Abuse of Process - not honouring representation that they will not prosecute

INTRODUCTION

In England and Wales, in what circumstances might a criminal court, stay criminal prosecution proceedings, on the basis that representations were made/assurances were given, that the defendant would not be prosecuted, for the offences they are now being prosecuted for.

This article will consider this question, in light of:

(1) Regina v Telford Justices, Ex parte Badhan [1991] 2 WLR 866 [1991] 2 QB 78 ('Badhan'), High Court (Divisional Court)(Mann LJ; Otton J; Watkins J) on 21.12.90; Mann LJ gave the judgment of the Court; 

(2) R v Bloomfield [1997] 1 Cr App R 135 ('Bloomfield'), Court of Appeal (Criminal) (Staughton LJ; Ian Kennedy J; Judge Crane) on 25.6.96; Staughton LJ gave the judgment of the Court; 

(3) R v Abu Hamza [2006] EWCA Crim 2918; [2007] QB 659 ('Abu Hamza'), Court of Appeal (Criminal) (Lord Phillips LCJ; Penry-Davey J; Pitchford J) on 28.11.06; Lord Phillips LCJ gave the judgment of the Court; 

(4) R. v Maxwell (Paul) [2010] UKSC 48 [2011] 1 WLR 1837 ('Maxwell'), Supreme Court (Lord Rodger JSC; Lord Brown JSC; Lord Mance JSC; Lord Collins JSC; Lord Dyson JSC) on 20.7.11;

(5) R v F [2011] EWCA Crim 1844 [2012] Q.B. 703 [2012] 2 WLR 1038 ('R v F'), Court of Appeal (Criminal) (Lord Judge LCJ; Hughes LJ; Goldring LJ; Ouseley J; Dobbs J) on 21.7.11; Lord Judge LCJ gave the judgment of the Court; 

(6) Ceredigion County Council v Robinson [2018] EWHC 2121 (Admin) ('Ceredigion'), High Court (Garnham J); no report of this case appears on Westlaw, Lexis Nexis, Bailii or National Archives;

(7) R. v Gripton (Patricia Ann) [2010] EWCA Crim 2260 ('Gripton'), Court of Appeal (Criminal) (Leveson LJ; Davis LJ; Lloyds Jones J) on 21.9.10; Lloyds Jones J gave the judgment of the Court;

(8) Regina v Scott (Keith) [2019] EWCA Crim 205; [2020] 4 WLR 2 ('Scott'), Court of Appeal (Criminal) (Hallett LJ, Lindblom LJ, Carr J) on 17.1.19; Hallett LJ gave the judgment of the Court; 

(9) R. v Jones (Sally Ann) [2021] EWCA Crim 1195; [2022] 1 Cr. App. R. 4 ('Jones'), Court of Appeal (Criminal) (Males LJ; Goose J; Judge Dhir QC) on 30.7.21; Males LJ gave the judgment of the Court;

SUMMARY 

Whether or not a prosecution is an abuse of process comes down to one question. As stated by Lloyd-Jones J in Gripton: 'The ultimate question will be whether to proceed with the prosecution would be an affront to justice.' (paragraph 28). This is question/test is at quite a high level of generality/abstraction. To assist, the Courts have recognised certain sets of circumstances, as likely to amount to an abuse of process. The list of set of circumstances is not exhaustive. This means there are no essential requirements, to establish that a prosecution is an abuse of process (other than that, that a prosecution would be an affront to justice). A case falling within, or indeed, outwith, a recognised set of circumstances, will not be determinative of whether or not proceeding with a prosecution will amount to an abuse of process. 

One type of circumstances, which seem likely to amount to an abuse of justice, is where a representation / assurance / undertaking or promise - some form of binding commitment is given (perhaps unequivocally), by a prosecuting body, that a prosecution will not be proceeded with. And then, perhaps after some detrimental reliance on that commitment by the defendant, the prosecuting body, reneges / resiles / withdraws from that commitment, and seeks to proceed with the prosecution. 

ANALYSIS 

Power 

In R v F, Lord Judge LCJ said, at paragraph 14:

'It is nowadays regarded as elementary that a general inherent power to protect the citizen from prosecutorial abuse of its processes is vested in the court.'

