R v Paul Harris & Ors

This case reflects a very difficult situation in the Crown Courts of England and Wales. Many of the problems which afflict the criminal justice system have surfaced in it at one time or another. This case has waited for trial for an unacceptably long period of time, despite the efforts of the court to deal with it. The delay here is not typical, being unusually long. However, it is probably not unique.

The incident which gave rise to the indictment occurred on 19 October 2019, very nearly six years ago. The allegation was of an unpleasant incident involving violence in the street as a result which two complainants were injured. The injuries were not serious enough to constitute really serious bodily harm. On 14 April 2020 letters of requisition were sent out informing the respondents of the charges and requiring their attendance at court. This was in the early stages of the COVID 19 pandemic. A first appearance for the four defendants took place on 28 September 2020 at the Magistrates Court. Not guilty pleas were indicated and the Magistrates Court declined jurisdiction directing trial at the Crown Court.

The case was listed at Shrewsbury Crown Court for a Plea and Trial Preparation Hearing on 24 November 2020. It was already over a year old. The four defendants entered not guilty pleas to the counts on the Indictment which concerned them. These were:-

Count 1 against Paul Harris and Matthew Woodhouse, assault occasioning Toner Davies actual bodily harm.

Count 2 against Sian Woodhouse and Emma Lloyd, assault by beating against Karen Harris.

Count 3, affray against all four defendants. This related to the same incident which gave rise to counts 1 and 2.

All defendants were on bail in this case which meant that the time limit in the custody time limit regulations did not apply. This trial had appeared repeatedly in warned lists without ever actually being listed. These were 24 January 2022 (2-week warned list), 4 July 2022 (2-week warned list), 9 May 2023 (2-week warned list), 17 June 2024 – dropped back to 19 June 2024, 19 May 2025.

The first time the case was listed for trial was 11 August 2025. This came about, the judge said in his ruling, because he fixed it at a mention hearing on 22 May 2025. That no doubt occurred because it had become clear, yet again, that it would not be tried during that warned list period, and it finally acquired a fixed date. On 30 June 2025 Emma Lloyd, made an application because she was going on holiday on 19 August and would be unavailable for the second of those two weeks. In response, His Honour Judge Lowe, the Resident Judge, said:-

“D4 is due to go on holiday on 19 August 2025 and I took the view that this trial has a time estimate of 5 days it should finish by Friday 15th August and there is still the backstop position of Monday 18^th August.
However the judge hearing the trial should not have any short work for the first 2 to 3 days until it is clear that the trial will finish on or before 18th August”

Shrewsbury Crown Court operates a warned list and is a smaller court centre. On 9 January 2023 Listing Advice was published by the then Senior Presiding Judge which contained 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. ”

On Friday the 8 August the Crown Prosecution Service (“CPS”) directed that counsel who had been briefed to prosecute this case should be instructed instead to prosecute a case which was subject to custody time limits and was therefore, for them, higher priority. No counsel attended to prosecute on Monday 11 August, and the court was informed that this would happen on the previous Friday afternoon. The case was adjourned until 12 August when Ms Holly Sims attended to prosecute. All defendants were present and represented. The two complainants were also present and ready to give evidence.

There were two independent eye witnesses (Holly Curran and Sian Evans) who had made statements which had been served by the prosecution as part of its case when the case was sent for trial. Neither of them attended either on 11 or 12 August.

Holly Curran had been served with a witness summons which was first issued on 17 November 2021. She was now living in Sussex and had indicated an unwillingness to attend, saying that the cost and time would be prohibitive. On 21 July 2025, the officer in the case called Ms Curran and she confirmed her attendance for 11 August, but she did not then attend. The Witness Care Unit spoke to Ms Curran on 11 August when she informed them that she would not attend on 12 August as it was a 5 hour journey. No application for a witness warrant was made.

