Bourne – a decision to adjourn a trial and deny the Defence the opportunity present oral submission at a hearing when requested.
This section of the judgment clearly demonstrates the gross unfairness we encountered from the court when we sought to argue against an adjournment application.
49. First, with all respect to the legal adviser, it seems to me that he did not have sufficient information to enable him properly to grant an adjournment without at least requiring further details from CPS. It might be doubted whether any application for an adjournment was actually being made to him: the CPS’s letters of 22nd February 2017 both said that the Crown “will be seeking an adjournment”, but those words arguably fall short of making an application. On the assumption that an application was made, the legal adviser did not have the evidence now available to this court, and so knew only what was contained in the letter to the court of 22nd February. Whilst he was undoubtedly entitled to take into account the fact that the witness PC Carter was not himself at fault, the legal adviser’s observation that “the Crown have delayed in making the application” does not constitute a sufficient examination of the reason why an adjournment was sought, or of the seriousness of any default on the part of the CPS. Crucially, and as Mr Bourne’s solicitors pointed out in their letter of 23rd February, the legal adviser did not have any information from the CPS as to precisely when PC Carter had been warned and when he had responded. He therefore had no opportunity to assess the culpability involved in the CPS’s failure to conduct a timely review of this case because of a backlog of other work. He thus failed to consider what Picton (to which, of course, he referred) identifies (at (f), quoted above) as an important factor in relation to the merits of granting or refusing an adjournment.
50. Secondly, so far as can be seen from the evidence before the court today, the legal adviser granted the adjournment with no knowledge of its duration. He vacated the trial date, but merely directed the listing office of the court to fix an alternative date. So far as his correspondence shows, he appears not to have considered whether that would involve a comparatively short delay or a comparatively lengthy one. He appears not to have considered whether the likely period of delay would cause significant difficulties for witnesses trying to remember relevant circumstances, or for the availability of any expert witness, or for the defendant in trying to meet the allegations. It is true that the case had thus far made only one appearance before the court, and it was therefore possible in principle that an adjourned trial might still be heard within a reasonable period from the date of the relevant events; but without any information at all as to how long an adjournment would be likely to last, the legal adviser prevented himself from considering another important factor (at (e) in Picton), and also prevented himself from assessing the extent to which the granting of an adjournment would conflict with the need for expedition.
51. Thirdly, given that Mr Bourne’s solicitors in their letter of the 23rd February had specifically asked, if the court were minded to accede to the prosecution’s application, for a hearing at which “our full submissions can be made”, I am troubled by the fact that the application for an adjournment was dealt with on the papers. Crim PR rule 3.5(2)(e) makes it plain that the court may give a direction without a hearing. Thus the court is in principle entitled to decide that a fair decision can be made on the basis of written representations. It will often be appropriate to do so, and there may well be circumstances in which the court can proceed in that way without having given any specific indication to the parties that it is minded to make a decision on the papers rather than at a hearing. In the particular circumstances of this case, however, I do not think it was right for the legal adviser to treat the CPS’s letter of the 22nd February, and Mr Bourne’s solicitor’s letter of the 23rd February, as written representations, on the basis of which a decision would be made. Had the parties known that their correspondence was to be treated as the entirety of their representations on this contentious application, both parties would surely have wished to say more than they did. Mr Bourne’s solicitors had indeed made it perfectly plain that their letter did not contain their “full submissions”. Given that the court lacked the important information to which I have referred above, I am afraid I think it unsatisfactory for the legal adviser retrospectively to have informed the parties that he had made his decision on the basis of their correspondence.
52. For those reasons, with respect to the legal adviser, he made a decision which in my judgment was not properly open to him. Put shortly, he did not have sufficient information to enable him to make a properly-informed decision in accordance with the principles set out in Picton. He should either have permitted the parties to make their submissions at an oral hearing, or should have invited them to submit further written representations on the explicit basis that he would then make a decision on the papers and without a hearing. Although the listed trial date was fast approaching, the situation was not so critical that an immediate decision had to be made.