R v OEM & Anor

THE VICE PRESIDENT: This is an application by the prosecution for leave to appeal under section 58 of the Criminal Justice Act 2003 against a ruling made in the Crown Court.

The provisions of section 71 of the Criminal Justice Act 2003 apply to these proceedings. The result of that is that no publication may include a report of them, save for certain specified basic facts, until the conclusion of all proceedings in this case. This judgment is an exception to that prohibition and can be published immediately. Factual matters which might lead to the case it concerns being identified are omitted. The appeal concerns only the procedural history of the case and not the merits of the prosecution allegation and nothing in it could prejudice the jury’s consideration at trial, in the unlikely event that any juror became aware of it. It may be of value to judges in the Crown Court dealing with similar situations.

The case concerns an allegation of conspiracy to burgle dwellings, contrary to section 1(1) of the Criminal Law Act 1977. These two defendants, as they are in the Crown Court (respondents as they are here), are alleged to have conspired together and with others to carry out [a substantial number of] burglaries of dwelling-houses in 2023.

The prosecution case could be described as circumstantial in that it depends upon linking these defendants with the burglaries by reference to the use of vehicles which can be associated with them and by the use of mobile phone evidence, identifying the use in the relevant areas at the relevant time of mobile phones which it is said can be attributed to them. That is of significance because both defendants live in a city and the burglaries took place in a different place. The presence of their mobile phones therefore in that different place at material times on the face of it warrants some explanation.

The allegation therefore is a serious one. It involved a very significant number of dwelling-house burglaries. There were features of the method by which the burglaries were executed which showed some signs of criminal sophistication: phones were switched off by their users at material times, a vehicle was hired for use in the criminal activity and it involved a number of people working together in a group in order to commit burglaries. It may be said that although it has features which are serious, it is not a particularly complicated or difficult case to conduct. Sadly, its history, after being sent to the Crown Court, is not one which makes for happy reading.

OEM was charged with the offence on 4 January 2024 and QEO was charged a week later on 11 January. Both cases were sent to the Crown Court. A plea and trial preparation hearing ("PTPH") took place on 2 February 2024. Despite the technical term given to that hearing, the PTPH, in fact there were no pleas and there was very little preparation involved in whatever it was that happened on that day. At that stage there were other people also indicted and charged with this conspiracy. They made a successful application to dismiss the case as against them and therefore disappear at least for now from the narrative. That application was granted in March 2024.

A case management hearing seems to have been held on 19 April 2024. By that stage the trial had been fixed to start on 24 June 2024. That was an early trial date which had been fixed because of the relevance at that time of custody time limits.

QEO became too unwell to be tried. That caused the June 2024 trial date to be vacated. The trial was then fixed for 16 December 2024 with a time estimate of five days.

There was a further hearing on 20 June 2024, by which stage QEO was said to be fit, and an arraignment took place. Both defendants entered not guilty pleas.

Neither defendant had stage served a defence statement setting out their case. It might be thought that such a statement would be necessary in their interests if a substantial defence to the allegation were ever in fact to be advanced. If they were not in the vehicle or vehicles at the time and times when these offences were committed, where were they? Their defence statement might in these circumstances be expected to contain some details of alibi. Nevertheless, there was and remains total silence on behalf of both defendants as to what in substance their case may be.

On 6 November 2024 as the new trial date was approaching, there was a further hearing which was required because there had been some difficulty in relation to the service by the prosecution of its evidence relating to the mobile phones. A direction was made that any further telephone evidence should be served by 8 November 2024. Further difficulties however continued to prevail in that regard which resulted in the trial date being vacated and a new trial date being fixed for 15 December 2025. It appears that the difficulties arose because objections were being taken on behalf of the defendants to the sufficiency of the prosecution evidence in relation to the whereabouts of particular mobile phones at particular times.

In February 2025 the prosecution sought to fill such gaps as there were by serving a statement with maps attached to it which set out its case as to what could be learned from the use of various mobile phones at particular times during the conspiracy period. We understand that on behalf of the defendants attempts were then made to secure expert evidence for the defence which may seek to challenge those findings set out in the new prosecution evidence.

As we shall see, in December 2025 both defendants attended at the Crown Court for their trial saying that they were ready to deal with it. Neither defendant had served any expert evidence dealing with the mobile phones.