In Maxwell, Lord Dyson said, under the heading 'Retrials following prosecutorial misconduct', at paragraph 13:

'It is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will offend the court's sense of justice and propriety (per Lord Lowry in R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, 74 g) or will undermine public confidence in the criminal justice system and bring it into disrepute (per Lord Steyn in R v Latif [1996] 1 WLR 104, 112 f).'

Lord Dyson in Maxwell then said, at paragrah 13:

'In Latif at pp 112–113, Lord Steyn said that the law in relation to the second category of case was settled. As he put it:

“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: Reg v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42. Ex p Bennett was a case where a stay was appropriate because a defendant had been forcibly abducted and brought to this country to face trial in disregard of extradition laws. The speeches in Ex p 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. An infinite variety of cases could arise. General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that 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.”'

Later, Lord Dyson said 'Like Lord Brown JSC, I see no reason to depart from the settled law as expounded by Lord Steyn in R v Latif.' (Maxwell, paragraph 16). See further, Lord Brown in Maxwell, from paragraph 91[0])

Ultimate Question 

Since Maxwell, whether or not a prosecution is an abuse of process has been:

(1) rephrased (from 'contrary to the public interest in the integrity of the criminal justice system'); and

(2) condensed into one question (test); labelled the 'ultimate question': '...whether to proceed with the prosecution would be an affront to justice.' (Gripton, paragraph 28; Scott, paragraph 74).

This is the only question/test that determines whether or not a set of circumstances is or is not an abuse of process in criminal proceedings. It is essential that readers remember this when reading this article and the authorities. This question ('...whether to proceed with the prosecution would be an affront to justice') however, is at quite a high level of abstraction. To assist with the more day to day application of this test, the Courts have developed categories of circumstances, which are readily recognised as likely to amount to prosecution proceedings amounting to an abuse of process. These categories of circumstances, are convenient to use, but coming within, or outwith, a recognised category of circumstances, is not determinative of whether or not there will be a finding of abuse of process. It is instructive only. 

To put this another way, there is no requirement that is indispensable, in order for the test of 'affront to justice' to be satisfied. The only test/question, is whether the circumstances amount 'an affront to justice'.

The rational for providing a test that is not more detailed than 'affront to justice' is that:

'...the courts are here concerned with considerations of fairness and they must be free to respond to the circumstances of each case.' (Gripton, paragraph 27; affirmed in Scott, at paragraph 74)

Shortly, this article will turn to the approaches taken in Broomfield and Abu Hamza, but it was made clear that these authorities did not set down an comprehensive binding rules. 

In Gripton, Lloyds Jones J said, at paragraph 27:

'...so far as the approaches propounded in Bloomfield and Abu Hamza are concerned, we note that neither was intended by the court adopting it to be a comprehensive binding rule. In Bloomfield Staughton LJ expressly stated that the court was not seeking to establish any precedent or any general principle in regard to abuse of process. Similarly in Abu Hamza Lord Phillips CJ emphasised the difficulties of propounding a test of abuse of process, and the formulation adopted in that case is expressed in terms that conduct would be unlikely to constitute an abuse of process unless certain criteria were satisfied. He was certainly not laying down requirements which would be indispensable in any case. The reason for this is clear: the courts are here concerned with considerations of fairness and they must be free to respond to the circumstances of each case.'

Circumstances weighed against usual public interest in prosecuting those suspect of committing crimes

A important point to bear in mind, is that:

'...it is usually in the public interest that those who are reasonably suspected of criminal conduct should be brought to trial. Only in rare circumstances will it be offensive to justice to give effect to this public interest.' (Abu Hamza, paragraph 50)

Indicative Circumstances 

As stated, the test is always 'whether to proceed with the prosecution would be an affront to justice', but the authorities have identified indicative circumstances - circumstances likely to be found to render proceeding with the prosecution, an affront to justice.

An obvious circumstance will be where there has been delay (see R v F). Another set of circumstances, which may render proceeding with the prosecution, an affront to justice, is where the following circumstances arise:

(a) a representation / assurance / statement / promise[1] (some kind of binding commitment), has been made to the defendant, by the prosecuting authority, that the defendant will not be prosecuted (the defendant will be immune from criminal prosecution);

(b) the defendant has relied upon that representation / assurance / statement / promise (as the case maybe), to their detriment; and then

(c) the prosecuting authority resile/renege on that representation / assurance / statement / promise (as the case maybe) (i.e. seek to withdraw / retract / revoke the representation), and

(d) seeks to pursue / proceed with the prosecution, notwithstanding/regardless. 

