A senior judge has warned defence lawyers not to use a Court of Appeal decision handed down today in a stalking case ‘to create a trap’ for bringing criminal prosecutions to an end.
Dismissing an appeal against acquittal in R v Boardman, Sir Brian Leveson, president of the Queen’s Bench Division, described the case as ‘another example of the problems that arise when cases are not progressed properly or in accordance with the [Criminal Procedure Rules] or other directions of the court’.
According to the judgment, on 15 October 2014, when the accused was due to face trial at Chester Crown Court on an indictment alleging a number of counts of stalking (which he denies), HH Judge Dutton was faced with an application to adjourn on the grounds that significant material had been served only a few days before and required expert analysis which would take three weeks.
Judge Dutton ruled that due to delay on the part of the prosecution, evidence of phone call data records and phone cell site data would be excluded. The ruling, Leveson said, effectively brought the prosecution to an end. The Crown Prosecution Service applied for leave to appeal under the Criminal Justice Act 2003.
In today's judgment, Leveson said it was ‘beyond argument’ that there was considerable pressure on all involved in the criminal justice system to maximise the use of limited resources and ensure cases were processed as efficiently as possible.
He stressed it was not just the CPS that was under pressure. ‘If repeated applications have to be made, defence lawyers on a fixed fee must attend more hearings than would otherwise be necessary, thereby reducing the rate at which they are being remunerated.
‘Further, [HM Courts & Tribunals Service] loses sitting days which could have been used to try other cases… .’
But Leveson warned: ‘It should not be thought that this decision can be used to create a trap for the prosecution generally or the CPS in particular by the overzealous pursuit of inconsequential material which does not go to the issue all in the hope that the CPS will fall down and that an application can be made which has the effect of bringing the prosecution to an end.’
He said such conduct ‘is itself an abuse of process of the court and judges will be assiduous to identify it and impose sanctions on those who seek to manipulate the system’.
Having ‘considered the issues in this case in some detail’, Leveson said it was appropriate for the court to grant leave to appeal. The appeal itself, however, was dismissed.
Leveson added: ‘For the sake of the victims, it is only right to emphasise that there has been no suggestion that they were not subjected to offensive texts and calls and we recognise that a full trial has not been undertaken (for which they each deserve an apology from the CPS).
‘Nevertheless, pursuant to section 61 (3) of the 2003 act, the respondent is acquitted of the offences which are the subject of the appeal.'