The Hackitt Review- Two years on
The need for thorough and careful case management has been re-iterated by the Court of Appeal (Criminal Division) in the case of R v Boardman  EWCA Crim 175.
Although the outcome of this case was that the Court of Appeal dismissed the Crown’s appeal against the ruling by HHJ Dutton, at Chester Crown Court, which effectively brought the prosecution to an end, the significance of this case is wider and applies to all criminal practitioners – not just prosecutors.
The facts of the case are, briefly, that Mr Boardman was being prosecuted for a number of alleged offences of stalking, contrary to Section 4A (1) of the Protection from Harassment Act 1997.
It was alleged that between 3 July 2013 and 22 August 2013, the Defendant had sent a total of 112 text messages and made 5 telephone calls of a sexually explicit and abusive nature to 8 women and to have made 2 indecent, obscene and menacing telephone calls to 2 other women.
The case was listed for a trial on 15 October 2014 in the Crown Court. On that day, the trial judge was faced with an application by the Defendant to adjourn the trial on the basis that significant material (including crucial mobile phone evidence) had been served only a few days before. It was argued that this evidence required expert analysis and that this would take three weeks to prepare.
The prosecution agreed to the Defence application to adjourn the trial. However, the trial Judge was unwilling to grant an adjournment. Instead, HHJ Dutton described the failure of the Crown to comply with its disclosure requirements as a “lamentable failure” and ruled that due to the delay on the part of the prosecution, evidence of telephone call data records and telephone cell site data would be excluded pursuant to the provisions of Section 78 of the Police and Criminal Evidence Act 1984.
This ruling in effect brought the prosecution to an end. As a result, the Crown Prosecution Service applied for leave to appeal the terminating ruling pursuant to the provisions of s. 58 of the Criminal Justice Act 2003.
The Crown sought to overturn the terminatory ruling by HHJ Dutton, on the basis that:
In response, the defence made submissions that the trial Judge had properly made a case management decision which was within his power to make and that an adjournment would have caused the Defendant significant prejudice as the allegations had been hanging over him since September 2013.
In giving the leading judgment of the Court, Sir Brian Leveson (President of the Queen’s Bench Division) reiterated the requirement for all parties to observe the spirit and the letter of overriding objective of the Criminal Procedure Rules 2015. The Court of Appeal rejected the Crown’s criticism of the trial judge’s ruling. In doing so, the Court of Appeal found that “the suggestion that the failings of the prosecution were irrelevant was rightly abandoned” and that “it is beyond argument that the respondent [the Defendant] would have suffered prejudice.”
As a consequence, the Court of Appeal upheld the trial judge’s case management decision. The Court of Appeal recognised the pressures on the Police, CPS and the defence. However, the respective pressures were found to be no excuse for what the trial judge described as “lamentable” failures.
In his judgment, Sir Brian Leveson re-iterated that all parties have a duty to observe the overriding objective. In particular, he highlighted the need for defence practitioners to alert the court to such failure and in so doing, stated: “It would be perfectly open to the judge to decide that the consequences of such a failure of duty on the part of the defence should be to reject a complaint of prejudice consequent upon the need for an adjournment.”
Although the headline feature of this judgement is that the Court of Appeal upheld the trial Judge’s ruling, the real significance of this case can be found in paragraphs 40 – 42 of Sir Brian Leveson’s judgment.
In particular, it is clear from these passages that there is a need for defence practitioners to inform and update the Court in the event of the other party’s failure. This will allow the case to be brought back to court and for the court to rule on case management problems as they arise, rather than on the date of the trial.
The significance of this should not be understated. Indeed, Sir Brian Leveson points out that the Courts will not be impressed by defence practitioners who acquiesce, or conversely where “the over-zealous pursuit of inconsequential material which does not go to the issue all in the hope that the CPS will fall down and that an application can be made which has the effect of bringing the prosecution to an end.”
As such, this case should not simply be seen as a criticism of case management by the CPS. Rather, this judgment acts as a timely reminder to all practitioners, both prosecution and defence that the overriding objective of the Criminal Procedure Rules must be adhered to - and that inadequate case preparation will not be tolerated.
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