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.