R v Boardman and R v Guraj – The result of limited resources

The Crown Prosecution Service’s (CPS) case preparation has been described as “lamentable” by the Court of Appeal in two decisions in so many weeks. It might be assumed that the rulings would provoke a sense of schadenfreude amongst defence lawyers – but the reality is that the CPS‘s woes are felt by all those in the criminal justice system no matter what side of the fence you happen to be on.

R v Boardman1

The first line of the judgement, delivered by Sir Brian Leveson, sets the tone for what is to follow, “it is beyond argument that there is considerable pressure on all involved in the criminal justice system to maximise the use of limited resources and to ensure that cases are processed as efficiently as possible”.2

The facts of the case are that, during a relatively short period, the respondent had sent a total of 112 text messages and made 5 telephone calls of a sexually explicit and abusive nature to 8 women and was said to have made 2 indecent, obscene and menacing telephone calls to 2 other women. The defendant denied sending the messages or making the calls. A defence statement was served which requested, along with other items, data from the mobile phones used to make the calls – cutting a long story short – the data wasn’t provided, or least not in a complete and usable form.
The trial judge, exercising his discretion under Section 78, ruled out the telephone evidence in its entirety:

“ There were days and times when cases would almost automatically be adjourned for one reason or another at the trial hearing because various things hadn't been done. But that has well and truly gone in accordance with the criminal rules. Efficient case management in pursuit of the overriding objective as set out by the rules is vital. The judge must deal efficiently and expeditiously with the case while dealing fairly, of course, to both sides, recognising the rights of the accused and of course respecting the interest of victims and witnesses and therefore, as Rule 3 indicates, adjournment should be refused unless absolutely necessary and justified. .... The reality is that the defence is entitled to have access to the call data and full cell site data to which the Crown have had access, and to have access to it before either the 3rd September, the 12th September or the 7th October, which is when that service of information is now said to have actually been completed. ... I am extremely anxious that in a case of this kind there has been a lamentable failure on the part of the prosecution, whether it be the police to provide the proper data, or whether the CPS to manage that data and to transfer it on in an acceptable form and I feel, I am afraid, that those who are victims will feel badly let down by the rather lackadaisical manner in which this serious case has been prosecuted. I am the first to acknowledge that all agencies within the criminal court process are currently under pressure of time and of monetary consideration but none of that, I am afraid, is any excuse for lamentable inefficiency and inactivity.” 3

The Court of Appeal echoing these sentiments stated that the defendant would have suffered prejudice by waiting a further 8 months for trial. The Court also stated that pressure and limited resources could not, “abnegate responsibility for trial progress and make it subject to the vagaries of CPS preparation.”4 The Court also highlighted the impact inefficient CPS case management had on the Court and defence resources.

Interestingly counsel for the Crown did not seek to argue that the defence should have done more to alert the CPS of their disclosure issues. The Court of Appeal stated that, “it would be perfectly open to the judge to decide that the consequences of such a failure of duty on the part of the defence should be to reject a complaint of prejudice consequent upon the need for an adjournment.”5

The Court also gave a cautionary warning to the defence to carefully draft disclosure requests. The Court stated that it would be an abuse of process to over-zealously pursue “inconsequential material which does not go to the issue” in the hope that the “CPS will fall down.”6

R v Guraj7

In the second case, again due to delays by the prosecution, the Court of Appeal ruled that a confiscation order could not be made.

The convicted defendant appealed against the making of a confiscation order. After sentencing the defendant, and making a forfeiture order, the trial judge adjourned confiscation proceedings for the usual exchange of statements and replies and fixed a hearing. The defence served their section 18 statement (albeit a month late) after which the CPS let the matter lapse, “apparently due to various staff changes and the temporary loss of the file.”8 The issue before the Court of Appeal was whether the delay meant that the court no longer had a power to grant a confiscation order.

Procedural errors in respect of the postponement of confiscation proceedings do not, as of right, mean a confiscation order cannot be made; the Crown is entitled to rely on the “balm” of section 14 (11) POCA so delays and procedural errors can be soothed and a confiscation order can still be granted. However in Mr Guraj’s case, the CPS could not rely on section 14 (11) as forfeiture had been ordered by the judge in contravention of section 15 (2) POCA. As a consequence the out of time CPS application to extend the period of postponement proved fatal to the Crown’s case (section 14 (12) POCA). The Court stated, “forfeiture orders should not be made when confiscation proceedings are under way. If forfeiture orders are made in such circumstances, then the prosecution will be held more strictly to the time limits contained in section 14.”9


The Court in Guraj acknowledged the stress the CPS is under, “whilst some of our comments may seem critical of the CPS, we do appreciate that that organisation is over-worked and stretched.”10 This is no doubt true, but the same sentiments might also be applied to the defence whose position looks set to worsen if the MOJ has its way – a prospect which now looks increasingly likely since the Court of Appeal’s judgement in The Law Society & LCCSA & Ors v Lord Chancellor.11 It is difficult to see how “consolidated” criminal defence firms will improve the efficiency of the Courts and only augurs ill for a criminal justice system already under severe pressure.


1 [2015] EWCA Crim 175, [2015] WLR(D) 92
Para 1
Para 21
Para 35
Para 40
Para 42
[2015] EWCA Crim 305
Para 12
Para 55
10 Para 58
11 [2015] EWCA Civ 230


Image courtesy of winnond at FreeDigitalPhotos.net

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