The courts have made it difficult to stay criminal proceedings for abuse of process. Abuse can be argued in two ways: either that it is not fair that there be a trial; or that it is not possible for any trial to be fair.

The first approach has been examined by the Supreme Court in Warren v Attorney General for Jersey [2011] UKSC 10.

Following the principles of its earlier reasoning in R v Maxwell [2010] UKSC 48, the Supreme Court held that whether it is fair for there to be a trial is not based on fairness to the accused but on a balancing exercise between the public interest in bringing serious matters to trial, and the public interest in ensuring that executive misconduct does not undermine public confidence in the criminal justice system. The court identified the relevant factors as including: the seriousness of the violation by the police; whether there had been bad faith or improper motive; whether there was an urgent need for the conduct; the availability of other sanctions; and in particular the seriousness of the offence. Faced with serious crime the conviction was allowed to stand.

In the terrorist case of R v Ahmed [2011] EWCA Crim 184, the court held that a case would have been stayed had there been any material before the court gained by the use of torture, but there had in fact been no connection between any alleged wrongdoing and the trial.

In R v F [2011] EWCA Crim 1844, the Court of Appeal reviewed the issues surrounding whether delay could prevent there being a fair trial. It directed that only this decision and that in Attorney General Reference 1 of 1990 (1992 QB 630) should be referred to as authority. An application to stay cannot succeed unless, exceptionally, a fair trial is no longer possible owing to the prejudice that cannot fairly be addressed by the trial process. A lack of explanation for delay going to the credibility of the complainant is not itself enough to justify a stay.

The principles are:

  • Proceedings could only be stayed if the court was satisfied on the balance of probabilities that, by reason of delay, a fair trial would not be possible;
  • In considering prejudice the court should consider what evidence directly (and not merely speculatively) had been lost by the passage of time;
  • The court had to consider how any such prejudice could be compensated by appropriate directions, whether by excluding some of the Crown’s ­evidence or by an appropriate ­summing up; and
  • Unjustified delay by the complainant was relevant, but allowance had to be made for the reluctance of the victims of sexual abuse to come forward.

Change of mind

The extent to which the Crown may change its mind has been examined in two recent cases.

In R (Smith) v CPS [2010] EWHC 3893 (Admin), the Crown, in the absence of the defendant, indicated that it would offer no evidence in return for a restraining order made on the acquittal. It then sought to rescind that agreement on the basis that the restraining order could not be made in the absence of evidence being received and the Crown had not complied with consultation requirements.

The first ground was held to be bad in law; the second had to be examined to see if the defendant suffered prejudice. In this instance that was clearly the case - had he been at the earlier hearing he would already have been acquitted. The procedure to follow in a case where a restraining order was to be made in the absence of a court hearing evidence was considered in R v Kapotra [2011] EWCA Crim 1843, emphasising the need for compliance with rule 50 of the Criminal Procedure Rules to allow time for the defence to make full representations.

In R v Killick [2011] EWCA Crim 1608, the recommencement of discontinued proceedings was not an abuse because no representation not to prosecute had been made. In the absence of prejudice the recommencement was in accordance with the Code for Crown Prosecutors.

To challenge a CPS decision on prosecution the defence must show that the policy being adopted by the CPS was not lawful or that the CPS had not acted in accordance with that policy (R v E, S and R) v DPP [2011] EWHC 1465 (Admin).

Anthony Edwards, TV Edwards