RProsecution Service, R (on the application of) v Portsmouth Crown Court

Factual and Procedural Background

The Crown Prosecution Service (CPS) sought judicial review of a decision by Judge Hughes QC at the Portsmouth Crown Court on 20th December 2002. The judge allowed the appeal of the Appellant, who had been convicted in the Magistrates' Court for common assault and threatening behaviour, because the CPS was not present in court to oppose the appeal. The Appellant’s original convictions involved community punishment and compensation orders. The appeal had been adjourned multiple times, partly due to the Appellant’s failure to provide full instructions and court scheduling issues.

On the day of the appeal hearing, the Appellant’s case was scheduled to be heard at 10:30 am, but was listed behind another case which settled unexpectedly. The CPS counsel was prosecuting another case in the same building at the same time and was delayed. Despite informing court staff of her situation, she did not communicate directly with the judge or request an adjournment. When the appeal was called at about 11:07 am, the CPS counsel was absent, and the judge allowed the appeal in her absence. The CPS counsel arrived shortly after but was unable to have the case reinstated. The victims were inconvenienced by the delays and the outcome.

Legal Issues Presented

1. Whether the Crown Court judge acted lawfully in allowing the appeal in the absence of the prosecution counsel.
2. Whether the judge should have made inquiries or waited longer for the prosecution counsel to appear before allowing the appeal.
3. The proper exercise of judicial discretion balancing the interests of the appellant, the prosecution, the victims, and the public in criminal appeal proceedings.
4. The application of the Code of Conduct for the Bar of England and Wales in relation to counsel’s professional responsibilities when accepting overlapping briefs.

Arguments of the Parties

Appellant's Arguments

• This information was not available in the provided opinion.

Crown Prosecution Service's Arguments

• CPS counsel was not at fault for the absence, as she had a right to accept briefs in two courts simultaneously and take the risk of overlapping hearings.
• The court should accommodate the difficulties of counsel managing multiple cases, allowing some flexibility and “give and take.”
• There was no appreciable risk that counsel would not be able to undertake the brief, thus paragraph 701(e)(ii) of the Code of Conduct was not engaged.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Bournemouth Crown Court ex parte Weight [1984] 1 WLR 980	Distinguishing between allowing an appeal after full hearing and allowing it after premature termination without hearing all evidence.	Confirmed the court’s jurisdiction to quash the decision allowing the appeal prematurely.
R v Sutton Justices ex parte DPP [1992] 2 All ER 129	Requirement for the bench to pause and inquire about late arrival of counsel before dismissing or allowing an appeal.	Supported the principle that courts should wait a reasonable time for counsel and make inquiries rather than act on irritation.
R v Hendon Justices ex parte DPP [1967] 1 QB 167	The prosecution has a right to be heard and courts should not act unreasonably in dismissing cases due to prosecutor absence if the prosecutor is on the way.	Used to illustrate that the judge’s decision was unreasonable and potentially punitive rather than fair.
Attorney General's Reference (No 3 of 1999) 2 AC 91	Triangulation of interests in criminal law: accused, victim, and public interest must be balanced.	Applied to emphasise the need for the judge to consider fairness to all parties including victims and public interest.
DPP v Shuttleworth	Magistrates must consider defendant’s right to prompt trial, public interest in prosecution, and interests of those personally affected.	Referenced to highlight the balancing of interests the judge failed to properly undertake.
R v Snaresbrook Crown Court ex parte Input Management Limited (1999) 163 JP 533	Proper method of providing court information is by evidence, not informal notes.	Noted that the judge’s use of a note was inappropriate but not material to the judicial review decision.

Court's Reasoning and Analysis

The court analysed the facts surrounding the absence of prosecution counsel and the judge's decision to allow the appeal without waiting further. It emphasised that counsel has a professional duty under the Code of Conduct to act diligently, avoid unnecessary court delays, and not accept overlapping briefs without appropriate arrangements. The court found that the prosecution counsel failed to make proper inquiries or requests for indulgence to the judge, merely informing the usher of her engagement in another court.

The court noted the judge’s understandable irritation but concluded that the judge did not conduct the necessary balancing exercise between the interests of the appellant, the prosecution, the victims, and the public. The judge treated the absence of counsel as conclusive without considering the possibility of a short delay or alternative measures such as reporting the conduct or making cost orders.

Precedents established that courts should wait a reasonable time for counsel who is known to be en route and should inquire rather than act precipitously. The court found that the judge’s decision was unreasonable in the Wednesbury sense and that the appeal should not have been allowed at that time. The court also criticised the informal method by which the judge provided background information through a note rather than proper evidence, although this was not material to the decision.

Holding and Implications

The court QUASHED the decision of Judge Hughes allowing the appeal in the absence of prosecution counsel. The case was remitted to a differently constituted court for the appeal to be determined properly with all parties present.

The direct effect of this decision is to restore the prosecution's right to present its case on the appeal. No new legal precedent was established, but the ruling reaffirmed the importance of judicial discretion exercised fairly and the professional responsibilities of counsel to avoid unnecessary court delays. The decision serves as a caution against courts acting precipitously due to irritation and underscores the need to balance the interests of all parties, including victims and the public, in criminal proceedings.