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Police v Duverge [2005] MUIntC 24 (18 February 2005)

IN THE INTERMEDIATE Court OF MAURITIUS

CAUSE NO.

IN THE MATTER OF:

POLICE

V

MARIE JOSEPH ROBERT DUVERGE

RULING

The defence has moved that proceedings in the present case be stayed on the ground of the inordinate delay which has lapsed since the time the offences are alleged to have been committed and the lodging of the information. Secondly, the defence avers that the present proceedings constitute an abuse of the process of the court in view of the subsequent agreement reached between accused and Medine Sugar Estate (MSE), the complainant, after latter had reported the matter to the police.

The prosecution is objecting to the above motion.

On the issue of delay , the prosecution called PS Rene who produced an affidavit setting out the chronology of events up to the lodging of the present case (Document A refers). The offences were reported to the Police on 28 March 1997. A Police enquiry was conducted and not less than 70 witnesses had to be interviewed and statements recorded from them. The enquiry was submitted to the DPP’s office in or about December 1998 or January 1999. On 11 October 1999, the DPP requested a further enquiry into the matter. On 16 May 2000, the case file was submitted to the DPP’s office. However, in view of the complex nature of the case and the several charges that were being contemplated against the accused, the case file was, on several occasions, remitted to the Police for further enquiries. It was only on 29 th May 2001 that the case file was returned to the Police for the information to be lodged. The case was then lodged on 5 th June 2001.

No evidence was adduced by the defence on the issue of delay. However, it did so on the second limb of the grounds of the motion for a stay of proceedings. Mr Eric Piat, Mr Claude Felix and Mr Maxime Leclezio, who at the material time were employed by the MSE, were called in an attempt to establish that further to the reporting of the case to the police, an agreement was reached between MSE and the accused whereby latter would tender his immediate resignation following certain irregularities discovered against him, and in return the MSE would withdraw its complaint made to the police.

Mr Eric Piat , who was the Estate Manager of MSE at the material time, explained that following certain irregularities discovered by the MSE implicating the accused, latter on being informed of same and of the MSE’s intention to bring disciplinary proceedings against him, admitted his guilt and offered to resign from his job. On the board being apprised of the sum embezzled by the accused, it decided to refer the matter to the police. Mr Piat however disagreed that a consensus was reached between the MSE and the accused, whereby the latter would tender his resignation in return of which the MSE would withdraw the charges leveled against him. According to Mr Piat, it was the wish of Counsel for the accused that MSE should not press with the charges.

According to Mr Felix , the then responsible officer for Human Resources at MSE, in February 1997, he was apprised of certain irregularities implicating the accused. At a meeting held at the request of counsel for the accused and in presence of one Mr Charoux and Mr Ramlackan, with a view to find a solution to the problems of accused, latter agreed to resign from his job of Public Relations Officer (PRO) at the MSE, and further undertook to reimburse to MSE the sums which he had allegedly embezzled. Mr Felix added that on the day following the meeting, he received the resignation letter of accused and forwarded the case file to the Port Louis office. Mr Felix agreed that a written agreement between accused and MSE, the contents of which he was unaware, was drawn up.

Mr Maxime Leclezio, secretary of MSE, deponed to the effect that on 28 th March 1997, the MSE reported a case of embezzlement to the police against the accused. In November 1997, following an investigation by MSE, accused gave certain information to the latter and agreed to resign from his job as PRO. A written agreement was entered into by accused and MSE, latter being represented by one Mr Joseph Vaudin, whereby accused agreed to reimburse a certain sum of money by pledging certain of his assets to the MSE. Mr Leclezio agreed that the purport of the agreement was to enable accused to reimburse to MSE the sums embezzled so that in return MSE would not press on with the charges; he explained that they could not withdraw the charges reported to the police, but added that the board was nevertheless prepared to consider writing to the DPP now to express its wish not to proceed with the matter.

As it can be seen from the submissions of learned counsel for the defence, more emphasis was laid on the second limb of the grounds for a stay of proceedings than the first one. I shall nevertheless address my mind on the issue of delay first.

Section 10(1) of our Constitution provides that:

“Where a person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”.

