[1] In R. v Maxwell (Paul) [2010] UKSC 48 [2011] 1 WLR 1837 ('Maxwell'), Lord Brown was in the minority (with Lord Collins), as he would have allowed the appeal, whereas, the majority dismissed the appeal. However, under 'The Law', Lord Brown said, paragraphs 91 to 100:

'91. The power of a criminal court to stay proceedings as an abuse of process in order to safeguard an accused person from injustice and oppression has long been recognised see, for example, Connelly v Director of Public Prosecutions [1964] AC 1254 and R v Humphrys [1977] AC 1. The more recent decision of the House of Lords in R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, however, can be seen as the foundation of much of the modern law regarding the Courts approach to abuse of process applications, more particularly in cases where, as here, no question arises of the defendant being unable to receive a fair trial were the case against him to proceed. Bennett concerned an appellant unlawfully brought to this country as a result of collusion between the South African and British police and on arrival here arrested and brought before magistrates to be committed for trial. The House held by a majority of four to one that in those circumstances the English court should refuse to try the defendant. For present purposes the following brief citations from the speeches will suffice. Lord Griffiths at pp 61–62:

“In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.”

Lord Lowry at p 76c-d:

“the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court's conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court's process has been abused.”

Lord Lowry at p 76g:

“It may be said that a guilty accused finding himself in the circumstances predicated is not deserving of much sympathy, but the principle involved goes beyond the scope of such a pragmatic observation and even beyond the rights of those victims who are or may be innocent. It affects the proper administration of justice according to the rule of law and with respect to international law.”

92. Ex p Bennett was directly applied by the Court of Appeal (Criminal Division) in R v Mullen [2000] QB 520 where it was held that the British authorities, in securing Mullen's deportation from Zimbabwe, had been guilty of “a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts” (p 535h) so that when, some eight years later, this came to light, his conviction fell to be quashed. This was so, moreover, notwithstanding Mullen's concession that he had been properly convicted by the jury and that, as Rose LJ giving the court's judgment observed, “The sentence of 30 years' imprisonment reflects the gravity of the offence” (involvement in an IRA conspiracy to cause explosions). The principle which the court there derived from Ex p Bennett was that “certainty of guilt cannot displace the essential feature of this kind of abuse of process, namely the degradation of the lawful administration of justice”: p534c.

93. The Ex p Bennett principle was similarly applied in the context of entrapment in R v Latif [1996] 1 WLR 104 where, at pp 112–113, Lord Steyn put it thus:

“The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed … The speeches in Ex parte Bennett conclusively establish that proceedings may be stayed in the exercise of the judge'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 … in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means.”

Just how that approach should apply in any particular entrapment case was further considered by the House of Lords in R v Looseley [2001] 1 WLR 2060 which decided that to lure, incite or pressurise a defendant into committing a crime which he would not otherwise have committed would be unfair and an abuse of process but not so if the law enforcement officer, behaving as an ordinary member of the public would behave, had merely given the defendant an unexceptional opportunity to commit a crime of which he had freely taken advantage. Although sometimes in such circumstances a stay is said to be on abuse of process grounds, Lord Hoffmann thought with Lord Griffiths in Ex p Bennett that the “jurisdiction was more broadly and accurately described as “a jurisdiction to prevent abuse of executive power”: p 2073e.

94. This line of authority has since been followed in two much publicised Court of Appeal decisions: R v Early [2003] 1 Cr App R 288 (judgment of Rose LJ) and R v Grant [2006] QB 60 (judgment of Laws LJ). Although both cases were cited and discussed at some length by the court below, I propose to consider them comparatively briefly. R v Early concerned a number of appellants charged with fraud offences arising out of the improper diversion to the UK market of large quantities of duty suspended alcohol from bonded warehouses, some of 30 or 40 separate such scams involving the Inland Revenue in an overall loss of some £300m. The defendant's case was essentially that they had been encouraged and facilitated in their offending by customs officers working in collusion with the warehouse manager (one Allington, a registered informant), a defence therefore somewhat akin to entrapment. Put very shortly, having failed in abuse of process applications following voir dire evidence from various customs officers and from Allington and others during lengthy PII and disclosure hearings, the defendants on advice pleaded guilty. Subsequently Allington admitted having lied, lies which he said had been approved by Customs and for which he had received benefits. Allowing the appeals, Rose LJ said, at para 18:

“It is a matter of crucial importance to the administration of justice that prosecution authorities make full relevant disclosure prior to trial and that prosecuting authorities should not be encouraged to make inadequate disclosure with a view to defendants pleading guilty. When inadequate disclosure is sought to be supported by dishonest prosecution evidence to a trial judge, this court is unlikely to be slow to set aside pleas of guilty following such events, however strong the prosecution case might appear to be.”

He then added, however, in the very next paragraph:

“In the ordinary way we would have ordered a retrial so that a trial judge, on the basis of honest evidence, could have had the opportunity of deciding about disclosure and about whether or not a stay should be granted. However, as the appellant has already served his sentence and it is nearly six years' since the offence is alleged to have taken place, we make no such order, as it would not be in the interests of justice to do so.”

Those passages in the judgment related specifically to Early's appeal; the other appellants' appeals, however, were similarly disposed of.

95. In short, despite the court's understandably harsh condemnation of the misconduct there, but for the passage of time it would nevertheless have ordered a retrial to see whether in truth the case was one of entrapment.

96. In R v Grant [2006] QB 60, the appellant had been convicted of conspiracy to murder, his wife's lover having been shot dead whilst answering a knock at the door. The appellant's case on appeal was that the trial judge should have allowed his abuse of process application and stayed the prosecution because of police misconduct: following the appellant's arrest the police had deliberately eavesdropped upon and tape-recorded privileged conversations between him and his solicitor in the police station exercise yard. Notwithstanding that this eavesdropping had in no way prejudiced the appellant's trial, his appeal was allowed and his conviction quashed. The Court of Appeal said this:

“54. … True it is that nothing gained from the interception of solicitors' communications was used as or (however indirectly) gave rise to evidence relied on by the Crown at the trial. Nor, as we understand it, did the intercepts yield any material which the Crown might deploy to undermine the defence case. But we are in no doubt but that in general unlawful acts of the kind done in this case, amounting to a deliberate violation of a suspected person's right to legal professional privilege, are so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court …”

“56. Where the court is faced with illegal conduct by police or State prosecutors which is so grave as to threaten or undermine the rule of law itself, the court may readily conclude that it will not tolerate, far less endorse, such a state of affairs and so hold that its duty is to stop the case …”

“57. We are quite clear that the deliberate interference with a detained suspect's right to the confidence of privileged communications with his solicitor, such as we have found was done here, seriously undermines the rule of law and justifies a stay on grounds of abuse of process, notwithstanding the absence of prejudice consisting in evidence gathered by the Crown as the fruit of police officers' unlawful conduct …”

It may be noted that the Court of Appeal later certified the following point of law of general public importance in the case:

“Where an accused person has been properly arrested and brought before the court but during the course of the investigation there is significant impropriety by some or all of the investigating officers in relation to the accused person, but the evidence that will be presented to the court is untainted by such impropriety so that the accused person can have a fair trial, when considering the interests of all parties, including the victim of the crime, is the greater public interest in having the accused person tried, it therefore being fair to try him, or in staying the indictment which is therefore a method of disciplining the investigating authority thereby overriding the rights of the victim?”