Sian Evans was on holiday abroad between 6 and 16 August 2025. She had notified the officer in the case on 21 July 2025 of her holiday. The holiday had been booked on 24 May 2025, so two days after the trial had been fixed. The judge accepted that she had probably not known of the trial date when she booked her holiday. On 30 June 2025 when the case was considered by Judge Lowe, no-one knew that this witness would not be available. That fact was not communicated to the court or the parties until 12 August 2025 when Ms Sims was informed of it on her arrival at court. She informed the court that the prosecution had been told that Ms Evans would be on holiday during the trial period on 7 August. She said:-

“The reviewing lawyer then contacted trial counsel, whoever that was -- I'm unsure -- with correspondence to say that, essentially, their view was to tender that witness to the defence and for the statement to be as unused material and asked for counsel's confirmation. No confirmation was forthcoming. So it appears that, since that date, defence haven't been made aware of that.”

There had been occasions in the history of this case when judges had invited the CPS to review it to determine whether it was still in the public interest for it to be prosecuted after such a long delay. The CPS decided that it was, because it involved an incident with a domestic background. Mr Paul Harris and Ms Karen Harris had been married, and Mr Toner Davies was Ms Harris’s new partner. It was alleged that Mr Paul Harris and Mr Matthew Woodhouse had both punched Mr Davies and kicked him when he was on the ground. This was late at night in a public street. The complainants remained strongly supportive of the continuation of the prosecution. For these reasons, as they were entitled to do, the CPS wished the case to proceed. On 9 July 2024 Judge Lowe had entered this comment on the DCS:-

“I have asked the prosecution to review this case in relation to whether the witnesses are still prepared to come to court to give evidence and whether prosecuting this matter is still in the public interest given that the alleged offences were committed on 19 October 2019. I pointed out that public interest now has to take into account the need to reduce the backlog.”

There was argument at trial, and a brief reprise before us, about the way in which the CPS reviews had, or had not, been carried out and also about whether Judge Lowe was right to say that the CPS should consider the “need to reduce the backlog” as part of their assessment of the public interest under the Full Code test.

When it became clear that the two independent witnesses were not present Ms Sims made submissions and concluded:-

“……The other two witnesses [the complainants] are here --

JUDGE MEEGAN: Yes.

MS SIMS: -- so my instructions are, essentially, that we can proceed with those two witnesses and that, if defence have an application to adjourn for the other two witnesses to attend, then that's an application for them to make.”

This meant that the prosecution wished to proceed with the two complainants giving oral evidence. They did not intend to rely on the absent independent witnesses, and did not apply to read their statements. The evidence included some evidentially important CCTV footage and also photographic evidence of injuries to the complainants.

Sian Evans’s statement said:-

“[Paul Harris] managed to break free from the people that were holding him back, he was muttering something but I couldn't make out what he was saying He ran across the road and punched [Toner Davies] in the back of his head I can't be sure what hand was used. He then repeatedly punched him anywhere that he could reach until he fell to the floor I couldn't tell you how many times he hit him or what the others were doing my focus was on the two males, I was shocked, I didn't know what to do.

When [Toner Davies] was on the floor [Paul Harris] started to kick him whilst he was on the floor, it seemed to be mainly to his body but 1t was anywhere he could get too It could have been anywhere but I definitely saw some blows to his body [Karen Harris] then started shouting towards me and [Holly Curran] saying "CALL THE POLICE, CALL THE POLICE", she was trying to drag [Paul Harris] off [Toner Davies].

It then seemed to stop for a second, I'm not sure if [Paul Harris]was pulled away or walked away but there was a short pause I walked over to the island because I wanted to try and get them all to stop As I was walking over [Matthew Woodhouse] came running over and kicked [Toner Davies] who was still on the floor, the kick made contact with [Davies]'s head or body

I went close to [Toner Davies]who was still on the floor and [Paul Harris] came over and shoved me out of the way which made me stumble back a little bit .He pushed me with both hands, one on each of my arms As soon as he pushed me he then kicked [Toner Davies] again who was still lying on the floor…”

The names of the people whose actions it is said by the prosecution she was describing have been added to assist understanding. This may or may not turn out to be a correct reading at trial.

