Adjournment for Absent Prosecuting Counsel: Balancing CrimPR 1.1 with Public Interest, Prior Listing History, and CPS Accountability

1) Introduction

OEM & Anor, R. v ([2026] EWCA Crim 411) is a prosecution appeal under section 58 of the Criminal Justice Act 2003 against a Crown Court ruling refusing an adjournment when the prosecution had no advocate available to conduct the listed trial.

The respondents (defendants below), anonymised as OEM and QEO, face an allegation of conspiracy to burgle dwellings contrary to section 1(1) of the Criminal Law Act 1977, involving numerous dwelling burglaries in 2023. The prosecution case is described as substantially circumstantial, relying on vehicle links and mobile phone evidence (including cell-site/location inference and switching-off behaviour).

The case’s significance lies not in the merits but in its procedural history: multiple broken fixtures, late disclosure/evidential disputes (notably relating to mobile phone material), and ultimately the breakdown in securing prosecuting counsel for the third listed trial date. The Court of Appeal’s judgment (published notwithstanding reporting restrictions under section 71 of the Criminal Justice Act 2003) is intended to guide Crown Court judges confronting similar “no prosecuting counsel available” scenarios.

Key issues

  • What is the correct approach to an adjournment application where a trial cannot proceed due to the absence of prosecuting counsel?
  • How should a judge conduct the CrimPR 1.1 overriding objective balancing exercise, including public interest, seriousness, delay prejudice, and the reasons for prior ineffective listings?
  • What weight (if any) should be given to a prior judge’s case-management note warning of consequences if counsel is still absent?
  • What information should the CPS provide to enable a properly informed decision, and how should listing be managed if adjournment is granted?

2) Summary of the Judgment

The Court of Appeal (Criminal Division), per the Vice President, allowed the prosecution appeal and held that the Crown Court judge’s refusal to adjourn was not a reasonable ruling. The Crown Court ought to have adjourned the trial.

The court emphasised that:

  • The trial judge erred in treating the reasons for earlier broken fixtures as irrelevant; they were material to the fairness of the balancing exercise.
  • The trial judge gave undue decisiveness to a prior judge’s warning note; it could be a relevant factor, but not determinative.
  • The judge undervalued the public interest in allegations of serious, multiple-victim burglary conspiracy being resolved on the merits.
  • The judge adopted an “unnecessarily defeatist” approach in assuming any adjourned trial could not occur before 2029, without active listing prioritisation.

The Court ordered the case to continue in the Crown Court, be listed promptly to fix a new trial date (potentially at another Crown Court), with liaison between the Resident Judge and Presiding Judge to identify the earliest appropriate fixture. It directed the CPS to ensure prosecuting counsel is identified in advance so the refixed trial date can be aligned with counsel availability.

While allowing the appeal, the court also issued a caution: this is a case of seriousness that might eventually justify termination if adjournments continue indefinitely, but that point had not been reached here.

3) Analysis

A) Precedents Cited

R v Katie Ng and Antony O'Reilly [2024] EWCA Crim 493

The controlling framework is taken directly from R v Katie Ng and Antony O'Reilly [2024] EWCA Crim 493, where the Lady Chief Justice addressed circumstances in which a trial cannot proceed because the prosecution is unrepresented.

Two propositions from Ng are central and were expressly reproduced:

  • 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.”).
  • Although there is a route by which proceedings may be terminated when the prosecution is unrepresented, a judge must ordinarily confront the implied or explicit adjournment question by applying the CrimPR 1.1 overriding objective. In “most cases an adjournment… will be the right answer,” and “the more serious the case… the more likely this is to be true.”

In OEM, the Court of Appeal did not modify Ng; rather, it policed the fidelity of the Crown Court’s application of Ng. The ruling below was found to be inconsistent with the balancing discipline required by Ng, particularly in its treatment of seriousness and public interest, and in its approach to the history and responsibility for prior broken fixtures.

B) Legal Reasoning

1. The decision must be informed: CPS must provide sufficient detail

The Court accepted defence criticism that the CPS’s account of its efforts to secure counsel was “wanting.” It approved (and effectively endorsed as best practice) the proposition that the CPS should provide the judge with a written note summarising:

  • what steps were taken to obtain counsel and when;
  • why those steps failed;
  • what will be done if an adjournment is granted to ensure counsel attends next time.

