OEM & Anor, R. v

Factual and Procedural Background

This is an application by the prosecution (the Appellant) for leave to appeal under section 58 of the Criminal Justice Act 2003 against a Crown Court ruling refusing the prosecution's application to adjourn a trial fixed for 15 December 2025. The allegation is conspiracy to burgle dwelling-houses contrary to section 1(1) of the Criminal Law Act 1977. Two defendants (here called Defendant A and Defendant B) were charged in January 2024 and the matter was sent to the Crown Court. Multiple earlier listings were vacated: a June 2024 trial was vacated owing to the illness of a defendant; a December 2024 trial was vacated because of difficulties concerning the prosecution's mobile-phone evidence; a new date was fixed for 15 December 2025.

Neither defendant served a defence statement indicating alibi or the substance of their case. In December 2025, on a pretrial review, the court was informed the prosecution had no advocate available to conduct the trial. Efforts to secure prosecuting counsel failed; substitute counsel attended remotely on the trial day and explained a chambers/brief handling error. The trial judge (Judge Grout) refused the prosecution's application to adjourn and directed the trial proceed, effectively dismissing the application. The Prosecution Service sought leave to appeal that ruling to the appellate court (the judgment here being delivered by the Vice President, referred to below as Judge [Last Name]).

Legal Issues Presented

1. Whether the trial judge erred by proceeding on the basis that the prosecution's application to adjourn would be refused before properly considering its merits.
2. Whether the trial judge erred in principle in conducting the balancing exercise required when considering an adjournment application where prosecuting counsel was unavailable.
3. Whether the trial judge erred in finding that the Prosecution Service had failed in its responsibility to make proper or appropriate efforts to secure prosecuting counsel.

Arguments of the Parties

Appellant's Arguments (The Prosecution Service)

• The judge erred by treating the likely outcome as predetermined and not properly assessing the merits of the adjournment application.
• The judge misapplied the balancing exercise required by authority on adjournments where prosecution counsel is absent, undervaluing public interest in concluding prosecutions on the merits.
• The judge wrongly found the prosecution had failed in its duty to secure counsel; more detailed explanation of the steps taken should have been sought and considered.

Respondents' Arguments (Defendant A and Defendant B)

• Defence counsel resisted the adjournment and emphasised prejudice to the defendants from further delay, the defendants' personal circumstances (good character, employment, family, and mental-health difficulties), and the history of multiple listings.

Table of Precedents Cited

Court's Reasoning and Analysis

The appellate court (Judge [Last Name]) analysed the trial judge's decision against the principles set out in R v Katie Ng and Antony O'Reilly and the overriding objective in the Criminal Procedure Rules. Key points of analysis:

• The Prosecution Service should have provided fuller, contemporaneous detail to the trial court about the efforts made to secure prosecuting counsel and why those efforts failed; a written note explaining past efforts and proposed future steps would have been better practice.
• The trial judge erred in treating the reasons for the first two failed listings as irrelevant; those reasons were material to the balancing of whether to adjourn. The court found the June 2024 and December 2024 failures were not plainly the prosecution's fault (illness of a defendant; late objections and evidential deficiencies which prosecution sought to remedy), and the judge should have treated that history differently.
• The judge gave excessive weight to Judge Gumpert's note entered on 5 December 2025. That note, entered before any adjournment application was made to Judge Grout, warned of possible consequences but did not amount to a decision on an adjournment application; it was relevant but not decisive.
• In balancing factors, the appellate court found the trial judge undervalued the public interest in prosecuting serious offences involving many victims and criminal sophistication. The defendants' interests were important but did not outweigh the public interest and the proper administration of justice in this case.
• Considering the overall history, the nature of the offences, deficiencies in the defence case management (absence of defence statements and PTPH detail), and the Prosecution Service's conduct in seeking counsel, the correct balance was to adjourn and relist the trial at the earliest sensible date with directions to ensure prosecuting counsel would be available.

Holding and Implications

APPEAL ALLOWED

Holding: The appellate court granted leave to appeal, allowed the appeal, and held that the trial judge's refusal to adjourn was not a reasonable ruling. The court ordered that the case continue in the Crown Court and be relisted as soon as practicable so a new trial date can be fixed.

Implications:

• The direct effect is that the Crown Court must list the case promptly (the court noted an expectation that listing action would occur within 14 days) and fix a new trial date after liaison between the Resident Judge and the Presiding Judge to secure an appropriate court and date.
• The Prosecution Service was directed to give particular attention to ensuring prosecuting counsel is identified and has accepted responsibility for the trial when the case is listed; defence counsel availability should also be considered when fixing a date.
• Bail conditions continued while the appeal was determined.
• No novel legal principle was established by this decision; the court applied established authority (R v Katie Ng and Antony O'Reilly) and provided directions intended to replicate the exercise the trial judge ought to have performed.