The second independent witness, who had refused to attend, said:-

“I saw a male run [Paul Harris] and hit another male [Toner Davies] on the head from behind with a clenched fist. I cannot recall which fist it was. The male that was attacked was walking in the opposite direction to THE SHREWSBURY HOTEL along with a female.

……..

Following the initial punch the male fell to the floor to his left. I then recall seeing another 2 males run from across the road. These 2 males then began kicking the male on the floor along with the first male. They were kicking him all over his body.”

Both statements then go on to give evidence about the conduct of the females present with Paul Harris and Matthew Woodhouse, said to be the two female defendants. Ms Evans said that when she first became aware of the incident Paul Harris was being restrained by two men and two or three women. She gave a description of one of the women which fits Sian Woodhouse better than Emma Lloyd. This person, she said, came over after the men had left the scene and pulled Karen Harris’s hair. She then said:-

“There was a further 1 or 2 females trying to grab [Karen Harris]'s hair and punch her That lasted around 45 seconds to 1 minute before the females left as well”

Holly Curran said this about the conduct of females in the incident (she does not give any information to assist in identifying who “Female 2” might be):-

“The female at this stage was having her hair pulled by another female. I am not sure where female 2 came from. Female 2 was pulling the first females hair as she screamed for them to stop. Throughout the incident I could hear a female voice shouting “STOP IT”.

At this point, on Day 2 the 12 August 2025, counsel who then appeared for Paul Harris applied to stay the indictment as an abuse of process. He said that he wanted to cross-examine the absent witnesses and was very critical of the way in the CPS had conducted the case. He did not focus on the fact that the Crown intended to proceed without the evidence. The judge asked him whether he really wanted them to be present, and he said he would need to take instructions and his position was less strong than that of other defendants. This was because their evidence was very damning against Mr Harris and, if accepted, would lead to his conviction. A trial without it was very much in his interests.

Mr Paul Smith, who then as now appeared for Matthew Woodhouse and who now also appears for Paul Harris, also made a submission that the proceedings were an abuse of process, although he focussed on a challenge based on the CPS decision-making.

Ms Debra White for Sian Woodhouse said:-

“In a nutshell, the witnesses aren't here. The witnesses need to be here. Consideration and time needs to be given to how these witnesses can be brought to court. If they can't, then the defence need the opportunity to put in writing why they say it's unfair that these witnesses aren't here and what impact that has on justice in respect of these defendants.”

Ms Alexandra Carrier for Emma Lloyd said:-

“This witness needs to be here. It's a witness that says, "Throughout the incident, I could hear a female voice shouting, 'Stop it.'" Your Honour will have read from Miss Lloyd's defence statement that self-defence has been put forward.”

The judge adjourned the case until 13 August so that defence counsel could upload written submissions. It is important to record that nobody, at any stage, made an application that the trial should be adjourned and refixed at a time when all witnesses could be present. During the argument on 12 August, in the morning, the judge directed that a chronology be prepared and uploaded by 2pm on that day. This exchange took place:-

“JUDGE MEEGAN: If I order that the Crown do provide the nuts and bolts, the history of the Witness Care conduct in relation to these two witnesses, by 2 o'clock today. The Crown should keep this case, of course, under review. They have done so, I understand today and this morning, and nonetheless wish to proceed. That is, of course, their right, Ms Sims.

MS SIMS: Yes.

JUDGE MEEGAN: If these defendants are convicted, they will all receive a conditional discharge.”

During the afternoon, now on Day 2 following the loss of Day 1 because of the absence of a prosecutor, when the judge had indicated that the abuse of process applications would be determined on Day 3, he told the parties that if the case were to be re-listed it would not be tried until 2027 and said that he reserved the case to himself. There then followed this, on which reliance has been placed, which occurred during a discussion about a review of the case by the CPS which was expected to take place that day:-

“MS SIMS: -- the likely delay, given that, of course, this trial can't proceed this week in any event now.

JUDGE MEEGAN: Well, there's that as well.

MS SIMS: We may be in a circular point –

JUDGE MEEGAN: Yes.

MS SIMS: -- of the case needing to be reviewed again.”