This serves two functions: (i) it enables a properly informed interests-of-justice balancing exercise; (ii) it provides the court with rational confidence that adjournment will not simply reproduce the same failure at the next fixture.

2. Prior ineffective listings: reasons matter and must be weighed

The trial judge stated it was unnecessary to examine why the first and second trials were ineffective. The Court of Appeal held that to be an error. The reasons for earlier broken fixtures are material because they shape where responsibility lies and how much “indulgence” is being sought.

The Court of Appeal’s evaluation of the chronology was pivotal:

  • The first ineffective trial listing was due to a defendant’s illness—not prosecution fault.
  • The second ineffective listing arose from issues concerning mobile phone evidence, but the court noted that late objections were taken by the defence without foreshadowing in the PTPH material, certificates of readiness, or (crucially) a defence statement. The Court treated this as inconsistent with proactive case management and described the dynamic as “late ambush,” concluding it was wrong to attribute fault to the prosecution for that adjournment.

The practical consequence is doctrinal: when assessing a third adjournment request, the court must consider whether earlier delays were prosecution-created or arose from other causes (including defence case-management failures). That inquiry affects the weight given to prejudice from passage of time and the fairness of refusing an adjournment.

3. The status of a prior judge’s warning note: relevant but not decisive

A week before the trial, another judge entered a Digital Case System note warning that if there was still no prosecution advocate on the trial date, the “likely result” would be NG verdicts or a stay for want of prosecution. The trial judge regarded this note as “important” and treated it as clarifying what the outcome would be.

The Court of Appeal drew a bright line:

  • The prior judge had not heard an application to adjourn and was “in no position” to determine its outcome in advance.
  • Such a note can properly be recorded and can be taken into account, but it cannot be treated as determinative of the later adjournment decision.

This is an important discipline in multi-judge case management: administrative warnings can encourage compliance, but they do not displace the later judge’s duty to undertake an independent, structured CrimPR 1.1 assessment on the evidence and submissions then available.

4. Recalibrating the CrimPR 1.1 balance: public interest and seriousness

The Court of Appeal held the judge’s balancing exercise was skewed.

(i) Age of the case
While delay was substantial (over two years), the court observed that “by modern standards unhappily this is not an old case,” noting that many cases in 2026 are older. This contextualisation matters: delay prejudice is real, but it must be evaluated against system realities and against the consequences of terminating serious proceedings without a merits resolution.

(ii) Defendant prejudice
The court accepted delay is “difficult and damaging,” but found nothing exceptional in the defendants’ circumstances to justify frustrating a fair trial. It also treated the defence’s own case-management posture (no defence statement; no meaningful PTPH indication; readiness assertions without reciprocal disclosure) as relevant to how much weight could fairly be placed on prejudice from delay.

(iii) Public interest was insufficiently addressed
The Court of Appeal criticised the judge for focusing on defendants, victims, witnesses and jurors but failing to give “specific regard” to the public interest. The allegations involved a serious offence, many victims, and “expert criminals.” The public interest in adjudicating such allegations on the merits was therefore powerful and undervalued in the ruling below.

5. Listing realism vs. listing defeatism: duty to pursue priority listing

The trial judge reasoned that because the defendants were on bail, a new trial date would not occur before 2029, and used that as a weight against adjournment. The Court of Appeal rejected this as “unnecessarily defeatist.” Where the alternative is termination of proceedings, the case “has acquired a degree of priority.”

The judgment implicitly articulates an operational expectation: judges confronted with this dilemma should liaise with the Resident Judge (and, where appropriate, the Presiding Judge) to achieve an earlier fixture, potentially in another Crown Court. This is framed not as aspirational case management, but as part of correctly performing the interests-of-justice evaluation—because the feasibility of a timely adjourned trial is itself a relevant factor.

C) Impact

1. Practical guidance for Crown Courts

The decision strengthens and operationalises Ng by identifying common errors and prescribing practical safeguards:

  • Do not treat prior listing failures as irrelevant; apportionment of responsibility affects the balance.
  • Do not let administrative “warning notes” become outcome-determinative; the adjournment decision must be freshly and independently reasoned.
  • Do not assume multi-year delay is inevitable; engage listing leadership to prioritise a case where termination is otherwise contemplated.

