July 28
The defendant was charged with and convicted of four counts of sexual assault and two counts of fraud, and sentenced to eight years’ imprisonment. He was later charged with nine counts of sexual assault, of which he pleaded guilty to seven, and the Crown offered no evidence on one of the counts. Concerned about the impact of the suspension of jury trials on waiting times for trials during the Covid-19 pandemic and wishing to ensure that court resources were expended only on trials which were in the public interest, the judge invited the Crown to reconsider whether to proceed with the remaining count in light of the fact that conviction on that count would not add to the length of the sentence. She sentenced the defendant to three years’ imprisonment on each count, concurrent. The Crown Prosecution Service (“CPS”) reviewed the case on public interest grounds referring to the public interest factors in the 2018 edition of the Code for Crown Prosecutors and confirmed it would proceed with the trial because it was important that justice was seen to be done by the formal recognition of the defendant’s wrongdoing by the court and to ensure public confidence in the administration of justice was upheld. The judge said the case did not satisfy the public interest test and, focusing on the second part of the test, the CPS confirmed the case was serious enough to pursue, the reviews of cases required by the Covid-19 pandemic did not change the position, the offending had a serious impact on the complainant who was willing to give evidence, justice needed to be seen to be done and the case had now been listed. Counsel for the defence invited the court to stay the prosecution on the ground that in the particular and unique circumstances of the case to proceed would offend the court’s sense of justice and propriety and bring the criminal justice system into disrepute. The judge stayed the proceedings as an abuse of process of the court concluding, inter alia, that to continue the case would achieve nothing by way of wishing further sanctions or protection of the public and the decision to pursue a trial was vexatious, oppressive and unfair. The Crown appealed against the judge’s decision to stay the proceedings on the grounds that it involved an error of law (i) in the approach to the test being applied, and (ii) in her identification of the factors that she considered to be relevant to the application of that test with the result that she exceeded the bounds of her power.
On the appeal—
Held, appeal allowed. The jurisdiction of a criminal court to stay a prosecution as an abuse of the process of the court was founded on the public interest in maintaining public confidence in the criminal justice system and preventing it from being brought into disrepute or amounting to an affront to public conscience and it engaged the court’s sense of justice and propriety. It was not the law that any decision to prosecute by a Crown Prosecutor with which the judge did not agree amounted to a sufficient affront to the court’s sense of justice to enable the court to stay the proceedings. Abuse of process outside the context of modern slavery should not be expanded so as to offer a public law remedy as if judicial review were available widely. Although the judge had been entitled to express her views on the proper application of the public interest test it did not follow that the continued prosecution was an abuse of process of the court. The powers of the court to stay a prosecution as an abuse of process were a very important part of the jurisdiction of the criminal courts but were limited and a stay was an exceptional remedy. The courts had to exercise care and restraint in their use particularly where the issue was a decision to prosecute a case to trial, which was entrusted by Parliament to the Crown Prosecution Service (“CPS”) and it was no part of the function of the judge to say who should and should not be prosecuted. The proper analysis of the judge’s decision should start from a clear finding that a case such as the present did not involve misconduct by the executive of the kind which might fall within the second limb of abuse of process. The conduct of the CPS in the present case came nowhere near justifying a conclusion that the prosecution offended the court’s sense of propriety and justice or undermined confidence in the criminal justice system so as to bring it into disrepute. There was no jurisdiction comparable to that of the Administrative Court in judicial review in all cases to review on public law grounds the charging decision which had been made. The exercise on which the judge embarked was one which had not properly been open to her and she engaged in a review of the decision-making process of the CPS in circumstances where no reasonable judge could find it was capable of constituting misconduct of the kind which justified a stay of a prosecution as a second-limb abuse of process. The judge focused on the impact of the decision to prosecute on the defendant when the relevant factor for that kind of abuse was the impact on the court and the system of justice. The judge’s conclusion that the continuation of the prosecution was an abuse of process could not be sustained (paras 41, 50–53, 57–58, 60–61, 63, 65).
Paul Jarvis (instructed by Crown Prosecution Service, London South Rape and Serious Sexual Offences Unit) for the Crown.
Corinne Bramwell (assigned by the Registrar of Criminal Appeals) for the defendant.