In Darmalingum v The State (Privy Council Appeal No.42 of 1999) , it was held as follows:

“ It will be observed that section 10(1) contains three separate guarantees, namely (1) a right to a fair hearing; (2) within a reasonable time; (3) by an independent and impartial court established by law. Hence, if a defendant is convicted after a fair hearing by a proper court, this is no answer to a complaint that there was a breach of the guarantee of a disposal within a reasonable time. And, even if his guilt is manifest, this factor cannot justify or excuse a breach of the guarantee of a disposal within a reasonable time. Moreover, the independence of the “reasonable time” guarantee is relevant to its reach. It may, of course, be applicable where by reason of inordinate delay a defendant is prejudiced in the deployment of its defence. But its reach is wider. It may be applicable in any case where the delay has been inordinate and oppressive. Furthermore, the position must be distinguished from cases where there is no such constitutional guarantee but the question arises whether under the ordinary law a prosecution should be stayed on the grounds of inordinate delay. It is a matter of fundamental importance that the rights contained in section 10(1) were considered important enough by the people of Mauritius, through their representatives, to be enshrined in their constitution. The stamp of constitutionality is an indication of the higher normative force which is attached to the relevant rights: see Mohammed v The State [1999] 2 W.L.R. 552, at 562G.”

Now, is the delay in the present case inordinate and oppressive such as to constitute a breach of the reasonable time guarantee contained in section 10(1) of the Constitution?

The evidence on record reveals that although the present offences had allegedly been committed between 1995 and 1996, they were, as per the testimony of PS Rene, reported in March 1997. After the enquiry had been completed a first time, the case file was submitted to the DPP’s office in or about December 1998 or January 1999. However, on 11 October 1999, the DPP requested a further enquiry into the matter and on 16 May 2000, the case file was again submitted to the DPP’s office. It would however appear from the testimony of PS Rene that in view of the complex nature of the case, the case file was remitted to the Police on several occasions for further enquiries. It was only on 5 th June 2001, that an information containing not less than 31 counts was lodged. There has undeniably been a lapse of some 4 years between the alleged commission of the present offences and the lodging of the information before this Court. In this respect, PS Rene explained that the enquiry was of a complex nature, and not less than 70 witnesses had to be interviewed and statements recorded from them. Indeed as can be seen from the information itself, accused is charged with one count of embezzlement of six million rupees by person in receipt of wages to the prejudice of Medine Sugar Estate, 10 counts of forgery, 10 counts of making use of a forged document and 10 counts of swindling.

In Barker v Wingo (1972 ) 407.45.514 the court stated:

“This (i.e. the stay of proceedings ) is indeed a serious consequence because it means that a defendant who may be guilty of a serious crime will go free, without having been tried ”.

In Jago v District Court of New South Wales (1989) 168 CLR 23 , it was held:

“Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust”.

Further, in the case of Attorney General’s Reference No 1 of 1990, it was held that:

“ The jurisdiction to stay criminal proceedings on the ground of delay was exceptional even where the delay could be said to be unjustifiable and a stay should rarely be imposed in the absence of any fault on the part of the complainant or prosecution and should never be imposed where the delay was due merely to the complexity of the case (emphasis added) or was caused or contributed to by the actions of the defendant himself. Furthermore, a stay ought not to be imposed unless the defendant showed on the balance of probabilities that owing to the delay he would suffer serious prejudice to the extent that no fair trial could be held and that the continuance of the prosecution amounted to a misuse of process.”

Applying the above relevant law to the factual aspects of the present case, I accept the prosecution evidence that this was no simple ordinary criminal enquiry –that the delay in lodging the case was due to the complex nature of the investigation and the complexity of the case. I am of the view that the four years’ delay, though not desirable, is not in itself of such a nature as to preclude the accused from having a fair trial, and will not result in any consequential prejudice to him. Further, such a delay does not and cannot outweigh the interest of society in bringing the accused to justice in such a serious case. In these circumstances, I find that a period of some 4 years to complete the enquiry and to lodge the case cannot be said to be unreasonable and excessive. The mere fact that there has been some delay is not necessarily a ground to stay proceedings for abuse of process. The onus is therefore on the accused to establish on a balance of probabilities that the proceedings against him cannot be fair in the sense that he has suffered prejudice. In the present case, the accused chose not to give evidence. There is therefore no evidence coming from the accused himself explaining the prejudice that he has suffered as a result of the delay.