Mr Smith told us that Ms Sims’ understanding reflected the view of all counsel and the judge, which was that so much time had been lost that there would not now be time for the trial to be completed that week. That is why she said that it could not proceed that week. However, no-one had made an application to adjourn the trial and the judge had made no such order.

On the following day, 13 August, the judge heard and rejected the applications to stay the case as an abuse of process. This was argued and decided as what is called a “limb 2” abuse application. This is slightly surprising because the problem was that two prosecution witnesses were absent and it had been suggested that this deprived the defence of the opportunity to cross-examine them. That was, if meritorious, a submission that a fair trial could not take place without their being present. What is less surprising is that the judge rejected the submission that this prosecution was an abuse of the process because, as he summarised it, “a stay is necessary to preserve the integrity of the criminal justice system”. He reviewed some decisions about the obligation of the prosecution to have at court all their witnesses if their presence is required by the defence at the PTPH. He then identified some prosecution failures in this case and concluded:-

“The test for misconduct is a high bar. It is not simply incompetence, it is not simply negligence, it is not simply inefficiency, but it is wilful improper behaviour. I do not find, on the balance of probabilities, that there has been deliberate obstruction, however egregious and unacceptable this conduct has been. So for all of those reasons, the application to stay the indictment is refused.”

Given that no-one had applied for an adjournment one might have expected that the next step would be the empanelling of the jury. Instead, the judge continued his ruling.

“I next turn to the question of whether this trial should be adjourned yet again. Different considerations apply in the exercise of my case management powers. I have regard to the overriding objectives, as set out in the criminal procedure rules at paragraph 1. I have regard to the interests of the two complainants, Toner Davies and Karen Harris, who are supportive of the prosecution, and have already indicated a willingness to attend. I also must have regard to dealing with a case justly, which amounts to dealing with the parties fairly, and dealing with the case efficiently and expeditiously.

A further adjournment would mean that this trial would not be able to be listed as a fixture -- as opposed to going into yet another warn list -- until 5 July 2027. This would mean a delay of another two years, so we would -- at that time in the summer in two years' time -- be approaching the eighth anniversary of the incident date. I do not find that such a delay is reasonable in all the circumstances. In fact, it is manifestly unreasonable. Paul Harris and Emma Lloyds are of good character. Matthew Woodhouse has some old convictions, and Sian Woodhouse has a reprimand for battery on her record, and thus, in my judgment, they too are, effectively, of good character. Each defendant has been subject to bail for almost six years.

It is in the interest of justice that the defence of these witnesses of court -- their absence prejudices their position in light -- as I have made clear -- the plea to defences of self-defence. The real mischief of the third and fourth defendant amounts to a summary only -- assault by beating offence. That is the real gravamen of the case against the third and fourth defendant, and it would never have been acceptable for a common assault without the other two defendants to have had such a delay as this.

All of this has been hanging over the defendants for an excessive period of time, and at a paragraph 1.1(h) of the criminal procedure rules provides that I also have to take into account the gravity of the offences charged. These are not the much serious forms of violence with grave harm caused. This case is not the most complex by any stretch. The consequences for the defendants -- Paul Harris and Emma Lloyds in particular -- a particular serious in the loss of their good name. I note also there has been no suggestion of repeat offending between the defendants and complainants, notwithstanding the history of parties between the two parties.

I also have to look at -- as is made clear in the criminal procedure rules -- the needs of other cases. Shrewsbury is a small court centre with a large backlog. This trial is one of the oldest on the system, and recently, we have seen an increase in the number of custody time limit cases being committed from the Magistrates' Court, which has had the result that a large number of sexual offence trials and serious drug supply trials will be heard here in the next year.

So, for all of those reason, I am not prepared to adjourn this trial. This decision I have made today, of course, amounts to a terminating ruling. In fairness to the Crown, I have to ask them now before I enter not guilty verdicts whether they want time, or whether they want to appeal my decision to the Court of Appeal.”.