2. CPS practice: evidencing efforts and future assurance

The court’s endorsement of a written CPS note (steps taken, why they failed, and a plan to prevent repetition) is likely to become an expected standard in “no advocate” crises. It reduces the risk of judges refusing adjournments on an evidential vacuum and increases accountability for repeated failures.

3. Defence case-management conduct becomes explicitly relevant

The court’s critique of absent defence statements and late evidential objections signals that defendants cannot rely on delay prejudice as a trump card where their own procedural choices contributed to broken fixtures. This does not reverse the burden of proof, but it does affect the assessment of fairness and the weight accorded to delay arguments in adjournment disputes.

4. Termination remains possible—but as an endpoint, not a shortcut

The Court of Appeal’s cautionary note is significant: in a case of this seriousness, an eventual refusal to adjourn may become justified if the system cannot deliver trial within a tolerable period and failures persist. However, the judgment insists that the “endpoint” threshold had not been reached here, reaffirming that termination for absent prosecuting counsel should remain exceptional and proportionate.

4) Complex Concepts Simplified

  • Section 58 Criminal Justice Act 2003: permits the prosecution (in defined circumstances) to appeal certain Crown Court rulings, subject to procedural requirements.
  • Section 71 Criminal Justice Act 2003: imposes reporting restrictions on certain proceedings; here, the court explains why this judgment can be published immediately in anonymised form.
  • Adjournment: postponing the trial to a later date. When prosecuting counsel is absent, the court must decide whether fairness and justice require postponement or whether proceedings should be brought to an end.
  • CrimPR 1.1 / overriding objective: the Criminal Procedure Rules require courts to deal with cases justly, including acquitting the innocent, convicting the guilty, dealing efficiently and expeditiously, respecting parties’ rights, and considering the interests of witnesses and victims.
  • PTPH (Plea and Trial Preparation Hearing): an early hearing intended to set pleas, identify issues, and manage trial preparation. In this case, the court highlights how ineffective early case definition can contribute to later collapse of trial dates.
  • Defence statement: a formal document (in many Crown Court cases) setting out the nature of the defence and areas of dispute, designed to prevent surprise and enable effective trial management. The court treated the absence of defence statements as relevant to the history of delay.
  • “Late ambush”: raising late objections or issues (e.g., about admissibility or adequacy of evidence) without timely notice, undermining proactive case management.
  • Stay for want of prosecution: a court order halting proceedings, potentially permanently, because continuing would be unfair or oppressive—here discussed as a possible consequence if no prosecutor is available, but treated as a last resort.
  • NG verdicts: “Not Guilty” verdicts. The judgment mentions this as a potential consequence referenced in the earlier case-management note, though the appeal concerns adjournment rather than directing verdicts.
  • CVP: Cloud Video Platform, allowing remote attendance.

5) Conclusion

OEM & Anor, R. v [2026] EWCA Crim 411 reinforces that where a trial cannot proceed because the prosecution is unrepresented, the default position—especially in serious cases—is ordinarily to adjourn, not terminate, unless a properly reasoned CrimPR 1.1 analysis shows the interests of justice require otherwise.

The judgment’s key takeaways are:

  • The reasons for previous broken fixtures are material and must be weighed; it is an error to disregard them.
  • Prior judicial warnings about what might happen if counsel is absent are relevant but not determinative.
  • The court must give explicit weight to the public interest in adjudicating serious multi-victim allegations on their merits.
  • Judges should not assume extreme listing delay as inevitable; where termination is on the table, active listing escalation and prioritisation is required.
  • The CPS should support adjournment applications with a clear written account of steps taken and a plan to prevent recurrence.

In the broader legal context, the decision is an important application of R v Katie Ng and Antony O'Reilly [2024] EWCA Crim 493: it translates principle into operational expectations for both the CPS and the Crown Court, emphasising that efficient case management and public confidence in criminal justice require structured reasoning, properly evidenced applications, and realistic—but not fatalistic—listing solutions.