I now turn to the second ground relied on by the defence for a stay of proceedings. The categories of abuse are not exhaustive as Neill L.J. observed in R .V. Bow Street Stipendiary Magistrate, ex p. DPP (1992) 95 Cr. App. R. 9, at 16 , “ the law in this field is still at the stage of development ”. In R. Martin [1998] 2 W.L.R. 1, at 6, Lord Lloyd stated: “ the categories of abuse of process like the categories of negligence are never closed ”.

It is now well settled that the Court has a general and inherent power to stay proceedings in order to protect its process from abuse and to secure fair treatment for those accused of crime. It may be an abuse of process if, either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable. In Connelly V DPP (1964) AC 1254, Lord Reid at 1296 stated the court has “ a residual discretion to prevent anything which savours of abuse of process”, and Lord Devlin, at 1354, stated the courts have “ an inescapable duty to secure fair treatment for those who come or are brought before them”. An abuse of process was defined in Hui Chi-Ming v R. [1992] 1 A.c. 34, PC – as “ something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other aspects a regular proceeding”.

In R. Martin [1998] 2 W.L.R. 1, at 25, Lord Clyde stated: “ No single formulation will readily cover all cases, but there must be something so gravely wrong as to make it unconscionable that a trial should go forward, such as some fundamental disregard for basic human rights or some gross neglect of the elementary principles of fairness,”

Neill L.J. in R. V. Beckford (1996) 1 Cr. App. R. 94 at 100 G, observed that: “ The jurisdiction to stay can be exercised in many different circumstances. Nevertheless two main strands can be detected in the authorities:

a) Cases where the court concludes that the defendant cannot receive a fair trial;

b) Cases where the court concludes that it would be unfair for the defendant to be tried.”

Coming back to our present case would it be so unfair and wrong for the court to allow the present case to proceed against the accused, in view of an alleged agreement reached between the accused and MSE as contended by the defence.

Out of the three witnesses called by the defence, only Mr Leclezio agreed that the purport of the agreement was to enable accused to reimburse to MSE the sums embezzled so that in return the latter would not pursue the charges. However, what can be gleaned form the testimony of Mr Leclezio is that by the time the agreement was reached the matter had already been referred to the police.

In R. v. Horseferry Road Magistrates' Court, ex p. Bennett [1994] 1 A.C. 42 , Lord Lowry, at 72 G observed:

“ I consider that a court has a discretion to stay any criminal proceedings on the grounds that to try those proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case .”

In R. v. DPP, ex p. Burke [1997] C.O.D. 169, DC – the defendant was informed by means of standard letter that the Crown Prosecution Service intended to discontinue proceedings, save “ exceptionally, if further significant evidence (was) to become available”. That decision was revoked and proceedings instigated even though no further evidence had come to light. It was held that the terms of the letter were not calculated to let the defendant believe he was free from jeopardy.

In R. v. The Sutton Youth Justices, ex p. “LJI” and “DSI”, DC , - it was held not to be an abuse of process for the CPS to prosecute defendants on more serious charges than those originally arrested for. No promise, representation nor assurance was given by the arresting police officers to the defendant to lead them to believe or expect to be prosecuted for less serious charges.

In R. v. Abbas Kassimali Gokal (1999) CA 11/03/99 unrep. – the Court of appeal dismissed an appeal against convictions for conspiracy to account falsely and conspiracy to defraud involving the BCCI bank. The appellant was arrested in Frankfurt on his way from Pakistan to New York to be interviewed by American Authorities. He claimed that he had gone there on the assurance by the American authorities that he would not be arrested by the Serious Fraud Office.

The Court of Appeal observed that there had been no abuse of power by the SFO. The appellant had left Pakistan voluntarily and that although an undertaking could be a bargain, no bargain had been relied on by the appellant. There was no evidence that the appellant had left Pakistan because of the assurance.

In Hayter v. “L” and “T” [1998] 1089 MR 99 W.L.R. 854 DC – the Q.B.D held that the launching of a private prosecution after the administering of a police caution did not amount to an abuse of the court’s process. The court was not prepared to limit a private individual’s right to prosecute.