Whether the House of Lords then refused leave to appeal or the Crown chose not to pursue an appeal we have not been told. But I have to say that for my part I have the gravest doubts as to the correctness of the court's decision in Grant. True it is that Lord Taylor of Gosforth CJ had described legal professional privilege in R v Derby Magistrates' Court, Ex p B [1996] AC 487, 507 as much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests. But that is not to say that its every violation must result in a quashed conviction. The law against perjury may equally be described as fundamental to the whole administration of justice but no one has ever suggested that perjury by a prosecution witness (even a police officer) must in all circumstances, irrespective of whether it prejudices the defendant, necessarily preclude a defendant's conviction or, if discovered later, result in its quashing. Deeply regrettable though police perjury must always be, the law reports are replete with examples of convictions nonetheless being upheld on appeal on the basis that, the perjured evidence (sometimes in relation to purported confessions statements) aside, ample evidence remains to sustain the convictions safety.

97. The Court of Appeal in the present case distinguished R v Grant on the basis that, “Whilst helpful to the appellants, it should be remembered that R v Grant involved, as Laws LJ said, a deliberate violation of ‘a fundamental condition on which the administration of justice as a whole rests':” para 62. I too would distinguish R v Grant from the present case but on the very different basis that the police misconduct there constituted an altogether lesser, rather than a materially greater, threat to the administration of justice than the prolonged prosecutorial misconduct here misconduct without which this appellant would never have been prosecuted or convicted in the first place.

98. All the cases I have been considering are cases where, whatever executive or prosecutorial misconduct may have occurred in the past, there is no impediment to a fair trial of the defendant in future. The central question for the court in all these cases is as to where the balance lies between the competing public interests in play: the public interest in identifying criminal responsibility and convicting and punishing the guilty on the one hand and the public interest in the rule of law and the integrity of the criminal justice system on the other. Which of these interests is to prevail? It is, of course, as the cases show, a question which may arise in a number of different circumstances. It may arise before trial or in the course of trial, where the question for the court is whether or not to grant a stay and so halt the process short of verdict. Or it may arise on appeal against conviction when the question for the court is, first, should the conviction be quashed, and, if so, secondly, as in the present case, should a retrial be ordered. In each case, as it seems to me, the question is the same: what do the interests of justice require (the interests of justice, of course, clearly encompassing both the conflicting public interests in play)?

99. As the court below noted, not long ago the Privy Council in Panday v Virgil [2008] AC 1386 had occasion to consider this area of the law, including in particular what may be called the wrongful extradition and entrapment cases, in the context of a disputed order for a fresh trial following the quashing of the appellant's conviction by the Trinidad and Tobago Court of Appeal the conviction there having been quashed for apparent (although, for the purposes of the further appeal to the Board, assumed actual) bias.

100. In the course of giving the Board's judgment dismissing the appeal I said, at para 28:

“It will readily be seen that the factor common to all these cases, indeed the central consideration underlying the entire principle, is that the various situations in question all involved the defendant standing trial when, but for an abuse of executive power, he would never have been before the court at all. In the wrongful extradition cases the defendant ought properly not to have been within the jurisdiction; only a violation of the rule of law had brought him here. Similarly, in the entrapment cases, the defendant only committed the offence because the enforcement officer wrongly incited him to do so. True, in both situations, a fair trial could take place. But, given that there should have been no trial at all, the imperative consideration became the vindication of the rule of law.”

In that case, however, there was no question of the appellant not having been properly before the court at all. As we said:

“the quashing of his conviction restores the defendant to the position he was in before the unfair trial. Why should his success gain him immunity from what is conceded to be the position he now faces under the Court of Appeal's order: a fair trial upon charges properly brought?”' [bold added]

[2] That phrase was affirmed in Maxwell, from Lord Steyn's speech in R v Latif [1996] 1 WLR 104 (see paragraphs 14 and 16 of Maxwell). In R v Abu Hamza [2006] EWCA Crim 2918; [2007] QB 659, Lord Phillips LCJ recorded, at paragraph 63, a slightly different phrase:

'[Counsel for the defendant/appellant Mr Abu Hamza] accepts that the judge correctly summarised the relevant test as being whether there was “an overriding affront to public justice in the trial being permitted to take place at all”.'

[3] Various descriptions have been used in the authorities:

(1) 'representation' - Abu Hamza, paragraphs 54

(2) 'assurance' Abu Hamza, paragraphs 50 and 51;

(3) 'promise' - Scott, paragraphs 41 and 42;

(4) 'undertaking' - Scott, paragraph 73;

[4] In R v Abu Hamza [2006] EWCA Crim 2918; [2007] QB 659, Lord Phillips LCJ explained R v Bloomfield [1997] 1 Cr App R 135, at paragraph 53, as follows:

'R v Bloomfield [1997] 1 Cr App R 135 was a case where it was held to be an abuse of process to proceed with a prosecution in the face of an unequivocal statement by counsel for the Crown to the court that the prosecution would tender no evidence. In that case there was no change of circumstances which might have justified departing from that statement.'

[5] In Regina v Scott (Keith) [2019] EWCA Crim 205; [2020] 4 WLR 2, Hallett LJ said, at paragraph 83 (rejecting an argument):

'In those circumstances, there can be no argument that any kind of issue estoppel arose, a concept that in any event has no place in criminal proceedings (see Director of Public Prosecutions v Humphrys [1977] AC 1).'

[6] In R v Bloomfield [1997] 1 Cr App R 135 ('Broomfield'), Staughton LJ said, at paragraph 6 (at 136 to 138):

'Following committal the case was listed for plea and directions on December 20, 1995 at Luton Crown Court before Judge Marshall. When they got there prosecuting counsel approached defence counsel and indicated, in the clearest of terms, that the Crown wished to offer no evidence against the defendant on the charge of possession. This was because the prosecution accepted the defendant's account as to how he came to be in possession of the 100 Ecstasy tablets. They accepted that he had been the victim of a set-up.

We can add to that what [counsel for the Crown in the Court of Appeal] has told us today, for the prosecution; there was nobody from the Crown Prosecution Service present, only police officers, and prosecuting counsel was inexperienced.

