their fingerprints.

But, it would seem that times are changing. In the last two weeks, I have been turning up the law twice.

On the first occassion, I was doing a two day appeal in the Crown Court, nobody arrived to respond to the appeal. After three hours waiting and what was estimated at the Judge as being £5000 worth of wasted costs, the appeal was adjourned.

Today, three barristers, waited to start three different trials. No prosecutor arrived until lunch time and no reason was given why.

It’s all a game

Quite often people say to me, ‘oh I suppose it’s all a game to you’. To an extent part of the joy of being an advocate is persuading a Court to your position and gaining success for your client.

Abuse of process arguments are an art form in that regard.

But, this is no art at all. This is running from one end of the pitch and depositing the ball in the Prosecution’s net.

It does nothing for the reputation of our justice system at all, it makes it look weak and ineffectual.

It must too be taken as an alarm signal that the CPS is on the verge of collapse.

But, defence lawyers and the Judiciary should consider making and granting applications to dismiss prosecutions for want of prosecutor. Without such applications the problem will simply remain a collection of comments on a cracked trial form.

FTD

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s