What has emerged from the evidence of the witnesses called by the defence is that following certain irregularities discovered by the MSE implicating the accused, the MSE reported the matter to the police in March 1997. However, in November 1997, a meeting was held whereby accused, latter’s counsel and certain personnel of the MSE were present; the purport of the meeting was to find a solution to the predicament of accused. Negotiations took place and accused agreed to submit his immediate resignation and to reimburse to MSE the money which, according to the latter, accused had embezzled. As regards the contents of the agreement itself, none of the witnesses called by the defence was able to depone with clarity as to its contents. Whereas Mr Piat was categorical that such an agreement had never taken place, Mr Felix on the other hand, whilst agreeing that such an agreement had been reached, however stated that he was unaware of its contents. As for Mr Leclezio, according to whom such an agreement had been reached, he also explained that since the matter had already been reported to the police, the MSE did not withdraw the charges levelled against the accused. The agreement was not produced in court so that the court is unaware of its contents.

Be that as it may, a careful perusal of the testimonies of the three witnesses reveals that accused submitted his resignation well after the matter had been reported to the police. Once accused was made aware of the irregularities, he immediately confessed his guilt and offered to resign from his job (vide the unrebutted testimony of Mr Piat). The evidence falls short of establishing that the agreement was calculated to let the accused believe that he would be free from prosecution. There is nothing to establish that the agreement was a promise or an undertaking that he would not be arrested and tried for the offences of which he presently stands charged. Accused, at the time of submitting his resignation, was aware that the matter had already been reported to the police.

As it was said in the case of Attorney General v Wai Bun (1993) 3 WLR 242 :

“ ultimately, what has to be determined is whether proceedings can be fair, and it is for the defendant, if he is to succeed, to establish on the balance of probabilities that they cannot be fair”.

Having considered the law and the relevant facts of the present case, I find that the exceptional circumstances needed to justify a stay does not exist. Accused has failed to establish on a balance of probabilities that it would be unfair and oppressive to allow the prosecution to proceed with its case. The offences with which the accused stands charged in the present case involve dishonesty and fraud. Public interest therefore lies in the pursuit of the prosecution of such serious charges.

I therefore set aside the motion of the defence to the effect that proceedings ought to be stayed on the ground of abuse of process.

N. Devat

accused has failed to satisfy me, on a balance of probabilities that he is prejudiecam satisfied that the true purport of the agreement was resignation of the accused and his undertaking to reimburse MSE the money embezzeled to its prejudice did not materialise as a result of any undertaking by the MSE not to proceed purport of the agreemnt ourport on the one hand that

Having regard to the of the There is no evidence of any clear and specific statement to which expectation adduced on record does not reveal that accused was led to believe that As is also apparent from the testimonies of the witness, the accused on being informed of certain irregulatirie sthis agry is non existnt, wre its termstn, its terms According to MR Leclezio who was present at the meeting, it was agreed that in return the MSE would not press on with the charges.

. Be that as it may, and latter’s counsel whereby it was agreed that accused would tender his immediate resignation. regiIn the present case, in rejecting the submission that the proceeding against the appellant should have been stayed

R . v. Croydon J.J., ex p. Dean (1994) 98 Cr. App. R. 76 DC - the prosecution reneged on its promise that a 17 –year-old boy would not be prosecuted if he assisted the police. Proceedings were instigated despite implied representations by the police that he was viewed solely as a witness. Staughton L.J at 206, stated that “the prosecution of a person who has received a promise, undertaking or representation from police that he will not be prosecuted is capable of being an abuse of process”.

In Chu Piu –Wing v. Attorney General (1984) H.K.L.R. 411 – the court of appeal in Hong Kong allowed an appeaql against a conviction for contempt of court for refusing to obey a subpoena on the ground that the witness was assured by the Independent Commission Against Corruption that he would not be required to give evidence.

In Att.- Gen. Of Trinidad and Tobago v. Phillip {1994} 3 W.L.R. 1134 – The Privy Council decided that the reprosecution of offenders, after a pardon had been granted and an order of habeas corpus made, was an abuse of process and stayed proceedings, even though the initial pardon may have been invalid. It was the expectation aroused in the offenders that lead to the unfairness.

In R. v. Townsend [1997] 2 Cr.App.R. 540 , - The Court of Appeal stated that a breach of promise not to prosecute was not necessarily and automatically an abuse. However, it was manifestly unfair to prosecute a defendant after he had been initially treated as a prosecution witness, interviewed without caution and having provided a witness statement to the police. The material forming the basis of the prosecution case only emerged as a consequence of his co-operation.

In the following cases, the conduct of the prosecution did not lead to a stay:

CA. In Att.-Gen. of Trinidad and Tobago v. Phillip[1995] 1 A.C. 396, PC, it was said that it could well be an abuse of process to seek to prosecute those who have relied on an offer or promise of a pardon and complied with the conditions subject to which that offer was made, even though the pardon was invalid.