We continue with the defendant's account. He says that it was further explained that because of the presence at court of certain other people it would be embarrassing to the police and prosecution if no evidence were to be offered that day. It was therefore suggested that if the plea and directions hearing could be adjourned to a later date, then no evidence would be offered at that adjourned hearing.

Counsel then went to see the trial judge in his room. A transcript of what was said in the judge's room has been obtained. What prosecuting counsel said was:

“What I would like to do today is to adjourn the plea and directions hearing and re-list it for mention to offer no evidence.”

The judge, with the approval of the defence, subsequently made that order in open court. The defendant was fully informed and he was naturally very happy to co-operate.

We do have the transcript of what took place that day. Prosecuting counsel said:

“I want to offer no evidence, but I do not want to do it today for the very simple reason which is that someone else who is involved in the wider police operation is present in this court building today. He is someone who is aware of certain police practices and is likely to smell a rat if I stand up and offer no evidence today at this plea and directions hearing.”

Then she continued:

“What I would like to do today is just adjourn the plea and directions hearing and re-list it for mention to offer no evidence.

Judge Marshall: All right.”

Staughton LJ in Broomfield then added, at paragraphs 13 to 15:

'There are certain further facts that should be mentioned. On January 9, 1996 defence counsel was told, apparently in chambers, by somebody for the prosecution, that the Crown Prosecution Service had decided not to adopt the course indicated on December 20. He got in touch with his solicitors and asked them to seek clarification, which they did by a letter to the Crown Prosecution Service on January 12.

The next thing that happened was that there were two letters from the Crown Prosecution Service, one of January 17 and one of January 24. Those said, as we understand it, that the Crown Prosecution Service had arranged a conference with new prosecuting counsel and would thereafter inform the defence solicitors of the Crown's stance. That was done on February 8 when the Crown Prosecution Service, by letter, indicated that the Crown intended to continue the prosecution.

There was a request by the defence solicitors for reasons, and the answer was that prosecuting counsel at the hearing on December 20 had no instructions from the Crown Prosecution Service to indicate that the Crown would offer no evidence.'

[7] In R v Bloomfield [1997] 1 Cr App R 135 ('Broomfield'), Staughton LJ said, at paragraph 22 (at 139):

'The question is whether the court, and for that matter the defendant, were entitled to assume that she had authority to say what she did say. We are of the view that prosecuting counsel has ostensible authority to conduct a case in court in any ordinary circumstances.'

On this, Staughton LJ in Broomfield said, at paragraphs 22 and 23 (at 139):

'There is some discussion on the topic of the authority of counsel generally in Halsbury's Laws of England, (4th ed.) Vol. 3(1), paras. 520 and 521, but this does not deal with the specific topic of the authority of prosecuting counsel in a criminal case.

We do not see how the court can possibly be expected to enquire whether prosecuting counsel has or has not authority to say what she says in court. Nor can a defendant be expected to enquire whether counsel prosecuting him has authority to say what she does say. We would say that the court and the defendant are entitled to assume that she does have authority.'

[8] In R v Abu Hamza [2006] EWCA Crim 2918; [2007] QB 659, Lord Phillips LCJ said, at paragraphs 51 and 52:

'Such circumstances can arise if police, who are carrying out a criminal investigation, give an unequivocal assurance that a suspect will not be prosecuted and the suspect, in reliance upon that undertaking, acts to his detriment. Thus in R v Croydon Justices, Ex p Dean [1993] QB 769, a 17-year-old youth, who had assisted in destroying evidence after a murder had taken place, was invited by the police to provide evidence for the prosecution and assured that, if he did so, he would not himself be prosecuted. He thereupon provided evidence against those who had committed the murder and admitted the part that he had played. In these circumstances, which Staughton LJ presiding in the Divisional Court described as “quite exceptional” (p 779), it was held to be an abuse of process subsequently to prosecute him.

In R v Townsend [1997] 2 Cr App R 540 the Vice-President, Rose LJ, giving the judgment of this court, approved the propositions: where a defendant has been induced to believe that he will not be prosecuted this is capable of founding a stay for abuse; where he then co-operates with the prosecution in a manner which results in manifest prejudice to him, it will become inherently unfair to proceed against him. He added that a breach of a promise not to prosecute does not inevitably give rise to abuse but may do so if it has led to a change of circumstances: pp 549, 551. These propositions echo the observation of Lord Lowry in R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, 74:

“It would, I submit, be generally conceded that for the Crown to go back on a promise of immunity given to an accomplice who is willing to give evidence against his confederates would be unacceptable to the proposed court of trial; although the trial itself could be fairly conducted.”'

[9] In R v Abu Hamza [2006] EWCA Crim 2918; [2007] QB 659, Lord Phillips LCJ dealt with a futher submission. That the defendant being deprived of his citizenship by the Secretary of State, meant the prosecution was an affront to justice such that it was an abuse of process (paragraphs 69 to 76). The appeal against the 1st instance judge's rejected of this argument, failed (paragraph 76).

[10] In R. v Jones (Sally Ann) [2021] EWCA Crim 1195; [2022] 1 Cr. App. R. 4 ('Jones'), the basic facts were that:

(1) J and 2 others (the 'conspirators'), had worked at an insurance company called DAS, all in very senior or relatively senior positions in DAS (paragraph 6)

(2) DAS needed, as part of its business as a legal expenses insurer, medical reports (paragraph 6) The other 2 founded a company call Medreport, to provide such reports. J also became involved.

(3) the conspirators: 

(a) never told DAS of their interest in Medreport,

(b) exploited their positions in DAS, to cause DAS to contract with Medreport, for the provision of medical reports. Over 90% of DAS’s requirement was directed to Medreport in this way (paragraph 6)

(c) from this, the conspirators made a secret profit, unbeknown to DAS, over a c.14 year period. 

(d) 'They took careful steps to keep their involvement, control and profit from Medreport secret from DAS. They devised systems of routing funds which concealed the payment of dividends to them and they profited without DAS knowing that Medreport was in substance their business.' (paragraph 6)

(4) Gradually suspicion arose as to the uncommercial nature of the relationship between DAS and Medreport. DAS commissioned inquiries and investigations, but the true position was successfully concealed by the conspirators (paragraph 10)

(5) then 

'In 2011 certain non-UK executives from within the DAS Group insisted upon a tendering process being carried out for the allocation of expert reports. Medreport failed in this process, but the contract with Medreport was, nonetheless, renewed. In 2012 the board of DAS decided to terminate the relationship. Medreport, led by Sally Jones, sued DAS. Ignorant of the conspiracy, DAS settled the case and paid a sum by way of compromise exceeding £800,000.'

(6) in July 2015, DAS discovered the conspiracy, from documents obtained under a Norwich Pharmacal order (detailed in paragraphs 23 to 27). Males LJ recorded that 'Documents proving the secret ownership were finally acquired by DAS in 2015 as a result of DAS applying for and obtaining a Norwich Pharmacal order.' (paragraph 12)

(7) When the police declined to prosecute, DAS commenced a private prosecution (paragraph 13). 

