Oral applications made to a court (criminal cases) and reasoned judgment

1. The Status of Oral Applications in Court

 

While formal written submissions are the standard, English criminal courts retain the flexibility to hear oral applications to ensure the just and efficient conduct of proceedings.

 

The Statutory Framework (CrimPR)

 

The primary source of procedural law, the Criminal Procedure Rules (CrimPR), establishes a clear preference for applications to be made in writing, often on a prescribed form. This ensures clarity, provides a formal record, and gives the opposing party proper notice.

However, the CrimPR is not entirely rigid and contains provisions that allow for departures from this default position:

• Case Management Powers: CrimPR Part 3 grants the court broad powers to manage the case, which includes the discretion to hear applications made by various means. This is fundamental to ensuring proceedings are responsive to developing issues.
• Specific Provisions: Certain rules explicitly permit oral applications. For example, the rules governing Special Measures for vulnerable witnesses expressly allow for an application to be made orally during the trial if there is a good reason for its lateness.
• Practice Directions: Directions supplementing the CrimPR can also sanction oral applications in specific contexts, particularly for urgent matters in the magistrates’ court.

 

Common Law Principles and Judicial Discretion

 

The statutory rules operate against the backdrop of the common law tradition, in which oral advocacy is a central feature. While the CrimPR takes precedence, judges retain an inherent jurisdiction to control their courts. In exercising this discretion to hear a spur-of-the-moment oral application, a judge will balance several factors in line with the overriding objective of the CrimPR—to deal with cases justly.

The key considerations are:

• Urgency and Justification: Whether the issue arose unexpectedly and could not have been raised earlier in writing.
• Prejudice: Whether hearing the application orally would unfairly disadvantage the opposing party by denying them the chance to prepare a response.
• Complexity: Whether the matter is simple enough to be dealt with verbally or requires detailed written argument.
• Efficiency: Whether dealing with the issue immediately will aid the smooth running of the trial.

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2. The Duty to Give Reasons for Refusing an Oral Application

 

Should a judge refuse to hear an oral application, they are not permitted to do so silently. There is a fundamental duty to provide a reasoned judgment for the refusal.

 

Foundations of the Duty (Common Law and Statute)

 

This duty is robustly supported by two pillars of English law:

• Common Law: It is a long-standing principle of natural justice that parties are entitled to know why a decision has been made against them. This ensures judicial accountability, demonstrates that the judge has engaged with the issue, and provides the necessary basis for any subsequent appeal.
• Statutory Law: This common law duty is reinforced by:
  • The CrimPR’s overriding objective, as an unreasoned decision is incompatible with the principle of dealing with a case justly.
  • The Human Rights Act 1998, which incorporates Article 6 of the European Convention on Human Rights (the right to a fair trial). A reasoned decision is considered an essential component of a fair hearing.

 

Essential Components of a Reasoned Refusal

 

The judge’s reasoning, often delivered immediately (ex tempore), does not need to be lengthy but must be sufficient to explain the decision. It focuses on the procedural propriety of the application, not its underlying substance. The reasoning must cover the following “limbs”:

1. The Procedural Rule: An acknowledgement of the standard requirement under the CrimPR for applications to be in writing.
2. Lack of Justification: An explanation of why the judge is not satisfied that the matter is sufficiently urgent or unforeseeable to justify a departure from the rules.
3. Prejudice to the Opposing Party: A clear statement on how hearing the application orally would be unfair to the other side.
4. The Interests of Justice: An explanation of why upholding the formal procedure is necessary for the just and efficient management of the case and the trial as a whole.