Where a defendant had received a letter constituting a "final decision not to prosecute" in respect of an allegation of sexual offences against a 10-year-old boy, the re-institution of proceedings many years later could not be justified by reference to the fact that a second boy had more recently made a complaint, nor by reference to the fact that the original decision had been taken in the light of the then rule of evidence requiring corroboration; the prosecution should have been stayed as an abuse; aIn son the t is clear that the power to ensure that there should be a fair trial according to law does not

4-50

“Magistrates' courts

the House of Lords confirmed that justices have the power to stay criminal proceedings for abuse of process, but held that such power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures. “

4-51

Burden of proof

The burden of establishing that the pursuit of particular proceedings would amount to an abuse of process is on the accused and the standard of proof is the balance of probabilities: R. v. Telford JJ., ex p. Badhan, ante; R. v. Crown Court at Norwich, ex p. Belsham,94 Cr.App.R. 382, DC; and R. v. Great Yarmouth Magistrates, ex p. Thomas[1992] Crim.L.R. 116, DC. How the accused is to discharge the onus upon him must depend on all the circumstances of the case: ex p. Badhan. In Tan v. Cameron[1992] 2 A.C. 205, PC, it was said that the question of whether the proceedings should be stayed is a question to be considered in the round and nothing is to be gained by the introduction of shifting burdens of proof. The Privy Council was concerned with an allegation of abuse based on delay. It was said (see p. 225) that the only burden to which the judge need refer is the "heavy" burden which always rests on a defendant who seeks a stay on the ground of delay. The longer the delay the more likely it will be that the prosecution is at fault, and that the delay has caused prejudice to the defendant; the less the prosecution has to offer in explanation, the more easily can fault be inferred. But the establishment of these facts is only one step on the way to a consideration of whether, in all the circumstances, the situation created by the delay is such as to make it an unfair employment of the powers of the court any longer to hold the defendant to account. “

4-54

Principles governing exercise of jurisdiction

An abuse of process was defined, in Hui Chi-Ming v. R.[1992] 1 A.C. 34, PC, as "something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding."

In Re Barings plc (No. 2);Secretary of State for Trade and Industry v. Baker[1999] 1 All E.R. 311, CA (Civ. Div.), it was said (in the context of proceedings under section 6 of the Company Directors Disqualification Act 1986) that a court may stay proceedings where to allow them to continue would bring the administration of justice into disrepute among right thinking people and that this would be the case if the court was allowing its process to be used as an instrument of oppression, injustice or unfairness.

It may be an abuse of process if either: (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution: R. v. Derby Crown Court, ex p. Brooks,80 Cr.App.R. 164, DC, as qualified by Att.-Gen.'s Reference (No. 1 of 1990)[1992] Q.B. 630,95 Cr.App.R. 296, CA.

4-56

The majority decision in R. v. Horseferry Road Magistrates' Court, ex p. Bennett[1994] 1 A.C. 42, HL, has now made it clear that the doctrine of abuse of process is not limited to situations where the defendant could not receive a fair trial. The accused had been brought to this country as a result of collaboration between authorities here and abroad and in disregard of extradition procedures. The doctrine was held to apply in such a situation, even though the matters complained of would not prevent a fair trial and even though it would not be unfair to try the accused if he had been returned to this country through lawful extradition procedures. Lord Griffiths said that the court had the power to interfere with the prosecution because the judiciary accepted a responsibility for the maintenance of the rule of law that embraced a willingness to oversee executive action and to refuse to countenance behaviour that threatened either basic human rights or the rule of law. It was the function of the High Court to ensure that executive action was exercised responsibly and as Parliament intended. If, therefore, it came to the attention of the High Court that there had been a serious abuse of power it should express its disapproval by refusing to act on it. Lord Bridge said that there is no principle more basic to any proper system of law than the maintenance of the rule of law itself.

In R. v. Mullen[1999] 2 Cr.App.R. 143, CA, post, §4-72a, it was said that the speeches in ex p. Bennett, ante, conclusively establish that proceedings may be stayed in the exercise of the court's discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. Guidance was also given as to the sort of matters that may affect the exercise of the discretion whether to stay the proceedings where there has been an abuse of the system by the authorities. See also the analysis of Connelly (ante, §4-48) in R. v. Beedie[1997] 2 Cr.App.R. 167, CA, post, §§4-58, 4-118, for further express acknowledgment that there are situations where proceedings should be stayed although a fair trial could be conducted; and see R. v. Early[2003] 1 Cr.App.R. 19, CA, and various of the authorities at §§4-62, 4-63, post.