It was the above settlement/compromise (for £800,000) (the 'Settlement') that came the focus of the case in Jones. The Settlement was entered into on 26.7.13 (paragraph 19) and the recitals, stated Males LJ, made it clear that it was '...settlement of actual and potential civil litigation in which each side had claims' (paragraph 19). Notwithstanding that, Ms Jones relied upon clause 2.3 of the Settlement, as containing the representation she would not face a criminal prosecution. Clause 2.3 of the Settlement read:

'Save for the purposes of enforcing any of the terms of this Agreement, DAS and Medreport agree not to sue, commence, voluntarily aid in any way, prosecute or cause to be commenced or prosecuted against any other Party, any action, suit or other proceeding concerning the DAS Claims or the Medreport Claims, in this jurisdiction or any other.'

The Settlement contains a definition for 'DAS Claims', which was wide (paragraph 22).

Males LJ, at paragraph 18 of Jones, recorded that, appeal 'Ground 1 is that the judge wrongly declined to stay the trial because of the terms of a settlement agreement dating from July 2013, under which it is said that DAS agreed it would not prosecute the directors of Medreport, one of whom was [Ms Jones], whether in civil or criminal proceedings.'

As to this, Males LJ in Jones said, at paragraphs 39 to 43:

'In the present case it is not obvious that [Ms Jones] ever believed that the settlement agreement included a promise by DAS not to bring criminal proceedings against her or that she acted on any such belief, whether by acceding to the Norwich Pharmacal application or at all, and she chose not to give evidence that she did. On the contrary, there is every reason to believe that she had no such belief and that the argument now deployed is essentially a legal construct. Hence the late stage at which this point emerged when, if there had been any substance in it, it would have been the first point to be taken. The fact that it was not taken until a late stage, after a galaxy of abuse of process arguments had already been deployed unsuccessfully, speaks volumes.

Even if [Ms Jones] had such a belief, however, she would have been mistaken. On any view the settlement agreement cannot be regarded as an unequivocal statement that no criminal proceedings would be brought against her. We would, however, go further and conclude that on its true construction cl.2.3 of the agreement is concerned only with civil proceedings.

For convenience, we set out the clause again:

“Save for the purposes of enforcing any of the terms of this Agreement, DAS and Medreport agree not to sue, commence, voluntarily aid in any way, prosecute or cause to be commenced or prosecuted against any other Party, any action, suit or other proceeding concerning the DAS Claims or the Medreport Claims, in this jurisdiction or any other.”

Plainly the word “prosecute” is capable of referring to civil proceedings and need not extend to criminal proceedings. Where the object of the verb is a person, that refers most naturally to a criminal prosecution, but where (as here) the object is an “action, suit or other proceeding”, that is not necessarily so. The term is used here in contrast to commencement of proceedings. Proceedings have first to be commenced and, once commenced, have then to be prosecuted. In itself, the word “prosecute” is neutral and whether it extended to criminal proceedings must depend upon the context. The context of cl.2.3 was the civil claims being brought by each party against the other and there is no reason to suppose that either party contemplated criminal proceedings at this stage. The “DAS Claims” were actual or potential civil claims. A prosecution, even a private prosecution, cannot naturally be regarded as a “claim by” the prosecutor, but is a proceeding brought in the public interest. The language and context taken together therefore indicate strongly that the clause was not intended to extend to criminal proceedings.

Moreover, in circumstances where the law is clear that any promise of immunity from criminal prosecution must be unequivocal, and the drafter can reasonably be expected to have known that, any doubt should be resolved in favour of holding that a statement which is less than unequivocal does not amount to such a promise. Here the parties were legally advised and the settlement agreement was drafted by solicitors. The agreement can fairly be construed on the basis that, if it had been intended to include a promise of immunity from criminal prosecution, the drafter would have understood that this needed to be spelled-out unequivocally. It was not.

Finally, to construe “action, suit or other proceeding” as extending to criminal proceedings would produce strange and unlikely results. It would mean that, in the event of criminal proceedings brought by the prosecution authorities against [Ms Jones], DAS would be unable to cooperate voluntarily with those authorities. It could not produce documents, even its own documents, without a production order. It could not provide witness statements without a summons. It is not plausible that cl.2.3 should be read in this way.

For these reasons we conclude that there is no substance in ground 1.'

[11] In Regina v Telford Justices, Ex parte Badhan [1991] 2 WLR 866 [1991] 2 QB 78 ('Badhan'), Mann LJ said, at paragraph 6:

'In modern times the law of abuse of process can be said to be derived from the speeches in Connelly v. Director of Public Prosecutions [1964] A.C. 1254. Lord Morris of Borth-y-Gest said, at p. 1301:

"There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process."

This general principle was treated as applicable to justices holding a summary trial by Lord Parker C.J., with whom Diplock L.J. and Ashworth J. agreed, in Mills v. Cooper [1967] 2 Q.B. 459. Lord Parker C.J. said, at p. 467:

"So far as the ground upon which they did dismiss the information was concerned, every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court."

Lord Parker's words were amongst the material considered in Reg. v. Humphrys [1977] A.C. 1. That case concerned the place, if any, of the doctrine of issue estoppel in the criminal law. In the course of their speeches, three members of the House of Lords considered the power of a judge to refuse to allow a prosecution to proceed. Viscount Dilhorne, after quoting Lord Parker C.J. said, at p. 26:

"I must confess to some doubt whether this is a correct statement of the law in relation to magistrates' courts. If it is, it appears to me to be fraught with considerable dangers. One bench thinking a prosecution should not have been brought will dismiss it as oppressive and vexatious. Other benches on precisely the same facts may take a completely different view, with the result that there is a lack of uniformity in the administration of justice. Nor is the existence of the power my noble and learned friends Lord Salmon and Lord Edmund-Davies think the judge has and its exercise without considerable dangers. A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval."

Lord Salmon was of a different view, but was cautious as to the powers of justices. He said, at p. 45:

"My noble and learned friend, Viscount Dilhorne, has dissented from the passages in the speeches of my noble and learned friends, Lord Devlin and Lord Pearce, to which I have referred. He also dissents from a similar passage in Mills v. Cooper [1967] 2 Q.B. 459 in which Lord Parker C.J. said, at p. 467: 'every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court.' My noble and learned friend, Viscount Dilhorne, considers that there is no authority for that proposition. I should have thought that the opinions of Lord Devlin, Lord Pearce and Lord Parker C.J. in themselves constituted powerful authority. But these are by no means the only authorities. In Metropolitan Bank Ltd. v. Pooley (1885) 10 App.Cas. 210, Lord Blackburn said, at pp. 220-221: 'But from early times . . . the court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing - the court had the right to protect itself against such an abuse; . . .' and the Earl of Selborne L.C. said, at p. 214: 'The power seemed to be inherent in the jurisdiction of every court of justice to protect itself from the abuse of its own procedure.' I have no more doubt than had my noble and learned friends, Lord Devlin and Lord Pearce, that Lord Selborne L.C. and Lord Blackburn would have considered their words to be as applicable to criminal as to civil proceedings.

