Prosecution trial date set back on the basis of DWP requesting statement of reasons

Client’s first tier tribunal is allowed re an overpayment decision. Prosecution had commenced and trial date set. DWP ask the PF to delay the trial date as they are going to apply to the upper tribunal. Which is allowed . Surely this is not right?

I think it is - though your client’s solicitor in the criminal case could always have opposed the postponement application.

A couple of points;

1. Success in the civil matter (i.e. the overpayment appeal) will almost invariably raise a significant hurdle to the DWP securing a conviction in the criminal case. If the judicial body properly tasked by Parliament to decide appeals relating to benefit entitlement (i.e. the FtT) has decided the claimant was entitled and was not overpaid, charges of obtaining that benefit by fraud are going to be pretty difficult to sustain.

2. Which is why it is almost always (but not invariably - a criminal solicitor should advise) in the claimant’s interest for the civil matter to be decided first. I have had a number of cases (as I am sure others have) where I have prevailed upon the solicitor dealing with the criminal aspect to obtain an adjournment of the trial so that we can get the entitlement issues before a FtT first. We won in these cases - but had we lost and I thought there was a potential error of law, I would have asked for a SoR and would have gone back to the criminal solicitor to try to obtain a further adjournment if it appeared that the court cases were now likely to go ahead before the entitlement and overpayments appeals were finally put to bed.

3. Seems to me that the DWP/CPS in your case know full well that the criminal case is pretty much stuffed if the FtT finds the claimant entitled - which is why they’ve done what they’ve done. But with the boot on the other foot, I’d have tried to do the same for any client of mine.

4. So I think this is an issue to be taking up with the client’s criminal solicitor - did they oppose the application for postponement -  and if not, why not? Of course, even if they did, it might well be that the court was properly entitled to grant the postponement.

5. Better hope the SoR is watertight - have they actually applied for leave yet or are you still waiting on the statement?

No SoR yet…. I accept that the postponement can be asked for both for the client and the DWP but where does this stop. The PF has set a new date for two month time but I doubt an upper tribunal decision would have been made by then let alone even getting the SoR.

My thoughts are that this is not an appeal, it’s a request for a statement of reasons and then to consider an appeal and only when this is granted could it be said the decision is being appealed. Likewise could the client then do the same and will the trial dates be postponed again?

Unfortunately the solicitor didn’t appear to challenge this and is asking me what the process is.

Sounds like the client could do with a better solicitor.

I agree - it’s a bit of a liberty asking for a postponement when they’ve yet to (and in fact, may never) appeal the FtT decision. That said, on another view, it’s just unfortunate that the dates of the civil and criminal cases were close together - and the DWP cannot be blamed for the fact that it needs an SoR before it can seek leave and there may be some delay in this being provided.

If there’s not even been a SoR produced in 2 months time, then the solicitor ought to oppose a further postponement application on the basis that;

- there’s no SoR as yet
- even once there is, the SoS may decide not to seek leave
- even if they seek leave, the UT may throw the case out
- at a minimum, all of this is going to take at least 8 months, even if they succeed at UT
- had your client lost at FtT, would the prosecution not oppose - and would the court grant - a postponement whilst she appealed to the UT?

And lastly, I’d be arguing that if the SoS succeeds at UT, his best possible outcome is a set-aside and a new FtT - is the prosecution asking the court (and it would be a sodding liberty if it’s not) to postpone until such time as either a) it gets the knock back from the UT or, if it succeeds, until b) there’s a new FtT decision? And is the court prepared to grant this?

I’m certainly no expert in criminal law but in England and Wales my understanding is that the prosecution has no power to fix the trial date.  That is up to the court.  If a postponement request is refused, then my thinking is that at trial the prosecution could request an adjournment on the basis that it is not ready to proceed.  Then if the court is not satisfied that the reasons for the request are sufficient the court could then simply dismiss all charges.  The prosecution would then have to refile from scratch when it is finally ready to proceed.  If that is wrong then someone will put me right, no doubt.  If it is right then is it different in Scotland?

My understanding Nevip is that the Procurator Fiscal (PF) advised that the DWP informed them that they were having ‘difficulties’ with their witness for the trial date and wished this adjourned. The PF had assigned an ‘accelerated hearing’-whatever that is- which was the next day and client couldn’t attend. 
At this hearing in court, the PF then got the trial and diet dates set back on the basis that the DWP are appealing the FtT decision.
I’m I right to be suspicious about the ‘difficulties’ of the witnesses and was this just an excuse to allow the ‘accelerated hearing’ and then to set back the trial dates on the basis of a statement of reasons request.  Doesn’t seem right to me.