The present boundaries of the doctrine are apparent from R. v. Beckford[1996] 1 Cr.App.R. 94, in which the Court of Appeal identified two types of case where proceedings may be stayed on the basis that their continuance would be an abuse of process, namely (a) where the defendant would not receive a fair trial, and/or (b) where it would be unfair for the defendant to be tried. In the decided cases it is possible to discern an overlap between these categories.

4-58

(link to supplement)

“Decisions as to the institution/continuation of prosecutions

The jurisdiction to stay proceedings on the basis of abuse of process is to be exercised with the greatest caution; the fact that a prosecution is ill-advised or unwise is no basis for its exercise; the question whether to prosecute or not is for the prosecutor; if a conviction is obtained in circumstances where the court, on reasonable grounds, feels that the prosecution should not have been brought, this can be reflected in the penalty: Environment Agency v. Stanford[1998] C.O.D. 373, DC. See also DPP v. Humphrys, ante, §4-49, and cf. Postermobile plc v. Brent LBC,The Times, December 8, 1997, DC, post, §4-62.

In DPP v. Hussain,The Times, June 1, 1994, the Divisional Court reiterated the exceptional nature of an order staying proceedings on the ground of abuse of process and stated that such an order should never be made where there were other ways of achieving a fair hearing of the case, still less where there was no evidence of prejudice to the defendant. Abuse of process arguments distort the trial process where they are not warranted; they should not be put forward as mere embroidery of a case that could be advanced equally well without them, and if they are advanced without justification the court should make it clear that such conduct is inappropriate and take appropriate steps where court time has been wasted: R. v. Childs,The Times, November 30, 2002, CA.

In R. v. Grays JJ., ex p. Low[1990] Q.B. 54,88 Cr.App.R. 291, DC, it was held that it would be an abuse of process to permit a private prosecutor to pursue a summons that charged the defendant with a matter in respect of which an earlier summons had been withdrawn by the CPS when the defendant had agreed to be bound over to keep the peace. A private prosecution, launched as a device to disrupt a conference, was held to be an abuse of process in R. v. Horseferry Road Magistrates' Court, ex p. Stephenson[1989] C.O.D. 470, DC.

In R. v. Belmarsh Magistrates' Court, ex p. Watts[1999] 2 Cr.App.R. 188, DC, it was held that a private prosecution for libel and misfeasance in a public office brought by a convicted cannabis trafficker against an investigator who had prepared a report referring to him as a cocaine dealer should have been stayed (even though it did not in fact violate the rule in Hunter v. Chief Constable of the West Midlands[1982] A.C. 529, HL, against collateral challenge) in that it was an affront to the court's sense of justice and propriety to entertain proceedings that were admittedly brought with a view to clearing the prosecutor's name, rather than prosecuting alleged criminals to conviction. Further, the delay of four-and-a-half years in commencing the prosecution amounted to an abuse where civil proceedings for the same alleged libel had been brought, but not prosecuted with due diligence.

As to the pursuit of charges in respect of offences taken into consideration, see post, §4-129.

It was held that there had been no improper manipulation of the process of the court, that it had been fair to re-try the appellant, and that the trial which had resulted in his conviction had been fair.

4-62

Prosecution going back on promise, etc.

The prosecution of a person who, in exchange for his co-operation, has received an undertaking, promise or representation from the police that he would not be charged with an offence, is capable of amounting to an abuse of process. It is not necessary for the applicant to show that the police had the power to make the decision not to prosecute; nor is it necessary for him to show that the case was one of bad faith: R. v. Croydon JJ., ex p. Dean,98 Cr.App.R. 76, DC. Breach of a promise not to prosecute does not necessarily and ipso facto give rise to abuse, but the longer that a person is left to believe that he will not be prosecuted the more unjust it becomes for the prosecution to renege on its promise and any manifest prejudice to him resulting from his co-operation will make it inherently unfair to proceed: nd the conviction was quashed as unsafe on account of the prejudice arising from the non-availability of various materials from the original investigation: R. v. D.[2000] 1Archbold News 1, CA.

