First published on the Brett Wilson Crime, Fraud and Regulatory Law Blog on 9 January 2017
On 16 December 2016, a road rage prosecution against two defendants was dismissed after the Crown Prosecution Service (CPS) advocate withdrew on the day of trial, citing 'professional embarrassment'. Despite the case being put back in the list, no replacement CPS advocate could be found and so the case could not continue.
Stockport Magistrates then dismissed the prosecution case and ordered the costs of both defendants to be paid by the CPS. The local Police and Crime Commissioner described the situation as ‘farcical’, saying big questions needed to be answered. A spokesman for CPS Manchester subsequently explained that their advocate’s withdrawal was because she had realised, the day before trial, that one of the defendants was a serving Greater Manchester police officer, which meant the case was brought in the wrong area:
“On reviewing the case in preparation for the trial the next day, the prosecutor realised the case involved a serving police officer from the locality that she prosecutes in. Endeavouring to ensure that justice was seen to be delivered independently, she asked the court to adjourn the case so that the trial could be prosecuted by another prosecutor. However, the court did not allow the adjournment so the prosecutor withdrew from the case as it was not possible to identify another prosecutor who could deal with the matter. The Court dismissed the case. We will now review the decision of the Court”.
The officer in question was PC Anna Meakin of Greater Manchester Police, who was accused of careless driving and common assault (scratching and spitting) following two road altercations with Mr Tarik Saleem on the morning of 17 March 2016. Both drivers immediately reported each other to Wilmslow Police Station. The eventual, and unusual, outcome was that both parties were prosecuted for common assault and careless driving. In September 2016 the trial was set down for Stockport Magistrates’ Court on 16 December. The CPS advocate perceived the venue difficulty only on the eve of trial.
Obviously the problem should have been spotted much sooner, but even at that late stage, the CPS solution was bizarre. Instead of simply instructing an outside agent or barrister to prosecute the case in Stockport, their decision was to apply for an adjournment on the day of trial so that the case could be moved to Cheshire. This late application was highly likely to fail as it is plainly counter to the principles of case progression. It is also startling that no ‘Plan B’ apparently was put in place, and so in seeking to ‘ensure justice was seen to be done’, in fact the CPS caused the collapse of the entire case.
The question of what constitutes ‘professional embarrassment’ is perhaps more nuanced than the interpretation of CPS Manchester. The Bar Code of Conduct, paragraph 603(d) sets out:-
"A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:
(a) if he lacks sufficient experience or competence to handle the matter;
(b) if having regard to his other professional commitments he will be unable to do or will not have adequate time and opportunity to prepare that which he is required to do;
(c) if the instructions seek to limit the ordinary authority or discretion of a barrister in the conduct of proceedings in Court or to require a barrister to act otherwise than in conformity with law or with the provisions of this Code;
(d) if the matter is one in which he has reason to believe that he is likely to be a witness or in which whether by reason of any connection with the client or with the Court or a member of it or otherwise it will be difficult for him to maintain professional independence or the administration of justice might be or appear to be prejudiced;
(e) if there is or appears to be a conflict or risk of conflict either between the interests of the barrister and some other person or between the interests of any one or more clients (unless all relevant persons consent to the barrister accepting the instructions);
(f) if there is a significant risk that information confidential to another client or former client might be communicated to or used for the benefit of anyone other than that client or former client without their consent;
(g) if the barrister is instructed by or on behalf of a lay client who has not also instructed a solicitor or other professional client, and if the barrister is satisfied that it is in the interests of the client or in the interests of justice for the lay client to instruct a solicitor or other professional client."
The reasoning behind this CPS withdrawal from this case seems to be that justice might appear to be prejudiced 603(d) if CPS Greater Manchester prosecuted a serving Greater Manchester police officer. On the face of it, they are simply referring to policy rather than professional embarrassment. The problem with that is the code is drafted in a personal way for the specific advocate, not for entire organisations. One might argue that the CPS are conflating two separate issues – the CPS preference as to where cases should be prosecuted, and whether an individual advocate is personally embarrassed. It has not been contended that all potential CPS advocates had some sort of personal connection to PC Meakin. Even if there were, why not simply brief a barrister?
In terms of solicitors’ duties, the SRA Code of Conduct makes no specific mention of ‘professional embarrassment’. However, the principles state that you must not allow your independence to be compromised. But, as with the Bar’s Code, it is deliberately phrased as a consideration for each individual, rather than for a body.
Therefore, a prosecuting solicitor would need some personal connection to a party in the case, or to the facts of the case, for professional embarrassment to apply in this way. However, the CPS statement simply refers to the locality of the defendant police officer, and no personal connection is cited. It then seems to say this problem ensnared all of the prosecutor’s colleagues. In a professional conduct sense, it is very difficult to see how wholesale CPS withdrawal from the case was justified by either the Bar Code, or the SRA Code.
The highly unusual position that both alleged victims were also defendants means there is unlikely to be any complaint as to this outcome. It is also interesting that the CPS seem to be reviewing the Court’s decision, but not their own failures. In the era of many court closures and amalgamations, one might hope the CPS will urgently review their venue policy when prosecuting police officers, and more importantly, the need for a ‘Plan B’ when the Courts will not, or cannot, accommodate their wishes.