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The prosecution wants a dreaded trial day adjournment, so what is your next move? (9 March 2022)

Date: 09/03/2022
Duncan Lewis, Main Solicitors, The prosecution wants a dreaded trial day adjournment, so what is your next move?

It is hugely frustrating when prosecutors ask for an adjournment on the day of trial but believe it or not the courts are on your side.

In these situations, it is easy to get dismayed and feel that there is little else to say but ‘I object’, while bracing yourself for the worst. However, it is important to note that the law, through a combination of practice directions and legal authorities, is opposed to the granting of such adjournments.

If a request is not granted, the CPS may have no option but to offer no evidence against your client, so it is vital to press home your advantage quickly.

There are many reasons the CPS might ask for an adjournment, such as being unable to produce their witness or producing the wrong witness, which is what happened in a recent trial of ours.

So, on the day of trial, the prosecution in your case cannot progress for whatever reason and asks for an adjournment; what do you do? Although the PDs are equally applicable to the defence, it is worth noting that all of the authorities concern applications by the prosecution to adjourn.

A dig into the legal framework, reveals the current practice directions in CRIMINAL PRACTICE DIRECTIONS 2015 DIVISION VI at para 24 C.5, the starting point for requests to adjourn are specifically dealt with: “The court is entitled to expect that trials will start on time with all case management issues dealt with in advance of the trial date.” Further at 24C.7, “the starting point is that the trial should proceed.”

The authorities from which the practice direction takes most of its lead are largely derived from the leading cases of:

CPS v Picton [2006] EWHC 1108 (Admin)

Visvaratnam v Brent Magistrates' Court [2009] EWHC 3017 (Admin) (28 October 2009)

DPP v Petrie [2015] EWHC 48 (Admin) (21 January 2015)


In the case of DPP v Petrie, it was held that “successive initiatives ... have repeatedly exhorted the magistracy and District Bench to case manage robustly and to resist the granting of adjournments. Although there are of course instances where the interests of justice require the grant of an adjournment, this should be a course of last rather than first resort.”

Obviously, deciding to proceed without an adjournment may mean the prosecutor is unable to prove the case, or the defendant is unable to explore an issue, although it could be simply a consequence of inadequate preparation. But, if the prosecution cannot proceed then this direction should be clearly read out to the magistrates.

The next steps seem straightforward, the justices must examine why the adjournment is required (24C.11). If the request arises through the fault of the applicant, then it weighs against it, weighted in accordance with the gravity of the fault.

In the case of witness absence (24C.20) the court must rigorously investigate the steps taken to secure their attendance, the reasons given for absence and the likelihood of the witness attending in future.

While the basic framework is clearly set out here an in-depth look at the practice direction and authorities is recommended.


Back to our case, and the adjournment request: you should object on the basis set out in Visavaratnam and PD 24C.5.

However, if this fails and adjournment is granted, you will need a verbatim note of the court ruling for the onward battle.

You can now either ask the magistrates to state a case or make an application for Judicial Review (JR), both civil remedies, which may have to be client funded. JRs require there to be an error of law, procedural irregularity, illegality, irrationality or unreasonableness. Basically, if it feels wrong, look to see if any of the grounds apply and work through them. If there are grounds, you must apply to a single judge for permission (rather like an appeal against conviction or sentence) but to the Administrative Court. If permission is granted then there is a full hearing.

You can ask the Administrative Court as part of a JR to quash the magistrate’s order as it was based on error of law and, importantly, substitute a not guilty verdict or dismiss the charges.

Our crime department tested this recently in a challenge to a magistrate’s decision. In this case, the CPS called the wrong witnesses. The client’s counsel did all the right things; opposed the application referring to Petrie, as well as the practice directions. The justices allowed the application, we suggested on an error in law. We had to work quickly, but the matter was issued and at the hearing for interim relief, the judge indicated that he would turn it into a permission hearing. The application for permission was granted and we were able to stop the trial until the High Court had considered the issue. The CPS later reviewed its position and offered no evidence against the client.



For more information on this issue contact:

Crime director Rubin Italia at rubini@duncanlewis.com or telephone 020 3114 1129

Public law solicitor Raja Rajeswaran Uruthiravinayagan at rajau@duncanlewis.com or telephone 020 3114 1107



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