In R. v. Bloomfield[1997] 1 Cr.App.R. 135, CA, it was held to have been an abuse of process to proceed with a prosecution where, at a previous plea and directions hearing, counsel for the Crown had indicated informally to defence counsel that it was proposed to offer no evidence against the defendant because it was accepted that he had been "set-up" by the police, where this proposal had been repeated before the judge in his room, and where the matter had then, at the request of the prosecution, been adjourned to another day for no evidence to be offered. It would bring the administration of justice into disrepute to allow the prosecution to revoke its original decision, without any reason being given as to what was wrong with it; the fact, if it were the fact, that the decision had been made without authority was irrelevant as the court and the defence were entitled to assume in ordinary circumstances that counsel had authority. To similar effect, see R. v. Hyatt[1997] 3Archbold News 2, CA (96 6237 Z2).

In R. v. Horseferry Road Magistrates' Court, ex p. DPP[1999] C.O.D. 441, DC, a prosecution had been instigated despite an assurance of no prosecution given by the police to the defendant's solicitor, and after some delay. A stipendiary magistrate concluded that it would, ipso facto, be unfair to try the defendant in such circumstances and stayed the proceedings. The Divisional Court quashed the stay and remitted the matter for reconsideration; breach of an assurance not to prosecute cannot per se justify a stay; the situation straddled the two categories of abuse; in such a situation it is incumbent on the court to investigate what, if any, prejudice to the defendant would result from pursuit of the proceedings (bearing in mind the exceptional circumstances that must exist before delay can be seen to result in prejudice such as to justify a stay), and the court must consider whether there are special circumstances present, as in R. v. Croydon JJ., ante (where special factors were defendant's youthfulness and the assistance he had given subsequent to the assurance) and R. v. Bloomfield, ante (where special factor was that the assurance had been given to the court and would already have been acted upon but for an adjournment to suit the convenience of the prosecution). As to the propriety of such matters being dealt with in the magistrates' court, see ante, §4-50. Similarly, there had been no abuse of process where the prosecution had indicated to the judge before whom a case of causing death by dangerous driving was listed for trial that they had decided to accept a plea of guilty to careless driving, but when invited by the judge to reconsider that decision had decided by the same afternoon to pursue the original charge; the appellant had been aware from the outset, having heard the exchange with the judge, that the judge was not happy with the original decision, and thereafter, it was only a short time before the change of decision, and there had been no prejudice to the appellant: R. v. Mulla,The Times, June 20, 2003, CA.

Further, there is no rule to the effect that an early decision in a magistrates' court not to proceed on one of several charges cannot, in the absence of fresh evidence, be re-visited by counsel prosecuting in the Crown Court: R. v. Murphy[2003] Crim.L.R. 471, CA (prosecution withdrew at magistrates' court a charge of indecent assault, another such charge in respect of a different child being transferred to the Crown Court, where the withdrawn charge was reinstated despite the absence of any new evidence; held, that where the decision to reinstate was taken in a different court at a significantly different stage in the process, and no objection had been taken by the defence at the time, the course taken did not bring the administration of justice into disrepute - see the commentary at Criminal Law Week 2003/25/1 for a different view).

Where there was an agreement between the prosecution and the defence that the defendant would plead guilty to two out of three charges and the prosecution would withdraw the third charge, which then happened, it was open to justices to adjudge it an abuse of process for the prosecution to seek to reinstate the third charge before the conclusion of the proceedings, but after the justices had retired to consider sentence, upon realising that what had been thought to be a legal impediment to a successful prosecution of the third charge was in fact no impediment: DPP v. Edgar,164 J.P. 471, DC.

Where a citizen engaged in certain conduct, in reliance on the (mistaken) opinion of a public official that such conduct would be lawful and without any long term effects, it was held to be an abuse of process to permit the continuance of a prosecution in respect of that conduct: Postermobile plc v. Brent LBC,The Times, December 8, 1997, DC.

t was the court's view that in the context of the turnover of criminal prosecutions in the country at the time, the chronology did not reveal any unjustifiable delay on the part of the investigating authority.