In that situation the court decided to hold a pretrial review. That occurred on 1 December 2025. That was the first time when the court was alerted to what became a decisive problem in the conduct of this trial in December 2025. Counsel informed the court that there would be no prosecuting counsel available to conduct the trial on the date which had been fixed. The prosecution informed the court that in those circumstances it intended that the case would be reviewed and the judge decided to adjourn the pretrial review for a few days until 5 December 2025. On that adjourned date the prosecution informed the court that a review had been carried out but that they intended to continue to prosecute the case to trial. They did not apply to adjourn the trial from 15 December 2025 but said that counsel who had held the brief for some considerable period of time would be unable to conduct the trial on 15 December herself. The court was therefore informed that efforts would continue to find a replacement counsel to prosecute the matter between 5 December and 15 December 2025.

This caused the judge dealing with that pretrial review to enter a note on the Digital Case System in these terms:

That note was undoubtedly intended to act as a strong incentive on the Crown Prosecution Service to redouble their efforts to find counsel to prosecute the case and we have no reason to suppose that it failed in that objective. However, such efforts as were made failed. Late on Friday afternoon on 12 December 2025 the clerk to counsel who had previously been instructed informed the court that no counsel had been identified who could prosecute the case as a trial but that the counsel for whom he was acting would be able to attend to attempt to assist the court on the morning of the trial date by CVP (that is to say attending remotely). That is what occurred. A hearing took place on 15 December. Counsel attended by CVP. She explained that she had moved chambers since she had first accepted the brief and that when she moved chambers there had been a failure in communication. The result of that was that her previous chambers understood that she had taken the brief with her and would deal with it; she had understood that she had done the opposite and left it with her previous chambers. This meant that during 2025 until the problem was appreciated no one was taking responsibility for finding somebody who could prosecute the case. By the time that problem had been appreciated the trial date was imminent and, as we have said, attempts to find counsel failed.

In those circumstances there was a contested application to adjourn the case. Counsel invited the judge to take the case out of the list and to refix it for a date when it was hoped that counsel would have been identified to prosecute it and the trial could take place. That was resisted on behalf of both defendants. It resulted in a ruling by the judge. The judge who had the conduct of the trial and who made that ruling, His Honour Judge Grout, was a different judge from the judge who had conducted the pretrial review a week or so earlier. He gave an extempore ruling. Some parts of it are not entirely clear. That may be an error in transcribing and we do not attribute too much significance to it.

It is however clear enough that the judge was concerned about the passage of time which had elapsed since the case had first been sent to the Crown Court and about its impact upon the defendants. He observed that there had been three trial listings already, of which the one with which he was dealing was the third. He said: "... for present purposes I do not think it is necessary to look into the reasons why the first and second trials were not effective." We have already rehearsed those reasons in giving a narrative of the chronology above.

He was impressed by the fact that the trial date of 15 December 2025 had been known to the parties for approximately one year by the time it arrived. He then said this:

The judge then set out the note by Judge Gumpert which we have quoted in full above. He commented:

The judge then set out the explanation which he had received from counsel about the reasons for her unavailability to conduct the trial and about the efforts which had been made to find someone else who could.

He then set out the submissions that had been made on behalf of the defendants about the impact on them. OEM is a person of good character who had been and was in work and has a family. QEO is a person who suffers from difficulties with his mental health from time to time. It was not suggested that those difficulties were caused by these proceedings or the delay in concluding them, but the submission was made on his behalf that they were adding to his suffering unnecessarily. The judge recorded those submissions and accorded them considerable weight. He reminded himself of the decision of this court in R v Katie Ng and Antony O'Reilly [2024] EWCA Crim 493 and cited parts of the judgment of the court given by the Lady Chief Justice in that case.

He then moved to his decision. He began by repeating the difficulties which these proceedings have caused to the defendants. He said:

The judge then went on to identify other people, including witnesses and victims whose interests might be important. He concluded:

Finally, the judge turned to address the fact that the allegation against these defendants is a serious one. He said:

The judge then concluded his ruling by referring to his view that because both of these defendants were on bail any new trial date would not occur before 2029. Finally, he said:

The prosecution, it is now accepted, complied with the necessary procedural requirements in order to clothe this court with jurisdiction to entertain the appeal which they now urge upon it.

The grounds of that appeal are threefold. First, the judge erred as the court proceeded on the basis that the application to adjourn would be refused before considering the merits. Second, the judge erred in principle when conducting the balancing act required when considering the application for an adjournment. Third, the judge erred in finding that the CPS had failed in their responsibility to make proper or appropriate efforts to secure counsel.