Each of the above can be labelled an 'ingredient'.

None of these ingredients are strictly speaking mandatory here, but ingredient (b) has been identified as more readily not always required for this set of circumstances to amount to an abuse of process. Indeed, in Gripton, the defendant had not detrimentally relied upon the representation (see Gripton, paragraph 30), yet the Court could have found that proceeding with the prosecution would have been an abuse of process (on the facts, proceeding with the prosecution was actually found not to be an abuse of process (Gripton, paragraph 30), but does not diminish the point). 

Inevitably, those familiar with the civil law doctrine of estoppel by representation will be considering the similarity between the above ingredients, and those in the doctrine of estoppel by representation (though, it is added, the doctrine - the concept of estoppel itself, has no place in criminal proceedings[2].

[1] Broomfield 

In Broomfield, Mr Broomfield (the defendant ('B')) was charged with (simple) possession of drugs. As explained by Lloyds Jones J in Gripton, at paragraphs 21 to 23:

'At the plea and directions hearing in the Crown Court the prosecuting counsel approached the defence counsel and indicated that the Crown wished to offer no evidence against the defendant because it was accepted that he had been a victim of a set up. The prosecuting counsel did not wish to take the step, however, of offering no evidence that day because of the presence of central persons in the public gallery.

Accordingly, it was suggested that if the plea and directions hearing could be adjourned to a later date no evidence would be offered at that later date. The judge was told in his room by counsel of what had been agreed. He agreed to that course and announced in court that the hearing would be adjourned. The defendant in that case was fully informed as to the decision of the Crown.

A month later the Crown Prosecution Service informed the defendant that it intended to continue the prosecution. The reason given was that counsel appearing at the earlier hearing had no authority to indicate that the Crown had offered no evidence. No other reason was given subsequently to the Court of Appeal as to why that decision was considered to be wrong.'[3]

B made an application to the Crown Court, for a stay of the prosecution, on the ground that proceeding with the prosecution was an abuse of process. The Crown Court rejected the stay application. B then pleaded guilty.

B appealed, and the Court of Appeal quashed B's conviction.

A preliminary issue was whether the Crown Court prosecuting counsel had had authority to make the representation he had (that the Crown wished to offer no evidence at an adjourned hearing). On this, the Court of Appeal in Broomfield, held that prosecuting counsel had ostensible authority to conduct the case in court, including giving indications as to the future conduct of the proceedings.

On the question of whether the circumstances, rendered proceeding with the prosecution, an abuse of process, Staughton LJ said, 

'Looking at the case in the round, it seems to us that this is an unusual and special situation. The decision to defer the trial on 20 December was taken for the benefit of the prosecution in order that they would not be embarrassed when it was said in court that no evidence was being offered. 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.

Of course the circumstances of each case have to be looked at carefully, and many other factors considered … We are not seeking to establish any precedent or any general principle in regard to abuse of process. We simply find that in the exceptional circumstances of this case an injustice was done to this Appellant.'

Commenting on Bloomfield, Lloyd Jones J in Gripton said, at paragraph 28:

'It is not difficult to see why, exceptionally, in the particular circumstances of Bloomfield, the court concluded that to continue with the prosecution would be an abuse of process, notwithstanding the absence of any detrimental reliance on the part of [B]. The ultimate question will be whether to proceed with the prosecution would be an affront to justice.'

[2] Abu Hamza

Abu Hamza involved 'very different circumstances' (Gripton, paragraph 25), to those in Broomfield. In Abu Hamza, one of the issues was: whether the defendant had been led by the police or the prosecuting authorities, expressly or impliedly, to believe he would not be prosecuted.

Phillips LCJ in Abu Hamza, at paragraphs 50 and 51, said:

'As the judge held, circumstances can exist where it will be an abuse of process to prosecute a man for conduct in respect of which he has given an assurance that no prosecution will be brought. It is by no means easy to define a test for those circumstances, other than to say that they must be such as to render the proposed prosecution an affront to justice. The judge expressed reservations as to the extent to which one can apply the common law principle of ‘legitimate expectation’ in this field, and we share those reservations. That principle usually applies to the expectation generated in respect of the exercise of an administrative discretion by or on behalf of the person whose duty it is to exercise that discretion. The duty to prosecute offenders cannot be treated as an administrative discretion, for it is usually in the public interest that those who are reasonably suspected of criminal conduct should be brought to trial. Only in rare circumstances will it be offensive to justice to give effect to this public interest.