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In R. v. Dutton[1994] Crim.L.R. 910, and R. v. Birchall,The Times, March 23, 1995, the Court of Appeal upheld the refusal of the trial judges to stay proceedings, despite substantial delays and the difficulties thereby occasioned to the defence by reason of matters such as the death or disappearance of potential witnesses, changes in the layout of relevant scenes, the loss of initial notes of complaints and the absence of any contemporaneous medical or scientific evidence. In such cases, there is a burden on the defence to establish serious prejudice to the extent that that it cannot be dealt with as part of the trial process in accordance with the principles explained in Att.-Gen.'s Reference (No. 1 of 1990), ante, §4-64. That a stay should be the exception, not the rule, even where there has been unjustified delay, was emphasised, yet again in R. v. Cardiff Magistrates' Court, ex p. Hole[1997] C.O.D. 84, DC, as was the guidance that the court must give close scrutiny to an allegation that a fair trial is impossible and to the precise prejudice relied upon; it is for the defence to relate complaints of non-availability of particular documents and/or witnesses to a particular allegation and to a particular defence.

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Abuse of executive power

See generally R. v. Horseferry Road Magistrates' Court, ex p. Bennett[1994] 1 A.C. 42, HL (ante, §4-56). The principles explained in that decision were applied in R. v. Mullen[1999] 2 Cr.App.R. 143, where the Court of Appeal, on the basis of information that had not been disclosed prior to the proceedings in the Crown Court, concluded that (i) the British authorities had initiated and subsequently assisted in and procured the deportation of the appellant by unlawful means from Zimbabwe to England in circumstances where specific extradition facilities existed and, in so acting, had not only encouraged unlawful conduct in Zimbabwe, but had also acted in breach of public international law, (ii) in the particular circumstances, the conduct of the British authorities had been so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to succeed, and (iii) accordingly, in the exercise of the discretionary power of the court, the proceedings should have been stayed as an abuse of process. In arriving at its conclusions the court emphasised that nothing in the judgment should be taken to suggest that there may not be cases, such as R. v. Latif and Shahzad[1996] 2 Cr.App.R. 92, HL (as to which, see ante, §4-63), in which the seriousness of the crime is so great, relative to the nature of a particular abuse of process, that it would be a proper exercise of the judicial discretion to permit a prosecution to proceed. See also R. v. Hardwicke and Thwaites[2001] Crim.L.R. 220, CA, post, §15-523, as to the distinction between malpractice by the executive or law enforcement agencies and similar behaviour by other agencies.

As to the judicial discretion to permit a prosecution to proceed despite an abuse of power, see also R. v. MacDonald[1998] Crim.L.R. 808, CA, ante, §4-63b.

In R. v. Staines Magistrates' Court, ex p. Westfallen;R. v. Same, ex p. Soper;R. v. Swindon Magistrates' Court, ex p. Nangle[1998] 1 W.L.R. 652, DC , it was held that whilst there would be grounds for objection to the jurisdiction of the courts of this country if the domestic authorities had knowingly connived at or procured an authorised deportation of the accused from a foreign country for some ulterior or wrongful purpose, there were no such grounds where those authorities had not procured, influenced or colluded in either the decision of the authorities in a foreign country to deport the accused to this country or to a third country via this country or in the arrangements for carrying out the decision, and there had been no illegality, abuse of power or violation of international law or of the domestic law of the foreign country concerned.

Where a vessel flying a foreign flag was boarded by officers of Customs and Excise outside British territorial waters and brought into British waters in mistaken reliance on one provision of an international convention, but where the same action would have been justified under another provision of the same convention, the failure to adopt the correct procedure, being a technical mistake made in good faith, there had been no abuse of process in pursuing a prosecution for an offence contrary to section 19(2) of theCriminal Justice (International Co-operation) Act 1990 (post, §25-498): R. v. Dean and Bolden[1998] 2 Cr.App.R. 171, CA.

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Miscellaneous situations

In R. v. Munro,97 Cr.App.R. 183, the Court of Appeal said that there is a power to order a stay of proceedings, which exists in order to enable the court to regulate the efficient and fair disposal of criminal cases and that the ambit thereof is limited only by the purpose for which it exists. This is a power that is occasionally used where a defendant is too ill to be tried (or for his trial to continue): the prosecution must have been unwilling to offer no evidence under section 17 of theCriminal Justice Act 1967 (»»text) (post, §4-127), or the defendant may have been too ill to attend court to be arraigned (a pre-requisite to an order under that section) and the defence may have been unwilling to seek a nolle prosequi, or the Attorney-General may have refused their request.

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