"I respectfully agree with my noble and learned friend, Viscount Dilhorne, that a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. Fortunately, such prosecutions are hardly ever brought but the power of the court to prevent them is, in my view, of great constitutional importance and should be jealously preserved. For a man to be harassed and put to the expense of perhaps a long trial and then given an absolute discharge is hardly from any point of view an effective substitute for the exercise by the court of the power to which I have referred. I express no concluded view as to whether courts of inferior jurisdiction possess similar powers. But if they do and exercise them mistakenly, their error can be corrected by mandamus: see Mills v. Cooper [1967] 2 Q.B. 459."

Lord Edmund-Davies, at p. 53, had previously cited Lord Parker's words with evident approval.

Reg. v. Brentford Justices, Ex parte Wong [1981] Q.B. 445, a decision of this court, is apparently the first reported case in which it was held that justices themselves had power to prevent a summary trial on the ground of abuse of process. Donaldson L.J. with whom Mustill J. agreed, referred to the speech of Lord Salmon in Reg. v. Humphrys [1977] A.C. 1 and to the judgment of Lord Parker C.J. in Mills v. Cooper [1967] 2 Q.B. 459 and said [1981] Q.B. 445, 450D: 

"For my part, I think that it is open to justices to conclude that it is an abuse of the process of the court for a prosecutor to lay an information when he has not reached a decision to prosecute."

Reg. v. Oxford City Justices, Ex parte Smith (1982) 75 Cr.App.R. 200 was another case in this court of abuse of process in relation to a summary trial. Lord Lane C.J. said, at p. 204: "The matter of the power of the justices in cases such as this to decline to hear the summons is, of course, very strictly confined . . ."

In Reg. v. Canterbury and St. Augustine Justices, Ex parte Klisiak [1982] Q.B. 398 this court (Lord Lane C.J. and Webster J.) had before them an application for judicial review in regard to committal proceedings. This was the first case, so far as we know, concerning committal proceedings and abuse of process. Lord Lane C.J. said, at p. 411:

"Next it is submitted that the justices always have a discretion to prevent an abuse of the process of their court, and this, it is alleged, is what happened on both these occasions. We were referred to a number of authorities on the powers of courts to prevent an abuse of the process before them; principally, Connelly v. Director of Public Prosecutions [1964] A.C. 1254; Mills v. Cooper [1967] 2 Q.B. 459, especially at p. 467; and Reg. v. Humphrys [1977] A.C. 1. I am prepared to assume that there does exist in the justices an inherent power to act so as to prevent any flagrant abuse of the processes of their court, limited necessarily by any relevant statutory obligation. This power, if it exists, would have to be exercised by the justices very sparingly and only in the most obvious circumstances which disclose blatant injustice."

In Reg. v. Horsham Justices, Ex parte Reeves (Note), 75 Cr.App.R. 236 Ackner L.J. had considered, at p. 241, that justices had sufficient powers to prevent vexatious or oppressive committal proceedings "providing . . . that they act within the narrow compass which I think their jurisdiction and their particular position necessitates." Skinner J. reserved his position as to that. The point was not before the court as the case concerned supervisory jurisdiction, but the remarks of Ackner L.J. correspond with what Lord Lane C.J. had said in Reg. v. Canterbury and St. Augustine Justices, Ex parte Klisiak [1982] Q.B. 398 (that case was decided on 12 November 1980; Reg. v. Horsham Justices, Ex parte Reeves, 75 Cr.App.R. 236 was decided on 1 December 1980).

The decision in Reg. v. Canterbury and St. Augustine Justices, Ex parte Klisiak [1982] Q.B. 398 was referred to in Reg. v. Canterbury and St. Augustine Justices, Ex parte Turner (1983) 147 J.P. 193 where on an application to quash a decision of justices that an institution of committal proceedings was not an abuse of process, McNeill J. (with whose reasons Drake J. agreed) said, at p. 199:

"It seems to me that the power to exercise a discretion for a jurisdiction to decline to hear proceedings on the ground of abuse of process is even more limited where the justices are sitting as examining magistrates and not dealing with the case to its final determination."'

The case which has, since 1984, been commonly cited and applied in regard to the powers of examining justices to refuse to undertake an inquiry on the ground that it would be an abuse of the process of their court, is the decision of this court (Lord Lane C.J. and Sir Roger Ormrod) in Reg. v. Derby Crown Court, Ex parte Brooks (1984) 80 Cr.App.R. 164 . There was in that case an application for judicial review of a decision of justices whereby they had rejected a submission of the applicant that it would in the circumstances be an abuse of process to ask for his committal for trial upon charges of theft having regard to the length of time which elapsed since the offences were committed. Counsel for the Director of Public Prosecutions conceded that "the justices had a discretion in certain circumstances to refuse to hear . . . committal proceedings:" see p. 167. The judgment of the court was delivered by Sir Roger Ormrod who said, at p. 168:

"The discretionary power of a magistrates' court to stop a prosecution has only recently been recognised by this court, and this development of the law is in a phase of rapid growth. It has no statutory basis. Its existence was doubted in 1976 by Viscount Dilhorne and Lord Salmon in Director of Public Prosecutions v. Humphrys [1977] A.C. 1, 26, 46."

He referred to Reg. v. Horsham Justices, Ex parte Reeves, 75 Cr.App.R. 236, Reg. v. Brentford Justices, Ex parte Wong [1981] Q.B. 445 and Reg. v. Oxford City Justices, Ex parte Smith, 75 Cr.App.R. 200 and then said, 80 Cr.App.R. 164, 168:

"In our judgment, bearing in mind Viscount Dilhorne's warning in Reg. v. Humphrys (1976) 63 Cr.App.R. 95, 107; [1977] A.C. 1, 26, that this power to stop a prosecution should only be used 'in most exceptional circumstances,' and Lord Lane C.J.'s similar observation in Reg. v. Oxford City Justices, Ex parte Smith (1982) 75 Cr.App.R. 200, 204, which was specifically directed to magistrates' courts, that the power of the justices to decline to hear a summons is 'very strictly confined,' the effect of these cases can be summarised in this way. The power to stop a prosecution arises only when it is an abuse of the process of the court."

He then proceeded to exemplify what may be an abuse of process.

