There are many reasons why a Judge might conclude that it would not be proper for the courts to be used to prosecute a defendant. For example, delay in bringing proceedings, manipulation of the court’s procedures, entrapment by police officers, loss of evidence and so on. The prosecution facing an abuse of process application will always argue that the Judge can ensure fairness by, for example, excluding any evidence which is causing dispute, or by warning the jury that the defendant has been unable to call certain evidence because it has been destroyed – in other words anything except throw the case out before it even starts.
One of the leading cases in this area is R (Ebrahim) v Feltham Magistrates’ Court; Mouat v DPP  2 Cr. App. R, 23, DC. The High Court considered the situation where the two defendants, in two separate cases had asserted that video evidence would have assisted their defences but where that the video material was no longer available. In Mr. Mouat’s case he was videoed by an unmarked police car exceeding the speed limit. His defence was that he was trying to get away from a driver who was driving dangerously close behind him and he had no idea it was a police car; i.e. duress of circumstances. Once he stopped he was shown the video by the officers and had the choice to accept a penalty or go to trial – he elected trial. By the time of the trial the tapes in the police car had been re-used. The High Court quashed Mr. Mouat’s conviction. Mr. Ebrahim was not so fortunate. Ebrahim’s case concerned un-seized CCTV material. On the facts of that case the Court found that the defendant had had a fair trial even though the CCTV material was missing. The Court of Appeal said that when considering an abuse application on this basis a Judge must consider what the duty was to preserve any video material. If the court finds that there is no such duty for the material in question to be seized or preserved then there can be no stay of the prosecution. If, alternatively, there is such a duty, and it has been breached, then the court can only consider staying the indictment as an exceptional measure as the trial process itself can remedy the problem; e.g. by the Judge warning the jury about missing evidence, or by him excluding certain other evidence etc. If, however, the police or the prosecution appear to have acted with “bad faith or at the very least some serious fault” then a stay may be more readily granted.
The Ebrahim & Mouat case was followed in R v Boyd  RTR 2, CA. That was a causing death by careless driving whilst unfit through drugs case. Blood was taken from the suspect for testing but was not properly refrigerated and it was thereafter impossible for the defence to carry out their own expert analysis. The Court of Appeal found that the concern could not merely be addressed by excluding the evidence but had to be met by a stay of the indictment.
Two Categories of Abuse
In considering the development of case law it is clear that the Higher Courts will sometimes use the abuse of process jurisdiction to effectively ‘punish’ the police or prosecution for errors or faults. This ‘serious fault’ limb of the abuse of process jurisdiction highlights the way abuse applications fall into two broad categories; Category 1 cases where the defendant cannot receive a fair trial, and Category 2 cases where it would be unfair for the defendant to be tried: see R v Beckford (1996) 1 Cr App R 94, 101. Thus, if evidence that should have been seized by the police but now cannot be obtained, but would have been helpful to the defence, then that is a ‘Category 1’ situation and the Judge could, exceptionally, stay the trial on the basis that the defendant could not get a fair trial.
If, however, the police had the material but maliciously destroyed it, then that would be a ‘Category 2’ case and even though the defendant could get a fair trial it would be unfair to try him – in as much as it would offend our sense of justice and bring the administration of the criminal justice system into disrepute to do so, see e.g. R v Mullen  1 AC 42, HL.
R v Grant  2 Cr. App. R 28 is a Category 2 case. The police eavesdropped on the communications of a suspect and his solicitor. The Court held that unlawful acts of such a kind, amounting to a deliberate violation of a suspect’s right to legal privilege were such an affront to the integrity of the justice system that the prosecution was rendered abusive. However, though eavesdropping on privileged conversations will clearly put any prosecution in jeopardy the Privy Council were faced with a case where they felt forced to disapprove the Grant case; Curtis Warren v Att. General for Jersey  2 ALL ER 513, PC. In that case the police had placed an audio probe in the defendants hire car which would be driven through a number of overseas European countries. The police knew that permission from those countries had been refused for the use of such devices but went ahead anyway. The consequent abuse of process application failed, a decision upheld on appeal. Much turned on the facts of the case but the Council found that the Court of Appeal was wrong to say that deliberate invasion of a suspect’s right to legal professional privilege should generally lead to a stay; it may do so but category 2 cases were always to be a balancing exercise for individual consideration. A cynic might say that, in other words, the defendant in that case was too big to get away.