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.'

Phillips LCJ then considered:

(1) R v Croydon Justices ex parte Dean [1994] 98 CAR 76

(2) R v Townsley, Dearsley and Bretscher [1997] 2 Crim App R 540

(3) R v Horseferry Road Magistrates' Courts, ex parte Bennett [1994] 1 AC 42,

before stating, at paragraph 54:

'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 facts come to light which were not known when the representation was made, these may justify proceeding with the prosecution despite the representation.'

[4] Ceredigion

In Ceredigion, the facts were similar to the Scott case (see below). 

'During discussions between a planning authority and a party in respect of whom there was an enforcement notice, the authority made two alleged representations: (1) an oral statement that if the respondent applied for planning permission “the whole lot would go, disappear” and (2) a written statement that “whilst the council do not propose to take any form of action in relation to the existing enforcement notices …”. The party elected to withdraw their appeal against the enforcement notice. After withdrawal, the planning authority prosecuted.' - Hallett LJ in Scott, at paragraph 43, summarising the facts in Ceredigion, as framed during submissions

Garnham J in Ceredigion found that:

'...even though the party had withdrawn their appeal following discussion with the local planning authority and had suffered substantial prejudice because of that withdrawal, the prosecution was not an abuse of process. The offer of “advice” by planning officers did not amount to an undertaking or representation upon which the respondents in that case were entitled to rely.' - Hallett LJ in Scott, at paragraph 43, summarising Garnham J in Ceredigion, as framed during submissions.

[5] Gripton 

In Gripton, the facts were somewhat complex. In short:

(1) on evening, the defendant Ms Gripton ('G') was in her flat with: (a) a female, labelled SA; and (b) a man, Mr Leqeti (amongst others). SA and Mr Leqeti left the flat together. Subsequently, SA alleged that Mr Leqeti thereafter raped her in an alleyway near to the flat.

(2) Mr Leqeti was subsequently arrested and charged. Leqeti's trial took place on 26.10.04 (the 'Trial').

(3) At the Trial, G gave evidence for the prosecution:

'Both in her witness statement and in her evidence at trial she stated that she could not recall seeing any physical contact in her flat between the complainant and Leqeti. This evidence was in accordance with the evidence given by the complainant, but contrary to the account given by Leqeti who asserted that there had been consensual kissing between himself and the complainant in the appellant's flat.' (paragraph 4) ('G's 1st Account')

Mr Leqeti was convicted. 

(4) 1 year later, G gave a further statement, wherein, G stated that G had, in the flat before the alleged rape, '...seen SA and [Mr Leqeti] kissing in her flat immediately prior to the alleged rape, and that SA had been “making advances” to [Mr Leqeti]. She stated that her original statement to the police had not been true in this regard.' (paragraph 5) ('G's 2nd Account')

(5) Mr Leqeti appealed on the basis of this fresh evidence. At the appeal hearing, G gave evidence in accordance with G's 2nd Account, acknowledging that when she gave her further statement (G's 2nd Account), her solicitor had warned her that she could get into trouble for it. 'She admitted that she had lied in her first statement and at court in order to help SA.' (paragraph 6) 

(6) The appeal was allowed and a retrial ordered (the 'Retrial'). At the Retrial in July 2008, G gave evidence for the defence, stating that SA and Mr Leqeti had been kissing in her flat prior to the alleged rape (paragraph 7). 

(7) what then happened is that, on 16.7.08 (paragraph 12):

'Following closing speeches, but prior to the summing-up, a juror asked a question through the court usher as to what the consequences would be if Leqeti were found not guilty. In particular, did it mean that the prosecution witnesses would be prosecuted for perjury, and if he was convicted would defence witnesses be prosecuted? The judge discussed the matter with counsel in the absence of the jury. The judge immediately indicated to counsel that he proposed simply to tell the jury that they should ignore the consequences of any verdict, they were a matter for the judge.

