R v PBN & Ors

We set out here some observations about listing so far as they are relevant to our reasoning. There was a great deal of criticism of the CPS in this case, including from the judge. Their failure to notify the court of the unavailability of the witness who was on holiday at the time of the trial until far too late was certainly serious. It was, however, of no consequence given that the other witness had been properly warned, had said she was coming, and then changed her mind. A witness summons was in force in relation to her. On the judge’s approach unless both witnesses attended the case should be terminated, and not all of his reasons for making that order had anything to do with their absence. Otherwise, there was little force in the criticisms of the CPS, and it was necessary for us to deal with them by explaining that the real problem was the very long delay and the multiple failed attempts to list the case. This was not in any way the fault of the CPS. It was actually a product of the backlog in the court and the listing system adopted there. This part of the judgment appears here so that it can be published now, by means of an order from the court varying the section 71 reporting restriction to this extent. We will say nothing in it which might identify the case to any potential juror. We have done that in case the events in this case provide an impulse for Presiding and Resident Judges to reflect on any such cases they may have, and any ways of adjusting their listing practice to address the problem. Pending any further guidance or practice directions, we hope this may be useful. There is also an important public interest in these events and they should not be clouded in secrecy. Transparency is important in the criminal justice system.

We wish to make it clear that the Resident Judge, his judicial colleagues and the listing staff at the relevant Crown Court have been working under great pressure to manage a very large and increasing backlog of cases for a very long time. They have tried a number of different ways of addressing the problem, but the fundamental problem is that there is too much work and there are not enough courts to deal with it. There are also shortages of key people, including advocates. Although the result in this case has been poor, it would be wrong to fail to record the heroic efforts of those involved in this court and across England and Wales in trying to deal with cases as quickly as possible. We are very grateful to Mr Smith for explaining how intractable these problems are and how hard, and often successfully, the judiciary and staff (supported by the profession) work at this court to try to mitigate them. Our review of the depressing history of this single case must be read in that context.

Listing is a judicial function, enshrined in section 7(2) of the Constitutional Reform Act 2005, which places on the Lady Chief Justice the responsibility for the maintenance of appropriate arrangements for the deployment of the judiciary of England and Wales and the allocation of work within courts. She performs that function largely by delegation to the Senior Presiding Judge, the Presiding Judges of the Circuits and the Resident Judges of the Crown Court centres around the nations of the jurisdiction. The present constitution of this court includes a former Senior Presiding Judge, a Presiding Judge and a Resident Judge. It is, we hope, not inappropriate for us to explain why it is the listing system rather than the CPS which has failed in this case.

As we have recorded above, this case featured in two week warned lists on a number of occasions without ever actually being listed for trial. The first trial listing was on 11 August 2025, as the sixth anniversary of the short and simple incident which gave rise to it approached.

When a case appears in a two week warned list, the court informs the parties that it is liable to be called on for trial during that period. The hope is that witnesses and counsel will be available when the date is finally fixed, but they may not be told of the actual trial date until the day before. If too many cases are in the warned list, or if assumptions about other cases going short, or time estimates for other cases, turn out to be wrong, then cases may reach the end of the warned period without having been listed for trial. Sometimes they may be listed for a date which is not possible for witnesses, or where no counsel can be found. They may then wait a long time before appearing in another warned list when the same thing may happen again.

The point of a warned list is that it is a form of over-listing which is designed to ensure that the courts are kept busy. Trials which are listed sometimes cannot go ahead for reasons which cannot always be foreseen. Defendants plead guilty late in the day. If only one 5 day trial is listed in each court on each Monday and if it then is adjourned or if the defendant pleads guilty, then the court will stand empty for a week. This cannot be contemplated. There must be other work which can be brought in if required, but that other work, listed “at risk”, cannot be guaranteed to start. A warned list is one way of addressing that problem, but there are others. Whether the court uses a warned list, or “floating trials” or some other means, the list will be based on estimates of what is likely to happen in other cases. If those estimates are correct, everything will get on and be dealt with but this cannot always be true. This is the problem which listing officers and Resident Judges have to address every day of their working lives. Often it works, and everything gets on. Sometimes it does not.

The hardest decisions which a Resident Judge has to make concern the priority which some cases demand over others. If a case is prioritised for an earlier trial, because the defendant is remanded in custody so custody time limits apply, or because the offence is very serious and involves seriously traumatised victims, or for any other reason, then some other case or cases will be delayed to make space for it. We would respectfully suggest to Resident and Presiding Judges that where a case is not reached at or about the time fixed at PTPH, and has to be put back for a substantial amount of time, it should receive a higher level or priority for this reason. As we suggest below, that may usually be addressed by giving it a fixed date at that point, even if it had been listed “at risk” before that.

In Ng at [40], a constitution of this court, over which the Lady Chief Justice presided, explained some of these problems, and quoted some guidance issued by the then Senior Presiding Judge, who said:-

“The Listing Advice published by the Senior Presiding Judge on 9 January 2023 at paragraph 6 says this:-

“I do recommend that courts consider carefully the value of the kind of warned list (particularly a two week warned list) which results in cases being listed across a lengthy period and are called in for trial, if at all, at very short notice. The shortage of criminal advocates means that this is likely to fail in many cases. Courts which continue to use warned lists must carefully monitor their effectiveness in getting all cases listed in the warned list on for trial during the warned period. As a general rule I would suggest that in modern conditions a warned list is likely to be most useful in smaller court centres. Whatever method is used for providing additional work to fill gaps, it is always necessary to consider with care what kind of cases can properly be listed ‘at risk’.”

This case demonstrates that the cautionary note sounded there is well-founded. The relevant court is a smaller court centre, but the two week warned list system did not work well in this case. We would suggest that some lessons can be learned and we wish to set them out so that Resident and Presiding Judges (responsible for listing under the current Criminal Practice Direction 5.6) may wish to consider whether they have any significance for their own listing practice:-