The prosecution then complied with all the procedural requirements so that this court has jurisdiction to hear their appeal against that ruling. Through Ms Josephs KC, now leading Ms Sims before us, they advance two grounds. These appear at first sight to be contradictory. They are

In reality these are two different ways of addressing the part of the judge’s decision to which the Crown objects. They succeeded in resisting the application for a stay on the ground of abuse, and obviously do not complain about that. They also succeeded in persuading the judge that the trial ought not to be adjourned. The part of the ruling to which they object is the decision that a refusal to adjourn the case was a terminating ruling. If that was wrong, then they say the judge should either have proceeded with the trial then or adjourned to another date when it could proceed.

We have heard helpful and constructive submissions from all counsel, and we are grateful to them all.

The judge was certainly right to say that the prosecution had failed in its duty to make the two independent witnesses available to give evidence at the trial. In respect of Holly Curran that could have been remedied by a witness warrant since it appeared that she had failed to answer to a witness summons despite having confirmed that she would attend. When asked on Day 1, she refused to attend court because of the time it would take her to travel. A number of options existed in her case. She could have been arrested and brought to court, or she could have been offered a facility to give evidence remotely. Instead, the prosecution, through Ms Sims abandoned reliance on her evidence.

There was a serious failure in July 2025 to inform the court that Sian Evans would be on holiday in the week of the 11 August. That problem does not appear to have been appreciated until 7 August when a suggested way forward was suggested by a prosecuting lawyer to counsel then instructed but nothing was heard back. If the trial had proceeded she would not have been present to give oral evidence.

The judge was correct to reject the submission that the prosecution should be stayed as an abuse of process because of the need to protect integrity of the criminal justice system. It had not been submitted that a trial that week should be stayed because it would be an unfair trial. These two forms of abuse of process are often called “Limb 1 abuse” (where the proceedings are stayed because the trial would not be fair) and “Limb 2 abuse” (where the trial would be fair, but would be an affront to the justice system for some other reason). This analysis was explained in R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42. The submissions in this case relied on Limb 2, and not on Limb 1.

The only observation about the impact of the absence of the two witnesses on the fairness of the trial was contained in the part of the judgment when the judge refused to adjourn the case. He said:-

“It is in the interest of justice that the defence of these witnesses of court -- their absence prejudices their position in light -- as I have made clear -- the plea to defences of self-defence.”

It certainly was in the interest of justice that these two witnesses should give evidence. They were able to give highly relevant evidence. The impact of that evidence was to strengthen the prosecution case. The judge does not develop the suggestion that their absence would prejudice the defendants. Earlier, in his ruling on the abuse application, he had said this:-

“Turning now to argument and my analysis, the defence argue that there are parts of the evidence of these two witnesses that are helpful to their case. For example, Holly Kerran describes a female shouting, "Stop it," and potentially helps the case of Sian Woodhouse and Emma Lloyd. I have to have in mind, of course, the pleaded issuein this case, and the plead to defence is self-defence and denial. The defence further argue that the Crown cannot simply abandon these two witnesses at trial, and proceed with the remainder of the evidence -- they are bound witnesses. The argue the Crown's conduct, in this case, is such as to amount to misconduct. In response, the Crown say that whilst they concede there have been multiple failings, this is not in bad faith, and this is not improper conduct. They point to the delay as being due to lack of court availability.”

The prejudice which the judge perceived was to the female defendants’ case on self-defence. The only prejudice identified was that Holly Curran (who could have been produced at a trial that week to give evidence) recorded hearing an unidentified female voice repeatedly shouting “Stop it”. In the circumstances which prevailed the Crown would have been obliged to read any part of these two witness statements which any defendant wished to elicit. That may have been the only way in which the trial in their absence could be rendered fair. If it were not done, the judge could have stopped the case against any adversely affected defendant as being a Limb 1 abuse. In the unlikely event that Ms Sims had not agreed to read parts of the statements, there was nothing to prevent the defence doing so as part of their case. It would never have been stayed against the male defendants for this reason, because the absence of the independent witnesses was an advantage to them and no-one could plausibly suggest otherwise.