However prosecution counsel, Mr Linehan, volunteered the information to the judge that the answer to both questions was “No”. The judge indicated that he was still minded simply to tell the jury to ignore the consequences of their verdict. However, following a request by the defence, he, in due course, also told the jury that whatever their decision was nobody in the case would face other proceedings in another court on another day.' (paragraphs 8 and 9)

G was not present (nor represented) in the Crown Court during this exchange/event (paragraph 20)

(8) on 18.12.08, G was arrested for the offence of perjury (paragraph 11) and in 13.7.09, charged (paragraph 13)

(9) following arrest, G discovered what had occurred on 16.7.08 in the Retrial in the Crown Court (paragraph 20);

(9) G then made an application for a stay of the prosecution (paragraph 14), contending that, regardless of whether a fair trial might be possible, the circumstances rendered proceeding with the prosecution, an affront to justice. 

(10) at first instance, the Crown Court refused to stay the prosecution. The 1st instance judge considered that:

(a) any reasonable bystander would consider that the jury question had been an obvious reference to G;

(b) Mr Linehan's words at the Retrial were taken to mean that no one else involved in the case, including the G, would be charged with an offence. The G's position was clearly in prosecuting counsel's mind at the time. Any reasonable observer would have concluded that the representation had been made, that the words were clear, and that G, had she heard them, would have understood them to mean that she would not be prosecuted. The representation was unequivocal. The fact that the representation was made to a judge gave the case similarities to the case of Bloomfield, although the two cases could clearly be distinguished on other factual grounds.

(c) however, there was no detrimental reliance by G as a result of the representation. The 1st instance judge took the view that

'...there had been no evidence or any submission that [G] had said or done anything to her detriment as a result of the representation.' (paragraph 17)

That:

'[G] was now in the same position as she had been in 2005 when she made her second statement, as in 2006 when she gave evidence before the Court of Appeal, and in 2008 when she gave evidence at the retrial. She had known that she could get into trouble and that there would be potential consequences. There was no evidence that her position had been in any way harmed or altered as a result of the representation by Mr Linehan.

The judge considered that there was a clear public policy that an abuse of process argument should not normally succeed and matters that arose should be dealt with, if possible, as part of the trial process. There was a clear and defined public interest in prosecuting those who gave false and perjured evidence to juries. In the present circumstances the second limb of the test enunciated in Abu Hamza had not been met, ie the appellant had not acted to her detriment as a result of the representation, and therefore the case against the appellant should proceed.'

(11) On appeal:

(a) G accepted she had not acted to her detriment (paragraph 19);

(b) it was noted that no point was taken, on appeal or at 1st instance, as to Mr Linehan's authorty to make the representations he had (paragraph 26);

(c) Lloyd Jones J held that Mr Linehan's representation had been '...an unequivocal statement on behalf of the Crown that [G] would not be prosecuted for perjury' (paragraph 26);

(d) Lloyd Jones J made the point, set out above, that neither Bloomfield nor Abu Hamza sought to set down any comprehensive binding rule, not indispensable list of requirements for every case, on when proceeding with a prosecution would amount to an abuse of process (paragraph 27). 

At the heart of the appeal, was the question: 'whether in the absence of any detrimental reliance by [G] this prosecution was nevertheless an abuse of process.' (paragraph 30) Lloyd Jones J answered this in the negative (paragraph 30). 

Lloyd Jones J in Gripton considered the importance of 3 circumstances, at paragraph 30 

(i) 'We do not attach any particular significance to the fact that the representation was made in other proceedings and before [G] was charged with perjury.' however,

(ii) '...we do consider it highly significant that [G] was not aware of the representation until after she had been arrested for this offence. The representation was made in court in proceedings in which she had been a witness. She was not present when it was made, nor was it made in the presence of anyone representing her. Her understanding remained, no doubt, that she could be prosecuted for perjury. That remained her understanding until she was arrested.' 

(iii) '...the fact that the Crown's statement was made in public before the court is, of course, a matter of importance. It is clearly undesirable, and a matter of concern, that the Crown, having informed the court of its position, should change its stance on a matter of such importance in the absence of a good reason. We note that no reason appears to have been given at the time for the change of position, nor have we been provided with any information as to why the Crown did change its position in this case. However, in fairness to Mr Linehan we record that we have been told that he played no part in the Crown's change of position.'

Overall, Lloyd Jones J in Gripton held that, having regard to the particular circumstances of this case, permitting the perjury prosecution to proceed would not be an affront to justice (paragraph 32). The appeal failed. 

[6] Scott 

In Scott, Hallett LJ was able to make a few points. 