The appeal has been argued before us by Ms Gemma White on behalf of the prosecution and resisted on behalf of the defendants by Mr Moroney on part of OEM and Mr Miah on behalf of QEO. Both Mr Moroney and Mr Miah appeared on behalf of their clients at the trial. Ms White is not counsel who then appeared on behalf of the prosecution. They have set out submissions orally and in writing in support of their positions. It is unnecessary to set those out at length but we have them well in mind.

The law, as the judge appreciated, was clearly and comprehensively set out by the Lady Chief Justice in R v Ng. We do not intend to paraphrase, summarise or in any way restate what was there said. We simply set out the relevant paragraphs:

It will be noted that at two points in the course of those paragraphs the court refers to the seriousness of the offence charged as being a particularly material factor. It will also be noted that the court said 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."

We agree with the submission on behalf of the defendants that the information supplied by the Crown Prosecution Service to the court about the efforts which had been made to identify counsel who could prosecute this trial on 15 December 2025 was wanting. The court should have been given more detail than it was about those efforts and about the reasons why they had failed to bear fruit. It is clear from the history of the case which we have recited already that on 5 December 2025 they had thought that they had reasonable prospects of securing counsel to prosecute the case and had therefore been disappointed in that hope. Precisely how that came about was a matter which the court was entitled to know.

That information has now been supplemented before us orally by Ms White who accepted that in circumstances of this kind it would indeed be better practice for the Crown Prosecution Service to supply the judge, dealing with this kind of situation, with a written note setting out in short terms what had been done and how it had failed. This is not only important for the purposes of understanding the recent history of the case, but it is also important because if the court is to adjourn the case it needs to have some confidence that the position will not simply be repeated come the next trial date. The note therefore from the Crown Prosecution Service which the court ought to have should deal with the efforts which had already been made and should say what the Crown Prosecution Service proposes to do in the future, if its application is allowed, to ensure that when the new trial date arrives so also does prosecuting counsel.

Having made that criticism of the presentation of the prosecution position before the judge, we now turn to the reasons for his conclusion. We consider that the judge was in error in saying as he did that the reasons for the failure of the trial to conclude during the first two trial listings were irrelevant. On the contrary, we consider that they were important. If the prosecution was attending for the third time, having failed in some important respect and therefore craving the indulgence of the court by breaking the fixture and refixing it, that would be a matter which would tell against it. On the other hand, if the first two adjournments were not the fault of the prosecution and had arisen for other reasons altogether, then they would be in a much stronger position. The judge failed to articulate or to give effect to that expression of the proper approach to previous failed trial listings and in so doing in our judgment fell into error.

As we have said above, the June 2024 trial listing failed because of the illness of one of the defendants; the December 2024 trial listing failed because of uncertainty about the status of the prosecution evidence in relation to the mobile phones; late objections were taken on behalf of the defendants to the sufficiency or admissibility of that evidence which had not been foreshadowed either in the PTPH form or in any certificate of trial readiness or indeed, and perhaps most strikingly, in any defence statement. In those circumstances it was decided that the prosecution should be given the opportunity to remedy any defect that may have become apparent in its evidence. Had the defence given proper warning of its position in a defence statement that adjournment would not have been necessary because, we assume, the appropriate remedial steps would already have been taken. In those circumstances, we consider that it is wrong to attribute fault for that second adjournment to the prosecution. It is perhaps ironic that both Mr Moroney and Mr Miah, in the course of arguing their response to this appeal, rely on the importance of proactive case management. Proactive case management involves the co-operation of all parties. In the case of the defence it involves proper completion of the PTPH form and the service, in a timely way, of a defence statement. It does not involve late ambush.

The judge was therefore required to balance the various relevant considerations in deciding the application to adjourn against the background of a history which he should have viewed differently from the way in which he did. That balance was also, in our judgment, affected in a way which also involved error by the treatment by Judge Grout of Judge Gumpert's note entered on the system on 5 December 2025. Judge Gumpert had not heard any application to adjourn the trial. No such application, quite specifically, was advanced before him. Accordingly, he was in no position to say what the outcome of it would be, if and when it were ever made. The fact that he had warned the Crown Prosecution Service of a possible result of any failure to field counsel to prosecute the case on its behalf was relevant but it could not be in any sense decisive in relation to an application to adjourn which was to be made on a different date before a different judge. Judge Gumpert was quite entitled to record that note and Judge Grout was entitled to have regard to it but he should not in any sense have dealt with it as decisive.