What, therefore, counsel for the female defendants have been driven to submit is that reading the relevant parts of the witness statements is not enough. They say that the loss of the ability to cross-examine and to put their cases to the witnesses is a disadvantage which renders the trial unfair. It may be possible, it was suggested, to cross-examine so that Holly Curran gives some further evidence which enables the jury to identify who shouted “Stop It”. That is speculative, but even if it turned out to be true, the cross-examiner would face the risk that this further material might prove that it was certainly not her client who was the peacemaker. On the papers, there is a reasonable possibility that this person might have been any of the females who were present. Following such a cross-examination that possibility might be excluded in the case of one or both of the female defendants, much to her or their disadvantage. We cannot envisage such reckless cross-examination actually occurring. The general thrust of the evidence of Holly Curran and Sian Evans is unhelpful to all defendants, except perhaps Emma Lloyd, but the suggested cross-examination might change that position to her disadvantage.

For these reasons, we conclude that a trial which would be fair to the defendants was possible in the absence of these two powerful prosecution witnesses for all four defendants.

That means that the judge was right not to adjourn the trial. The usual consequence of a decision not to adjourn a case is that it proceeds. The judge appears to have decided otherwise having been influenced by a decision of this court in R v Ng and another [2024] EWCA Crim 493. At [47] the court discussed the power of a judge to refuse to adjourn a case when no prosecutor was present to present it. The court said:-

“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.”

That was said in the context of an application to adjourn because no prosecuting advocate could be found to prosecute the case. In that case, therefore, if it was required to proceed the only possible outcome was the entering of a verdict of Not Guilty under section 17 of the Criminal Justice Act 1967. Here, though, the consequence of requiring the case to proceed was the swearing of the jury and the determination by the jury of the allegations in the usual way. Having decided to require the case to proceed, the judge then decided that it would not proceed by declaring that his decision on the adjournment application was a terminating ruling. This part of his decision is not reasoned at all. It is not up to the court to say whether a ruling is a terminating ruling or not. Section 58 of the Criminal Justice Act 2003 makes it clear that any ruling becomes a terminating ruling if the prosecution undertakes that the defendant will be acquitted if any appeal it may pursue fails. The Crown may elect to treat any ruling in that way. The court has no part to play in that election, only in managing it procedurally by allowing time as appropriate for a decision to be made. That had not happened when the judge said that his ruling was a terminating ruling which, at the time when he said that, it was not. That was an error which means that the decision was wrong in law and was a ruling which it was not reasonable for the judge to make. By virtue of section 67 of the Criminal Justice Act 2003, we may therefore reverse it. We do. The decision not to adjourn the case was correct, but the decision that this was a terminating ruling was not.

Of course, the various unmeritorious submissions which had been made had by now consumed two whole days, and the first day had been lost because there was no prosecutor. The trial would probably not have concluded by Monday 18 August, in time for two defendants to go on holiday. That was a different problem which may have provoked their counsel to seek an adjournment of the case. Not all defendants would have necessarily taken the same stance, since the male defendants (and perhaps the female defendants too, now that it had come to this) would have had a strong interest in the trial proceeding without the independent witnesses. Had they made the application, it would have had to be considered and decided. The option of allowing them to give evidence out of turn (if necessary) and then go holiday would have been considered. They could have been bailed to return to court for sentence in the event of conviction. Appropriate directions to the jury would have cured any prejudice caused by their absence.

The appeal is therefore allowed and the judge’s decision to terminate the proceedings is quashed. The indication as to sentence he gave during the argument should not have been given and is not to be accorded any weight in the proceedings hereafter. The defendants must understand that the proper sentence, whatever it is, will be passed in the event of a conviction. Given the different roles played by the different defendants it seems unlikely that the sentence will be the same in each case, but that remains to be seen.

We gave directions for the trial to take place at a venue away from Shrewsbury following our announcement of our decision at the end of the hearing. We said we would give our reasons in writing, which we have now done. [It is now known that the two male defendants entered guilty pleas to count 1 on 2 March 2026 and received suspended sentences. No evidence was offered in respect of the two female defendants on both counts 2 and 3 and against the male defendants on count 3, affray.]

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:-