(1) the following argument was rejected - that absent evidence of an unequivocal undertaking not to prosecute, an application to stay the proceedings as an affront to justice could not succeed. Hallett LJ reasoned that 'The giving of such an undertaking is but one example of circumstances when it may be an abuse of the process to allow a case to proceed.' (paragraph 73) 'The examples given by the learned editors of Blackstone, including “tactical manipulation”... were not intended to be and are not exhaustive. The abuse of process jurisdiction is far wider than that...' (paragraph 73)

(2) The Court readily acknowledged that '...the hurdle for the individual making an application to stay proceedings is a high one. Stays should only be granted in exceptional circumstances.' (paragraph 73; see also paragraph 86)

(3) '...in deciding whether to grant a stay, the judge must assess all the circumstances of the case, not just one.' (paragraph 74)

(4) 'There are no essential requirements, for example an undertaking not to prosecute, for an abuse of process argument to succeed other than the fact the court is satisfied that to allow the prosecution to proceed would affront justice.' (paragraph 74)

(5) no authority shown to Court suggested otherwise than that Lloyd-Jones J in Gripton had been correct to say that there is no comprehensive binding rule as to when a stay may be granted (paragraph 74)

Hallett J said, at paragraph 74:

'As Lloyd-Jones J observed at the end of para 27: “The reason for this is clear: the courts are here concerned with considerations of fairness and they must be free to respond to the circumstances of each case.” Garnham J referred to this paragraph in his judgment in the Ceredigion case without any shadow of dissent. Any reliance on Garnham J’s judgment in support of the proposition that a solemn promise not to prosecute is always required to support an abuse argument under this heading is misplaced. Garnham J had before him a case stated in which he was bound to answer the questions posed for him by the District Judge. The principal question posed was whether the District Judge was entitled to find that the council in that case had made an unequivocal undertaking that the defendants would not be prosecuted. It was that question that he answered adversely to the defendants. He did not purport to, and could not, restrict the ambit of the abuse jurisdiction in the way suggested.'

On the facts in Scott, Hallett LJ, at paragraph 75 said:

'Thus, the very high burden on the defendants before [the 1st instance judge] was to establish that allowing the prosecution to proceed would amount to an affront to justice bearing in mind all the circumstances.'

An issue in Scott related to the source of the representation. In other words, who made the representation and their authority to make the representation on behalf of the body (a local planning authority ('WBC')) who then sought to prosecute Mr Scott (amongst others) for breach of a planning enforcement notice. The source of the representation feed into the (sole) test of whether or not, proceeding with a prosecution, in such circumstances, would be an affront. It had been appropriate for the 1st instance judge to take into account, in determining this, the (whole) body's course of conduct 'as a whole' (paragraph 81), including: (a) WBC's elected councillors discussions/negotiations with Mr Scott; (b) WBC's planning department own part in the discussions/negotiations (paragraph 79). Hallett LJ said, at paragraph 79:

'It is clear from all the material before us that the planning department of WBC were well aware of the involvement of the elected councillors and hopeful that the elected councillors would be able to negotiate a fair settlement. It ill lies in the mouth of WBC now to complain that the judge bore in mind all that was said and done by the councillors. Mr Scott was led to believe that they were acting with the support and authority of WBC and that Mr Kaiser would be responsible for the ultimate decision.'

(paragraph 81 - this also did not amount to a breach of the principles identified in R (Reprotech (Pebsham) Ltd) v East Sussex County Council [2002] UKHL 8; [2003] 1 WLR 348; see also, Scott, paragraph 90)

[7] Jones 

In Jones, the focus was on the need for evidence of detrimental reliance on the representation (assurance) that the defendant would not be prosecuted, if the defendant alleged that the defendant had indeed relied, to his detriment, upon the said representation (assurance). An issue also arose as to whether there had been an unequivocal representation that no criminal proceedings would be brought against the defendant Ms Jones ('J').

