Burglaries: Trial to go ahead
The Crown Prosecution Service (CPS) was left without counsel for a serious prosecution after a “failure in communication” between a barrister and the chambers she had recently left, appeal judges have heard.
His Honour Judge Grout refused an adjournment as a result, but the Court of Appeal upheld an appeal against his decision.
Lord Justice Edis said he agreed with the defendants that the information supplied by the CPS to the Crown Court about its efforts to find counsel was “wanting”.
Edis LJ, vice-president of the criminal division of the Court of Appeal, said the barrister who had previously been identified as prosecuting the case attended the Crown Court remotely to “attempt to assist” the court.
“She explained that she had moved chambers since she had first accepted the brief and that when she moved chambers there had been a failure in communication.
“The result of that was that her previous chambers understood that she had taken the brief with her and would deal with it; she had understood that she had done the opposite and left it with her previous chambers.
“This meant that during 2025 until the problem was appreciated no one was taking responsibility for finding somebody who could prosecute the case. By the time that problem had been appreciated the trial date was imminent and, as we have said, attempts to find counsel failed.”
Edis LJ said the Crown Court “should have been given more detail than it was” by the CPS about efforts to find counsel “and about the reasons why they had failed to bear fruit”.
Counsel who appeared for the CPS at the appeal accepted “that in circumstances of this kind it would indeed be better practice for the Crown Prosecution Service to supply the judge, dealing with this kind of situation, with a written note setting out in short terms what had been done and how it had failed.
“This is not only important for the purposes of understanding the recent history of the case, but it is also important because if the court is to adjourn the case it needs to have some confidence that the position will not simply be repeated come the next trial date.”
The Court of Appeal heard in R v OEM and another [2026] EWCA Crim 411 that the defendants faced a “serious” allegation involving a large number of burglaries.
The trial had been adjourned twice in 2024 – first because of one of the defendants falling ill and then because of uncertainty about the status of the prosecution’s mobile phone evidence after late objections from the defendants – with a new date set for December 2025.
The unavailability of counsel emerged at a pre-trial review on 1 December 2025, followed by unsuccessful efforts to find a replacement and then HHJ Grout’s decision.
Edis LJ said HHJ Grout was wrong to disregard the reasons for the first two adjournments.
“On the contrary, we consider that they were important. If the prosecution was attending for the third time, having failed in some important respect and therefore craving the indulgence of the court by breaking the fixture and refixing it, that would be a matter which would tell against it.
“On the other hand, if the first two adjournments were not the fault of the prosecution and had arisen for other reasons altogether, then they would be in a much stronger position.”
Here, the second adjournment came about because of a “late ambush” by the defendants.
It was also not a case where the defendants had been waiting an excessive period for trial; the alleged criminality occurred in the last quarter of 2023.
“By modern standards unhappily this is not an old case,” Edis LJ said and that was a point of favour of adjournment.
“There was nothing about the interests of these two defendants which was of such weight that it should drive the court to frustrate rather than serve the interests of a fair trial with a just outcome.”
Further, while HHJ Grout addressed the interests of the defendants, victims, witnesses and jurors, he failed to have “specific regard to the public interest”, and it was “important in the public interest that criminality of this kind should find a response in the criminal justice system”.
The Court of Appeal ordered that the case “should continue in the Crown Court, that it should be listed in that court as soon as possible so that a new trial date can be fixed”.
Edis LJ sat with Mrs Justice O’Farrell and His Honour Judge Menary, the Recorder of Liverpool.
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