Reg. v. Derby Crown Court, Ex parte Brooks, 80 Cr.App.R. 164 is accepted as correctly stating the law in a number of decisions of this court, for example: Reg. v. Colwyn Justices, Ex parte Director of Public Prosecutions (unreported), 7 March 1988, D.C., Reg. v. Sunderland Magistrates' Court, Ex parte Z [1989] Crim.L.R. 56 and Reg. v. Bow Street Stipendiary Magistrate, Ex parte Director of Public Prosecutions (1989) 91 Cr.App.R. 283 where, at p. 295, the prosecution conceded the power of the justices but reserved the right to raise the question in the House of Lords.

[bold added]

Mann LJ in Badhan went on to consider (more) authorities where justices were acting as examining magistrates. The law had moved on from Atkinson v. United States of America Government [1971] AC 197.

Mann LJ said, in Badhan, at 89-90:

'The law has developed in the 21 years which have elapsed since the speeches in Atkinson's case were delivered on 5 November 1969. We do not find that development to be inconsistent with the decision in Atkinson's case, and we would have thought it unfortunate if we had so to find. In our judgment, the way in which the law has developed is a beneficial one. It is, of course, a development which puts to one side the view of Viscount Dilhorne in Reg. v. Humphrys [1977] A.C. 1, but it is one which accords with the principle of which Lord Salmon spoke in the same case. Also, it accords with the fundamental proposition stated by Lord Morris of Borth-y-Gest in Connelly v. Director of Public Prosecutions [1964] A.C. 1254 . We, for our part, can see no reason why examining justices (even one examining magistrate: see the Act of 1980, section 4(1)) should not be able to decide that an initiation of the process of committal is an abuse of that process. A question of abuse is one which is within the ability of justices to decide, and it is one which they admittedly have power to determine on summary trial. If complaint is made of their decision, then the complainant can come to this court and seek judicial review. Mr. Collins suggested that abuse of process should be left to the supervisory jurisdiction of this court and to the power of the Crown Court to decide a plea in bar and against whose decision a defendant can appeal to the Court of Appeal, Criminal Division. We disagree. We think that a plea of abuse should be open to the accused subject at the earliest opportunity.

Our conclusion upon the argument which we have heard is that justices sitting to inquire into an offence as examining justices do have, as part of their inherent jurisdiction, the power to refuse to undertake the inquiry on the ground that it would be an abuse of process to do so. It is desirable that justices should have the power, and previous observations in and decisions of this court are not inconsistent with the decision in Atkinson v. United States of America Government [1971] A.C. 197.

We emphasise that the power which the justices have is one to prevent an abuse of process. They have no power to refuse to embark on an inquiry because they think that a prosecution should not have been brought because it is, for example, mean-minded, petty or animated by personal hostility. It is for this reason that the powers of the justices are said to be "very strictly confined:" Reg. v. Oxford City Justices, Ex parte Smith, 75 Cr.App.R. 200, 204, per Lord Lane C.J. That being said, there is here a point of constitutional importance. It is the duty of any court, be that court superior or inferior, to protect its process from abuse. We believe that the number of cases in which examining justices are called upon to perform that duty is, and will remain, small. That it should remain small will be the result of a responsible exercise by prosecuting authorities of their powers to initiate proceedings. An exercise of those powers is not reviewable here. The constitutional position was stated by Lord Devlin in Connelly v. Director of Public Prosecutions [1964] A.C. 1254 when he said, at p. 1354:

"The fact that the Crown has, as is to be expected, and that private prosecutors have (as is also to be expected, for they are usually public authorities) generally behaved with great propriety in the conduct of prosecutions, has up till now avoided the need for any consideration of this point. Now that it emerges, it is seen to be one of great constitutional importance. Are the courts to rely on the Executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them? To questions of this sort there is only one possible answer. The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused.

With that statement we are in respectful agreement.'

[12] In R. (on the application of H) v Guildford Youth Court [2008] EWHC 506 (Admin) ('Guildford Youth Court'), Silber J had before him an appeal by a defendant (claimant), seeking an order, quashing a decision by justices in the Youth Court, refusing to stay a prosecution (under section 20 of the Offences against the Persons Act 1861). Siber J said, at paragraph 1:

'The thrust of the claimant's case is first that a representative on behalf of the prosecution had promised not to prosecute the claimant, and second, that they had resiled from that promise. In consequence it is said that the justices ought to have stayed the prosecutions as an abuse but that they failed to do so.'

The underlying allegation was the defendant had kicked a fellow pupil in the jaw, causing a facture (paragraph 3). 

The circumstances of the promise/reneging, were as follows (paragraphs 4 to 8):

'The claimant, who had no previous convictions, was interviewed by the police on 8 August 2006 in the presence of an appropriate adult and a representative of his solicitors, Mr Lee Wainscoat.

Before the interview with the police it was intimated to Mr Wainscoat that it was possible that the claimant would receive a final warning as a way of resolving the matter. When he was interviewed the claimant admitted the offence, but he maintained that he had been bullied and that that was the reason why he had kicked the victim in the jaw.

In the interview the officer told the claimant that he would seek to have the matter resolved that day. The claimant was bailed to an intervention clinic on 30 September 2006 when it was indicated that the matter would be dealt with by way of a final warning.

On 31 August 2006 the claimant's solicitors were contacted by the police who informed them that the offence might not be suitable for a final warning. Surprise was expressed that the claimant had been referred to the intervention clinic. The officer indicated that the matter had been referred to the Crown Prosecution Service for advice on charging.

The claimant duly attended Guildford Police Station on 30 September 2006 when he was further bailed to 4 November 2006. On that date the claimant was formally charged with an offence of unlawfully inflicting grievous bodily harm contrary to section 20 of the Offences against the Persons Act 1861.'

At the start of the trial, the defendant (claimant) contended that the '...decision to prosecute him amounted to an abuse of process as he had a legitimate expectation as a consequence of what had been said to him at the police station at the time of the interview that the matter would be dealt with by way of a final warning.' (paragraph 9)

The trial went ahead (seemingly without a decision on the stay application). After oral evidence, the prosecution conceded 'that there had been a clear promise that the matter would be dealt with by way of a final warning to the claimant rather than by a prosecution. However, the Crown denied that that formed an adequate basis for the proceedings to be stayed as an abuse of process. No reasons were given as to why they wished to prosecute the claimant, notwithstanding the earlier promise.' (paragraph 10)

At 1st instance, the justices 'found that there had been a representation made to dispose of the claimant's case by way of a final warning upon which the prosecution had reneged. They accepted that this amounted to an abuse of process, but they declined to exercise their discretion to stay the proceedings. They found that the claimant had suffered no prejudice and having regard to the seriousness of the offence and the public interest in maintaining a prosecution, they declined to stay the proceedings.' (paragraph 11)

The next day, the defendant (claimant) entered a guilty plea (paragraph 12). Subsequently, he appealed to the High Court. 