Under the heading 'Decision', Males LJ i Jones said, at paragraphs 37 and 38, 

'It is common ground that it may be an abuse of process to prosecute a defendant for conduct in respect of which he has been given an assurance that no prosecution will be brought. Whether this is so will depend on all the circumstances of the case, the question being whether they are such as to render the proposed prosecution an affront to justice. The relevant case law was reviewed by this court in R. v Abu Hamza [2006] EWCA Crim 2918; [2007] 1 Cr. App. R. 27; [2007] Q.B. 659. Giving the judgment of the court, Lord Phillips of Worth Matravers CJ said:

“50. As the judge held, circumstances can exist where it will be an abuse of process to prosecute a man for conduct in respect of which he has been given an assurance that no prosecution will be brought. It is by no means easy to define a test for those circumstances, other than to say that they must be such as to render the proposed prosecution an affront to justice. The judge expressed reservations as to the extent to which one can apply the common law principle of ‘legitimate expectation’ in this field, and we share those reservations. That principle usually applies to the expectation generated in respect of the exercise of an administrative discretion by or on behalf of the person whose duty it is to exercise that discretion. The duty to prosecute offenders cannot be treated as an administrative discretion, for it is usually in the public interest that those who are reasonably suspected of criminal conduct should be brought to trial. Only in rare circumstances will it be offensive to justice to give effect to this public interest.

51. 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 (1994) 98 Cr. App. R. 76, 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 this court described as ‘quite exceptional’, it was held to be an abuse of process subsequently to prosecute him.

52. In R v Townsend, Dearsley and Bretscher [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) 98 Cr. App. R. 114 at 135; [1994] AC 42 at p. 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.’

53. 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.

54. These authorities suggest that 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 facts come to light which were not known when the representation was made, these may justify proceeding with the prosecution despite the representation.”

When a question arises whether a defendant to whom an assurance of immunity from prosecution has been given has acted on that assurance to his or her detriment, that fact will need to be proved by evidence. Sometimes the facts will speak for themselves, as in the cases cited where the defendant cooperated with the police or prosecution authorities by providing information which also implicated himself. In such cases the court will be entitled to infer that he did so as a result of the assurance given. In other cases the facts may be more equivocal or, considered objectively, may suggest that any assurance had no effect on the conduct of the defendant. In such cases detrimental reliance will not be obvious and may only be capable of being proved if the defendant gives persuasive evidence.'

Making the point about the need for evidence of detrimental reliance, Males LJ in Jones said, at paragraph 38:

'When a question arises whether a defendant to whom an assurance of immunity from prosecution has been given has acted on that assurance to his or her detriment, that fact will need to be proved by evidence. Sometimes the facts will speak for themselves, as in the cases cited where the defendant cooperated with the police or prosecution authorities by providing information which also implicated himself. In such cases the court will be entitled to infer that he did so as a result of the assurance given. In other cases the facts may be more equivocal or, considered objectively, may suggest that any assurance had no effect on the conduct of the defendant. In such cases detrimental reliance will not be obvious and may only be capable of being proved if the defendant gives persuasive evidence.'

On the facts in Jones, the Court found that:

(1) detrimental reliance was not shown; and also, 

(2) there had not been an unequivocal representation, and it did not cover criminal proceedings in any event. The relevant representation had only related to civil proceedings. 

In respect to the need for an unequivocal representation, Males LJ, after considering the wording of (settlement) document, said to contain the representation that no criminal prosecution will be brought, said, at paragraph 43:

'...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'

The details are set out in a footnote[4]. 

Procedure - timing

In R v F, Lord Judge LCJ was dealing with an application to stay a prosecution on the basis that a fair trial would be impossible, because of incurable prejudice to the defendant caused by delay. That is not the same as an application for a stay on the basis of a prosecution reneging on a representation it would not proceed with a prosecution. However, it is instructive that Lord Judge LCJ, in R v F, while stating it was a matter for the trial judge and he did not propose to be prescriptive, said (under the heading 'When to rule on an application to stay') that '...unless there is a specific reason for deferment, an application to stay on abuse of process grounds is preliminary to the trial, and ought normally to be dealt with at the outset.' (paragraph 45). At paragraph 48(v) of R v F, Lord Judge LCJ was stated:

'An application to stay for abuse of process ought ordinarily to be heard and determined at the outset of the case, and before the evidence is heard, unless there is a specific reason to defer it because the question of prejudice and fair trial can better be determined at a later stage: see paras 43–45.'

Procedure - court 

It is clear that both the Crown Court and the Magistrates Court has the power to stay proceedings on the basis they are an abuse of process. For the Crown Court, see the authorities above. For the Magistrates Court, see Badhan, paragraph 6[5])

SIMON HILL © 2026*

BARRISTER 

33 BEDFORD ROW

Simon Hill practices in the following areas: insolvency, company and business law, with some tax and property law.

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