The use of undercover officers in covert operations often leads to accusations of abuse of process on the basis that the officers have entrapped or encouraged an offence to take place. This aspect of abuse deserves a whole article to itself but, in very short order, the Judge has to look to see if the undercover officer has ‘overstepped the mark’; R v Loosely; Att. General’s Ref (No 3 of 2000)  1 WLR 2060, HL. To make an effective abuse challenge to any undercover operation the defence really need to have sight of the senior officers’ authorisations – made under the Regulation of Investigatory Powers Act 2000 (RIPA). These authorisations are what make the intrusion into someone’s private life, e.g. by an undercover officer befriending a suspect over a long period of time, lawful. In R v G.S. and Ors  EWCA 887, unrep. 22/4/05, the Court of Appeal found that once the lawfulness of a covert operation was under challenge all the prosecution had to do was produce the authorisations to the trial Judge – but not to the defence. However, the case of R v Allsopp  EWCA Crim 703, decided just weeks earlier appears to approve of the release of authorisations to the defence and the challenge of covert operations by the defence (in the absence of the jury, see para. 28). There has been a more recent development in this area in an entrapment case called R v Palmer & Ors  EWCA Crim 1681 (7/8/14). In that case the Court of Appeal was not only content to consider the lawfulness of a ‘sting’ operation – the setting up of a shop by undercover officers to buy stolen goods – but the Crown accepted that once the defence challenged the lawfulness of a covert police operation then the authorisations should have been disclosed – albeit in redacted form. This material can provide the ammunition needed in an abuse challenge.
The area of disclosure has always been the most contentious area of criminal litigation and most of the great miscarriage of justice cases have turned on failures to disclose by the prosecution. The House of Lords laid down final and conclusive guidance on disclosure and Public Interest Immunity applications in the case R v H & C  2 AC 134 (the authors represented ‘H’).
However, it is sad fact that today prosecutors are still not getting disclosure right. With the pressure on the prosecution not to give the defence the ‘warehouse keys’ there has been an over analysis of Defence Statements and a willingness to conclude that no further disclosure is necessary.
In a case called R v O  EWCA Crim 3483 a Crown Court Judge was so exasperated by H.M. Custom’s failure to properly respond to the defence’s proper applications for disclosure he stayed the case as an abuse of process. The prosecution appealed and the Court of Appeal upheld the decision. The case was a fraud allegation where O was simply asking for business documents held by customs after they had searched his premises. Customs had been taking the line that most of the material neither assisted the defence or undermined the prosecution case and was therefore not disclosable and refused to even let the defence have sight of the outer covers of the documents. The defence were adamant that the business documents could assist. The Judge was swayed by the obstructive nature of Customs, he did not even make a decision on the merits of the material in question but was pushed in the end to saying that Customs had relied too heavily on the precise rule of law on disclosure, to the extent that they were inflexible and obstructive. His Honour said “if the prosecution approach the case without concession then they can expect none” and with that he threw the case out.
In a case involving indecent images of children, the defence solicitors wished to view the material and certain directions were given by the court regarding disclosure. The prosecution were not content with the security arrangements for the viewing and storage of this sensitive material and refused to obey the order, the indictment was stayed; R v LR  2 Cr. App. R 9, CA. The Lord Chief Justice noted that there will be cases, even were the defendant is in custody, where the prosecution will have to provide the material on CD so it can be examined by the defendant with his lawyers in prison with undertakings by the lawyers as to the use of the material.
Abuse of process applications should not be made lightly. In order to persuade a court to stay an indictment a defendant has to have the ammunition to support the application. That means the lawyers have to be alive to the possibilities that might arise in any case and think long-term; e.g. early written, and properly justified, requests for material –not months later. In other words if there is any hint of an abuse of process application then it must be kept at the forefront of the defending mind from the very outset.
Jonathan Lennon is a Barrister specialising in serious and complex criminal defence cases at 33 Chancery Lane Chambers, London. He has extensive experience in all aspects of financial and serious crime and the Proceeds of Crime Act 2002. He is ranked by both Legal 500 Chambers & Ptnrs & is recognised in C&P’s specialist POCA and Financial Crime sections; ‘he is phenomenal and is work rate is astonishing’ (2015).
Aziz Rahman is a Solicitor- Advocate and Partner at the leading Criminal Defence firm Rahman Ravelli Solicitors, specialising in Human Rights, Financial Crime and Large Scale Conspiracies/Serious crime. Rahman Ravelli are members of the Specialist Fraud Panel and have been ranked by Legal 500 as an 'exceptional' firm with Aziz Rahman being described as 'top class’'. The firm is also ranked in Chambers & Partners. Rahman Ravelli are a Top Tier and Band 1 firm.