QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE MACKAY
|THE QUEEN ON THE APPLICATION OF CROWN PROSECUTION SERVICE||(CLAIMANT)|
|WINCHESTER CROWN COURT||(DEFENDANT)|
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Monday, 10th November 2003
"... whilst it is possible to point fingers of blame in all sorts of directions, what was going on was the court taking a bit of a chance in the hope that they would get the witnesses, and for some reason the witnesses could not be got."
A little later, when prosecuting counsel submitted that "everything is to play for", the learned judge said:
"in which case it seems to me we have got little alternative but simply to adjourn it with a date ..."
However, defence counsel made some submissions, essentially to the effect of hardship to his client in any delay and taking points, as he was perfectly entitled to do, as to the implications of an adjournment for him. At the end of hearing all submissions the court refused the adjournment.
"We have decided that we are not going to grant an adjournment. We think that looking at the whole of this case it is highly important that there should not be any further delay and we believe that it would not have been impossible for the prosecution witnesses at least to inform the court as to what their problems were on Thursday, today, when the date was changed. They had not done so, save in respect of one of the witnesses, and we think it would not be right to put a further adjournment onto this case, and therefore we insist that it continues today."
That had the almost immediate effect of the prosecution offering no evidence, with the consequence to which I have referred.
"In any appeal in the Crown Court, where the court is considering allowing it because the prosecution is for one reason or another not in a position to proceed, the court will need to balance a number of interests: those of the appellant; the respondent (and this will involve consideration of the interests of the victim, where there is one); and also the public interest.
43. In Attorney General's Reference (No 3 of 1999)  2 AC 91 , Lord Steyn in a different context said this at page 118~...
'... There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public'.
44. In my judgment, that same triangulation of interests arises in this case. Thus, here the judge should have endeavoured to be fair to all sides. In the present case, in my judgment, there were a number of factors that he should have taken into account..."
The learned Lord Justice then went on to refer to the matters that were of particular relevance in that case. Two of those matters were the fact that the appellant had already been convicted and that the judge should have considered whether there were any alternative means of dealing with the problem. In the event, the court concluded that no reasonable tribunal, taking all relevant matters into account, could have come to any conclusion other than to adjourn for a period of time.