Moving then to the balance as we consider it should have been struck. First of all, by modern standards unhappily this is not an old case. The criminality which is alleged occurred in the last quarter of 2023. There are a great many cases in the criminal justice system which are much older than this one. In those circumstances the age of the case ought to have told in favour of allowing some further time so that it could be justly decided according to the evidence, rather than causing it to come to an end.

The interests of the defendants are of course of significance but their interests have to be assessed against the background which we have just recited. It is indeed a difficult and damaging thing to have to await a serious criminal trial for a period in excess of two years. It will have adverse consequences for those who are subjected to it. However, those adverse consequences are by no means unusual or exceptional in the context of the criminal justice system as it is in 2026. There was nothing about the interests of these two defendants which was of such weight that it should drive the court to frustrate rather than serve the interests of a fair trial with a just outcome.

We consider also that the way in which the case was advanced on their behalf was a material factor to which the judge ought to have had regard. We have already referred to the absence of a defence statement, the absence of any up to date certificate of trial readiness and the complete absence of anything on the PTPH form. These defendants could certainly have conducted themselves in such a way as to enable their trial, if they had wanted to do so, to take place in December 2024. It was their failure to give early notice of their evidential position in relation to the mobile phones which caused that date to become unstuck.

Finally, we consider that the judge erred in addressing in terms the interests of the defendants, victims, witnesses and jurors. What he did not do was to have specific regard to the public interest. These proceedings strongly engaged the public interest. This is a serious offence with a large number of victims by expert criminals. Whether those expert criminals were these two defendants or some other people will in due course be for the jury to consider. But it is important in the public interest that criminality of this kind should find a response in the criminal justice system. We consider that the judge undervalued that important element of the balance which he struck.

For these reasons, we consider that the judge made a ruling which was not a reasonable ruling for him to make and we give leave to the prosecution to appeal and we allow the appeal. The judge ought to have adjourned the trial to a date to be fixed and we will make an order which replicates what we consider should have happened. The order that we make is that the case should continue in the Crown Court, that it should be listed in that court as soon as possible so that a new trial date can be fixed. That trial date should be determined after the Resident Judge at the Crown Court has liaised with the Presiding Judge so that a court can be identified where a trial can take place at the earliest sensible and appropriate point. It need not be in the original Crown Court; it could take place in any convenient Crown Court. Efforts should be made, given its unfortunate history, to identify an early trial date.

We also direct that the Crown Prosecution Service should give particular attention to the necessity of identifying prosecuting counsel who can conduct the trial whenever it is fixed so that when the case is listed for fixing at the Crown Court there should be a counsel present who has accepted the responsibility of prosecuting this case so that the date can be fixed with their diary availability in mind. It is also of course true that the availability of defence counsel will be a matter of importance.

In giving those directions, we attempt to replicate an exercise which we consider the judge himself ought to have carried out, instead of refusing to adjourn the case. The judge simply accepted that if he did adjourn it, it could not be tried before 2029. That was an unnecessarily defeatist approach to an application of this kind. If the alternative to finding a new trial date is that the proceedings are brought to a summary end in the way that the judge sought to achieve, then clearly the case has acquired a degree of priority it may not previously have had. In those circumstances, we would expect a judge dealing with an application of this kind to liaise directly with the Resident Judge, to ensure that the listing of the case, if it were to be adjourned, would reflect that priority which it has now achieved. We consider that the judge fell into further error by failing to do that so far as the record of proceedings which we have seen reveals.

Having said all that, we leave the case with this note of caution. In our judgment this is a case which is at a level of seriousness which might eventually result in an order of the kind which the judge made. There is a very high public interest in these proceedings being prosecuted to a conclusion, whatever that conclusion might be. It is nevertheless not a case at the very high level of seriousness referred to by the Lady Chief Justice in Ng where the court must tolerate almost any number of adjournments in order to ensure that it is brought to trial. Eventually a point will come when a judge may have to make an order of the kind which the judge made in this case. That point had certainly not arrived at the point when he did that, however.

Therefore, as we have said, we give leave to appeal, we allow the appeal and we will make the order which we have indicated follows. Is there anything else we need to do?

MS WHITE: No, thank you, my Lord. The bail conditions continued whilst the appeal was being determined. I will make sure the local CPS area communicates with the Crown Court to identify a listing as soon as possible.

THE VICE PRESIDENT: Yes. We would hope and expect that that listing would take place within 14 days.

MS WHITE: Thank you. I will relay that. Thank you very much. Mr Miah?

MR MIAH: My Lord, thank you for your judgment.