As to the law, Silber J said, at paragraphs 13 to 15:

'It is settled law that a criminal prosecution may be stayed for an abuse of process in two circumstances: first, where the defendant could not receive a fair trial; and second, where it would be unfair to try the defendant: see R v Beckford [1996] 1 Cr App R 94. It is also accepted by the defence that the onus is on them to show that it would be unfair to try the claimant.

There have been a number of cases in which the court has had to consider whether a prosecution should be stayed on the basis of an abuse of process where an indication had been given that a prosecution would not be brought. The thrust of the case for the claimant is that there is a public interest in holding officers of the State to promises made by them where they understand what is happening. It is noteworthy that in a case in the Hong Kong Court of Appeal, Chu Piu-wing v Attorney General [1984] HKLR 441, McMullin V-P said at page 471:

“… there is a clear public interest to be observed in holding officials of the State to promises made by them with full understanding of what is entailed by the bargain.”

The principle in that case was considered by the Court of Appeal, Criminal Division in R v Mark Andrew Bloomfield [1997] 1 Cr App R 135, in which the defendant had been charged with the possession of Class A controlled drugs. At the plea and directions hearing at the Crown Court prosecuting counsel indicated to defence counsel that the prosecution wished to offer no evidence because it was accepted that the defendant had been the victim of a set-up. The prosecution later changed their mind and brought the prosecution. An application to stay the proceeding as an abuse failed in front of the trial judge. However, the Court of Appeal allowed the appeal on the basis that whether or not there was a prejudice to the defendant it would bring the administration of justice into disrepute to allow the Crown to revoke the original decision without any reason being given as to what was wrong with it. Staughton LJ, giving the judgment of the court, said at page 143B:

“The statement of the prosecution that they would offer no evidence at the next hearing was not merely a statement made to the defendant or to his legal representative. It was made coram judice, in the presence of the judge. It seems to us that whether or not there was prejudice it would bring the administration of justice into disrepute if the Crown Prosecution Service were able to treat the court as if it were at its beck and call, free to tell it one day that it was not going to prosecute and another day that it was.”'

Analysing the facts before him, Silber J in the Guildford Youth Court case said, at paragraph 16:

'The promise not to prosecute in this case was not made in the presence of the judge, but that in my view is not a critical factor. The fact that a promise was made by an officer of the State, namely the police officer who was in charge at that stage deciding whether or not to prosecute, is something that there is a clear public interest in upholding. The point was made that a distinguishing feature in this case might be the seriousness of the charge. I am unable to accept that as being a valid factor.'

Silber J then, at paragraph 17, concluded that:

'In the light of these established principles I accede to the claimant's application.'

Silber J the quashed: (a) the justices' decision to refuse to stay the prosecution; and (b) the conviction. 

[13] In Mansfield v DPP [2021] EWHC 2938 (Admin) [2022] QB 335 [2022] 2 WLR 229 ('Mansfield'), the Divisional Court (Stuart-Smith LJ; May J) heard an appeal against a 1st instance DJ's decision in the Magistrates Court, to refuse to stay, on the basis of abuse of process, a prosecution against a defendant, for possession of a bladed article in a public place. 

May J (with whom Stuart-Smith J agreed) adopted the facts summary given by the DJ. May J in Mansfield said, at paragraph 2:

'We take the facts from paras 6–13 of the full and helpful case stated provided by the district judge:

“6. On 18 July 2020 [DM] was 18 years old and of previous good character. He was the front seat passenger in a vehicle that was stopped by PC Roberts, shortly before midnight. The officer noticed the smell of cannabis. [DM] told him that he had a ‘spliff’ rolled cannabis cigarette and the driver did not have anything on him. The officer took the cigarette from [DM]. Soon after the officer lawfully searched [DM] and noticed a solid object in the front left-hand pocket of his shorts; that was a lock knife. [DM] was arrested at 12.06 am and made no reply to caution; he was taken to the police station arriving at about 12.45 am.

“7. Shortly after 1 am the police contacted the duty solicitor Mr Balhar Dhamrait of GT Stewart in order to provide [DM with] representation; Mr Dhamrait was admitted as a solicitor in 2004 and has 21 years’ experience in representing suspects in police stations. There was further contact about 7 am. Around 8 am PC Wearing provided pre-interview disclosure to Mr Dhamrait via e-mail; he had a telephone consultation with [DM] from 8.11–8.21 am, in which he advised to make no comment. Prior to the consultation Mr Dhamrait raised some queries to which PC Wearing responded at 8.16 am. Mr Dhamrait sent a further e-mail at 8.19 am to enquire whether ‘All options available by way of caution for both offenses [sic]?’. The officer did not respond to that e-mail but the issue was taken up in a telephone conversation.

“8. The conversation: when asked about the e-mail PC Wearing told Mr Dhamrait that her sergeant had authorised a caution for both allegations only on the basis that [DM] made admissions to both offences.

“9. PC Wearing then allowed Mr Dhamrait to have a further conference with [DM] via her laptop. He noted that PC Wearing confirmed in front of [DM] at 8.38 am that a caution had been authorised. Accordingly, in the private consultation, Mr Dhamrait's advice changed from no comment to making full admissions.

“10. [DM] was interviewed between 8.46 and 8.53 am, by officers Wearing and Harris, with Mr Dhamrait assisting him via Microsoft Teams. He said that [he] worked in construction. In relation to the knife, he accepted that it was his, that he did not have lawful authority to carry it and did not know that it was an offence to carry the knife. When asked why he had the knife he said, ‘I didn’t have any intent to do anything with it, I just had it in case’ and in response to whether it was for his own protection, ‘I was not willing to use it’ adding later, ‘Yes, with the knife I had no intention to harm anyone.’

“11. PS Robinson was the ERO [evidential review officer] who made recommendations for the method of prosecution. These were recorded on the custody record: at 9.51 am he noted that: ‘Having reviewed the evidence in this case I give authority to proceed by way of simple caution. I have discussed this case with the interviewing officer and I have reviewed the Director Guidance on charging. I am satisfied that I am able to make a decision in this case. DP was stopped as a passenger in a vehicle. He was found to be in possession of a small quantity of cannabis and a knife. In interview, he gives a full account with his solicitor present. He admits possession of the knife and to having the cannabis for his own personal use. I have confirmed that the DP is no trace on PNC and has never been arrested before. I have not been informed of any other relevant history. I have reviewed the gravity matrix and assess the score to be 3. DP to be offered a caution for possession of cannabis and a caution for possession of a bladed article.’

“12. PS Robinson communicated that decision to PC Wearing and she passed it on to the custody sergeant so that the cautions could be administered. The sergeant challenged the decision and PS Robinson was asked to reconsider. A further custody record entry by the [sic] PS Robinson at 10.20 am was identical apart from a score of 4 and a disposal by way of community resolution for possession of cannabis and charge for bladed article. There was no explanation in the entry for the change of position but he did send PC Wearing a WhatsApp message at 10.21 am stating ‘All done. Sorry, I was looking at the wrong document for the Gravity Matrix.’ [DM] was charged at 10.42 am.

