Ng & Anor, R. v

Factual and Procedural Background

Judges in criminal courts regularly face challenges due to under-resourcing of the criminal justice system. In this case, the judge dealt with the non-attendance of prosecuting trial counsel by staying the proceedings on the basis of an abuse of process (the Terminating Ruling).

The case concerns alleged offences arising from events on 7 March 2022. The prosecution alleges that the Respondents, Ms Ng and Mr O'Reilly, were involved in sending threatening messages and assaults involving multiple individuals, including use of a hammer. Both Respondents were charged with various offences and their cases were sent from the Magistrates' Court to the Crown Court.

The procedural history includes multiple adjournments: initially, the trial was set for November 2022 but adjourned to July 2023 to separate the Respondents' trials; then adjourned administratively to January 2024 due to lack of prosecuting counsel; finally, on 29 and 30 January 2024, prosecuting counsel was unavailable, and the trial did not proceed as the priority case went ahead and Mr O'Reilly was not produced.

Following these events, the judge stayed the proceedings on 8 March 2024, concluding that the failure to secure prosecuting counsel amounted to an abuse of process, citing concerns about systemic delays and the integrity of the criminal justice system.

Legal Issues Presented

1. Whether the failure of the prosecution to secure attendance of trial counsel justifies a stay of proceedings as an abuse of process.
2. The legal principles governing the exercise of the court’s power to stay criminal proceedings in cases of prosecutorial non-attendance.
3. The appropriate judicial response to systemic delays caused by under-resourcing and counsel unavailability in criminal trials.

Arguments of the Parties

Respondents' Arguments

• The failure of the Crown Prosecution Service (CPS) to secure prosecuting counsel on the trial date amounted to an abuse of process.
• This failure justified a stay of the proceedings to protect their right to a fair trial within a reasonable time.

Prosecution's Position

• Prosecuting counsel had a conflicting important matter (a sentencing hearing) which justified their unavailability.
• The absence of counsel did not constitute prosecutorial misconduct sufficient to justify a stay.
• The trial could have proceeded shortly after the unavailable date, and the non-attendance was not the sole cause of delay.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v B KR [2023] EWCA Crim 903; [2024] 1 WLR 1327	Legal principles governing abuse of process and staying criminal proceedings; distinction between two limbs of abuse.	Provided the framework for assessing whether a stay was justified; emphasized that staying proceedings is an exceptional remedy and requires misconduct or unfairness.
R v Clarke [2007] EWCA Crim 2532	Refusal of adjournment as a terminating ruling; implications for prosecution appeals under s. 58 of the Criminal Justice Act 2003.	Supported the proposition that refusal to adjourn can lead to a terminating ruling and clarified appeal rights.
R v B [2014] EWCA Crim 2078	Use of s. 17 Criminal Justice Act 1967 to enter not guilty verdicts when prosecution offers no evidence.	Confirmed that judges may enter verdicts of not guilty after refusing adjournments where prosecution cannot proceed.
R v Buttigieg [2015] EWCA Crim 837	Clarified procedural requirements for entering verdicts of not guilty and the power of the court in absence of prosecution witnesses.	Reinforced that judges have the power to enter verdicts of not guilty but must do so with clear and proper procedure.

Court's Reasoning and Analysis

The court acknowledged the judge’s understandable frustration with the non-attendance of prosecuting counsel and the significant pressures on the Crown Court system. However, it identified material factual inaccuracies in the Terminating Ruling, particularly regarding the reasons for previous adjournments and the actual causes preventing the trial from proceeding on 30 January 2024.

The court emphasized the settled legal principles governing abuse of process and the exceptional nature of staying criminal proceedings. It noted that the judge failed to properly apply the two-limbed test for abuse of process: there was no finding that a fair trial was impossible, nor was there evidence of prosecutorial misconduct of the severity required to justify a stay under the second limb.

The judge's approach was criticized for conflating delay and fairness issues with the abuse of process test and for focusing on punishing the prosecution rather than balancing the competing public interests. The court stressed that the integrity of the criminal justice system requires balancing the public interest in prosecuting crimes against maintaining public confidence, and that a stay should not be used as a disciplinary tool.

The court also addressed procedural and case management considerations, highlighting the importance of timely and transparent communication between counsel, the CPS, and the court regarding availability and listing issues. It noted judicial responsibility in listing cases effectively, taking into account advocate availability and the interests of justice, and referred to relevant Criminal Procedure Rules and guidance on remote hearings to improve efficiency.

Regarding the absence of prosecuting counsel at trial, the court explained the available judicial options, including adjournment and, in exceptional cases, terminating rulings under s. 17 of the Criminal Justice Act 1967. It clarified the procedural safeguards necessary when refusing adjournments that effectively terminate trials, ensuring prosecution has a fair opportunity to appeal.

Holding and Implications

The court ALLOWED the appeal and reversed the Terminating Ruling. It held that the stay of proceedings was based on factual errors and an incorrect application of legal principles, rendering the ruling unreasonable.

The case is ordered to resume in the Crown Court and to be listed for trial on the first available fixed date.

No new precedent was established; the decision reinforces the established legal framework for abuse of process and the exceptional nature of staying criminal proceedings. The ruling underscores the importance of accurate fact-finding and adherence to legal principles in judicial decision-making, particularly in the context of systemic challenges such as advocate shortages.