Non-compliance: lawful and proportionate consequences

Diagnose the failure before choosing a sanction

When a direction has not been complied with, the court must find out why, identify responsibility and take appropriate action. CrimPR 3.8(2)(e) requires diagnosis, not merely a rebuke. What was required? Was the requirement valid and clear? Who knew of the problem, when, and with what effect on fairness and progress? Is the failure curable? Does the proposed remedy have a legal basis and address the actual prejudice? The overriding objective governs the answer, not a desire to punish the default at any cost.

A late item may require immediate service, a focused response period, rearrangement of witnesses, a properly reasoned adjournment, costs consideration under the applicable power, a ruling under an evidence rule, or ultimately an abuse determination. These are different powers with different conditions. CrimPR 3.5 and its note refer to particular statutory consequences; they do not authorise every consequence for every breach. For example, a disclosure fault under section 11 cannot be expanded into a free-standing adverse inference whenever any document is late.

Variation is controlled, not private self-help

Under CrimPR 3.6, a party may seek variation of a direction made without a hearing, at a hearing in that party’s absence, or where circumstances have changed. Apply as soon as practicable after becoming aware of the grounds and give the other parties as much notice as the nature and urgency allow. The original direction does not disappear merely because a variation seems sensible. Apply promptly and explain both the need and the effect on later steps.

CrimPR 3.7 permits agreement to vary a time limit fixed by a direction only if the change will not affect a fixed hearing date or significantly affect the case’s progress in another way, the court has not prohibited agreement, and the court’s case progression officer is promptly informed. Do not overstate the condition as “no effect whatsoever on progress”. Conversely, absence of an effect on the trial date does not excuse a significant effect elsewhere or remove the notification condition. The officer refers the agreement to the court if in doubt about the condition.

Under CrimPR 3.15, the court can shorten or extend a Part 3 time limit even after expiry and permit an oral application or representations. A person seeking an extension applies when serving the late application or representations and explains the delay. This procedural flexibility does not erase statutory conditions such as the pre-arraignment dismissal boundary. It also does not override SI 2011/209, regulation 3, which requires the defence-disclosure extension application itself within the prescribed period. Do not advise “all criminal deadlines can be extended retrospectively”.

Adjournment and other consequences need reasons

An adjournment postpones a hearing or its continuation. Under CrimPR 3.5(7), the court must consider its overriding-objective and preparation duties, the availability of a substitute hearing date, the need for compelling reasons, especially for an application made at or shortly before the hearing, and the nature and gravity of any failure prompting the request. If ill-health is relied upon, the evidence should identify when the participant was examined, the condition, the activities it impedes and likely duration, and why the person is unfit to attend. A medical label alone does not explain inability to participate. A failure does not automatically secure a new trial date. Equally, refusal cannot be justified simply by the existence of a listing if the result would be unfair. Explain what extra time will achieve, why a lesser measure is inadequate and how the new plan prevents repetition.

A court considering costs must identify the applicable statutory power and give a fair opportunity to respond. Prosecution of Offences Act 1985, section 19, concerns costs incurred by one party because of an unnecessary or improper act or omission by or on behalf of another. Section 19A addresses wasted costs caused by an improper, unreasonable or negligent act or omission of a legal representative. Section 19B separately concerns serious misconduct by a non-party. Identify the responsible person, causal expense and statutory threshold; do not treat the three powers as interchangeable. CrimPR Part 45 and the note to rule 3.5 identify the procedural framework. Costs are not an automatic fine for lateness, and a costs response does not make an otherwise unfair trial fair.

Late service of evidence may engage a specific notice, permission or admissibility regime. Determine that regime and its remedial powers instead of assuming “late means inadmissible”. A missed witness notice under the CPIA raises its own section 11 questions; a hearsay notice or expert report engages its own rules. Apply the evidence chapters to admission or exclusion, using the verified chronology and prejudice. Use the trial-procedure chapter to decide whether the prosecution has a sufficient case at trial. Case management connects these decisions but does not merge them.

A disclosure default can require further disclosure, judicial review of PII or a section 8 order where its conditions are met. A stay for abuse remains the exceptional response where its substantive test is satisfied, not an automatic penalty for failure to meet a date. CPIA section 10 expressly distinguishes a prosecutor’s timing failure alone from delay that denies a fair trial. If fair preparation can still be achieved, identify the effective cure; if it cannot, explain precisely why. CrimPR 3.28; Maxwell, paragraph 13.

Bring the chapter together

In a prepared case you should be able to identify the trial court and operative charge, explain the plea and real issues, distinguish prosecution evidence from unused material, and show how each outstanding enquiry or application affects the trial. You should calculate the actual deadline from its legal trigger, not from the date that is easiest to remember. You should distinguish ordinary disclosure, PII and rule 3.11, and explain why any proposed remedy follows from a particular power.

The resulting handoff to the evidence and trial chapters is a usable file: precise issues; lawful counts; genuinely agreed facts; disputed material and its disclosure history; witness and participation needs; decisions already binding; applications still outstanding; and an honest readiness position. This is the practical synthesis of CrimPR Parts 1 and 3, CPIA sections 3–8 and 11, and the specialist provisions discussed above. Finishing the reading or seeing the same question repeatedly is not evidence that these actions can yet be performed.