“13. Mr Dhamrait was informed of that outcome by PC Wearing by e-mail at 11.02 am. He responded at 11.10 am expressing his surprise as there had been an assurance that there would be a caution.”'

The defendant made an application for a stay to the DJ. The 1st instance DJ determined that he did not have jurisdiction to consider the application (this was later held to be wrong). At paragraph 34, May J said:

'What appears clear from the above review of the authorities, however, is that magistrates will be competent to investigate and determine a wide range of circumstances falling into category 2 arising from, and bearing upon the fairness of, the domestic criminal process.'

There was potentially 1 exception to this - where a defendant is brought unlawfully to the country (see paragraph 33).

May J in Mansfield said, at paragraph 34:

'Turning to the case before us, it is clear that that jurisdiction will encompass instances where the police have given an assurance which is then withdrawn.'

As to whether the stay application for abuse of process, had merit, May J in Mansfield, under the heading 'Abuse—should the proceedings be stayed?', said, at paragraphs 35 onwards:

'35. In the light of the conflicting authorities and, in particular, the decisions in Nembhard [2009] EWHC 194 (Admin) and Woolls [2016] Crim LR 765, the district judge cannot be criticised for declining to determine the substantive issue, instead confining himself to making the findings of fact which are reproduced at para 7 above.

36. Neither party suggested that, in the event of our deciding the jurisdiction issue in the appellant's favour, the substantive issue should be remitted back to the district judge. The abuse jurisdiction is a concurrent one and accordingly we are able to decide it. We agreed that it would be convenient and expeditious for us to do so.

37. As regards abuse cases falling within category 1, where the accused cannot have a fair trial, proceedings will be stayed without more and no question of balancing competing interests will arise: see the case of Warren [2012] 1 AC 22, para 22 . However, where category 2 abuse is alleged, competing public interests may come into play. When the court is considering whether the circumstances are such as to offend the court's sense of justice and propriety, it will need to balance the public interest in ensuring that administrative errors or misconduct do not undermine public confidence in the administration of justice on the one hand with the public interest in ensuring that those accused of serious crime are properly tried on the evidence on the other.

38. The circumstances under which a breach of assurance might give rise to a stay on the grounds of abuse were discussed in R v Abu Hamza [2007] QB 659 which was an appeal against conviction in relation to multiple counts of soliciting murder. The defendant was an imam who had been arrested in 1999 in relation to a terrorist incident in Yemen. In the course of the police investigation into that incident they seized a number of items of property, including an encyclopaedia and recordings of speeches which the defendant had given at his mosque and elsewhere. The police retained this property for many months, after which they returned it, informing the defendant that no further action would be taken regarding the offences for which he had been arrested. Some years later the defendant was arrested and charged with offences of soliciting to murder arising from material contained in the items of property which had been seized and then returned. It was contended that proceedings were an abuse of process. His counsel submitted that, by returning the items after many months of holding them, the police had implicitly represented that they did not intend to proceed upon the contents.

39. After reviewing relevant authorities Lord Phillips CJ set out his view as to the necessary pre-conditions for the grant of a stay founded upon an alleged breach of assurance:

“These authorities suggest that it is not likely to constitute an abuse of process to proceed with a prosecution unless (i) there has been an unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted and (ii) that the defendant has acted on that representation to his detriment. Even then, if the facts come to light which were not known when the representation was made, these may justify proceeding with the prosecution despite the representation.” (At para 54.)

The court decided that, in the circumstances of that case, the criteria identified by Lord Phillips CJ had not been satisfied.

40. It was not contested that the conditions identified by Lord Phillips CJ in Abu Hamza were met in this case. But the matters which Lord Phillips CJ identified are no more than necessary pre-conditions before a court could find that there had been abuse. I do not read the passage from his judgment set out above as indicating that satisfaction of such conditions would in every case be sufficient to establish an abuse of process. Nor, despite authorities such as Dean [1993] QB 769 and H [2008] EWHC 506 (Admin), would I go so far as to say that every case of a reneged-upon promise made by police and acted upon by the defendant must necessarily result in criminal proceedings having to be stayed for abuse. Each case will depend upon its own facts; as my Lord, Stuart-Smith LJ, observed during argument, amongst the matters to be taken into account will be the seriousness of the underlying offence.

41. In this regard, as Mr Mably rightly identified, the carrying of a knife in public by a young person is a serious offence and a matter of great concern in the current climate. The degree of public concern about knives is such that mandatory minimum sentences have been introduced for second and subsequent offences (at section 315 of the Sentencing Code). To my mind this is the most significant feature weighing in the balance here.

42. It is right that the administrative error did not itself prompt the offending in the present case. As I see it, however, this adds nothing to the balancing exercise which we must undertake: it is clear on the authorities (Dean, H, Abu Hamza) that a promise made and acted upon is capable of amounting to an abuse, where the detrimental act(s) do not consist of the offence itself.

43. Nor do I regard the fact that the assurance was given by mistake, or that it was rectified later the same day, as influencing the matter one way or the other. I have no doubt that the giving of the assurance was a wholly unintentional mistake, nevertheless Sergeant Harris was the person responsible for making and conveying the charging decision at the time. Moreover, the correction did not happen until after the defendant had been interviewed and had made full admissions. It would have been a different matter if the position had been clarified before DM was interviewed, but it was not.

44. Lastly, I do not regard the detrimental effect of the assurance as in some way annulled or rendered nugatory by the fact that DM's admissions in interview would have been excluded from the evidence at any trial. If “detriment” is conceived of solely by reference to the defendant's position at trial this is no doubt correct, but in my view Mr Mably's submission was based upon an overly narrow conception of detriment: making admissions in interview may have much wider implications for a young defendant beyond the trial itself. Moreover, I agree with Ms Sikand that to focus exclusively on the impact upon any trial is to confuse category 1 and category 2 types of abuse. Fairness to the accused is the focus of category 1 abuse; category 2 looks more broadly at whether the court's sense of fairness and propriety is offended.

45. As I have indicated above, in my view the key circumstance telling against a stay here is the seriousness of the offence. Against this, in addition to the breach of promise given by the officer responsible for the charging decision is DM's agejust 18 when the car in which he was a passenger was stopped—together with the fact that he had no previous convictions or cautions. Weighing these factors in the balance I conclude that in the particular circumstances of this case the public interest in holding a state official to their promise outweighs the public interest in seeing that an offence, albeit in this case a serious one, is prosecuted. Had circumstances been different, for instance if there was a history of relevant offending, then the balance may have fallen out differently. As the courts have repeatedly emphasised, each case will depend upon its own facts.'

May J in Mansfield said, at paragraph 46 'The resulting order would quash the conviction and stay the proceedings.'