England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		21 September 2010

1. LORD JUSTICE LEVESON: I will ask Lloyd Jones J to give the judgment of the court.
2. MR JUSTICE LLOYD JONES: On 3 December 2009, at the Crown Court at Shrewsbury sitting at Wolverhampton before HHJ Onions, the appellant pleaded guilty to one count of perjury and was sentenced to 52 weeks' imprisonment suspended for 18 months, with a 28-day curfew requirement. She now appeals against conviction by leave of the Single Judge.
3. This matter has a considerable history, to which it is necessary to refer in a little detail. On the evening of 23 February 2004 the appellant was at her flat in the company of friends, a female, to whom I shall refer to as SA, a man named Watasoni Leqeti and a second man. SA and Leqeti left the flat together. SA alleged that Leqeti thereafter raped her in an alleyway near to the flat. Leqeti was subsequently arrested and charged. Leqeti's trial took place on 26 October 2004.
4. The appellant gave evidence on behalf of 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.
5. Leqeti was convicted and sentenced to seven years' imprisonment. A year later, on 17 October 2005, the appellant gave a further statement to her solicitor in the presence of DC Wheel, the officer in the case of Leqeti. In the statement she said that she had seen SA and Leqeti kissing in her flat immediately prior to the alleged rape, and that SA had been "making advances" to Leqeti. She stated that her original statement to the police had not been true in this regard.
6. Leqeti lodged an appeal on the basis of this fresh evidence. The appeal was heard by the Full Court (Latham LJ, Gloster and Dobbs JJ) on 2 August 2006. The appellant gave evidence in accordance with her second witness statement at the hearing of the appeal. She said that she and SA had fallen out and argued since Leqeti's conviction. She said that her providing the second statement was a matter of conscience. She said that when providing her second statement she had been warned by her solicitor 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.
7. The appeal was allowed and a retrial ordered. The retrial eventually took place in July 2008 before HHJ Onions at Shrewsbury Crown Court. The appellant gave evidence for the defence and said that she had seen SA and Leqeti kissing in her flat prior to the alleged rape.
8. 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.
9. 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.
10. The result of the retrial was that Leqeti was once again convicted.
11. On 18 December 2008, the appellant was arrested by DC Wheel for the offence of perjury. The appellant's solicitor read out a prepared document setting out what had been said at the retrial of Leqeti by the judge, following discussion with prosecuting counsel, that nobody would face prosecution.
12. We have been told by Mr Grey, in the course of his submissions today, that at the start of that meeting the appellant's legal representative, who had also represented Leqeti at his second trial, made the point to the officer about the representation which had been made by the Crown in open court on 16 July. Thereafter the appellant was bailed on police bail and returned to the police station some seven or eight times, during which period no decision was taken by the Crown Prosecution Service as to how the matter should proceed until July 2009 when she was charged.
13. In interview she agreed that she provided two conflicting accounts and had since corrected her first account. She said that she had not changed her account in order to get her friend, Leqeti, out of jail. She said she knew that she could be in trouble for changing her account. On 13 July 2009 she was charged. There was an application by the defence to stay the indictment as an abuse of process.
14. The defence submitted that the conduct of the prosecution had to be such as to justify a stay, regardless of whether a fair trial might be possible. Relying on R v Bloomfield [1997] 1 Cr App R 135, it was submitted that for the prosecution to revoke a decision not to prosecute, the decision having been announced in the presence of a judge, would bring the administration of justice into dispute. It was irrelevant that the decision was not made in the appellant's presence, had not been communicated to her and had been made when she had not been charged.
15. The judge (again HHJ Onions who had conducted a retrial of Leqeti) ruled that whilst Bloomfield was still good law it had been reviewed, along with other authorities, in

R v Abu Hamza [2007] 1 Cr App R 27. Previous authorities had been confined to cases where the person who seeks a stay as an abuse was the actual defendant at the time the representation was made. In the judge's view any reasonable bystander would have considered that the question from the jury at the retrial of Leqeti was an obvious reference to the appellant, as she was the witness who was really under threat from a prosecution for perjury. This was clear both from her admission as to lies and from the nature of the cross-examination of her by Mr Linehan.

16. Mr Linehan's words at the retrial were taken to mean that no one else involved in the case, including the appellant, would be charged with an offence. The appellant's position was clearly in prosecuting counsel's mind at the time. Contrary to counsel's submissions, any reasonable observer would conclude that the representation had been made, that the words were clear, and that the appellant, 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.
17. However, in the judge's view there had been no evidence or any submission that the appellant had said or done anything to her detriment as a result of the representation. The appellant 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.
18. 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.
19. Before this court Mr Grey, on behalf of the appellant, submits, first, that it was an abuse of process of the court for the Crown to prosecute the appellant in the circumstances where an unequivocal representation had been given by the Crown to the Court that she would not be prosecuted, even though the appellant had not acted to her detriment. Secondly, he submits that the judge erred in ruling that it was necessary for the appellant to show that she had suffered prejudice or acted to her detriment. Thirdly, he submits that the judge erred in ruling that he was bound by the test in Abu Hamza. Fourthly, he submits that the judge failed to give any consideration to the fact that the present case could be distinguished from the position in Abu Hamza on the facts. Fifthly, he submits that the judge failed to give sufficient consideration to Bloomfield. Sixthly, he submits that the judge failed to give consideration to the effect on the administration of justice of the prosecution's revocation of the decision not to prosecute. The jury in the case of Leqeti, it is said, was entitled to rely on what it was told by the judge.
20. On behalf of the Crown Miss Lloyd-Nesling submits first, that the appellant would not have had a legitimate expectation that she would not be prosecuted. She had been warned when she first provided her further statement on 17 October 2005 that she could face prosecution. Further she was unaware of what had been said by the prosecution at the retrial of Leqeti, and by the judge during that retrial, as she had not been present or represented in court at the time. She only became aware of what had been said following her arrest. Secondly, Miss Lloyd-Nesling submits that the appellant had not acted to her detriment or been prejudiced in any way, and that that is a requirement of the test as set out in Abu Hamza. Moreover, there was nothing exceptional in the present case for the proceedings to be stayed as an abuse on the ground that it would be unfair for the appellant to try them.
21. In Bloomfield the appellant had been charged with possession of drugs. 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.
22. 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.
23. 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.
24. An application to stay on grounds of abuse of process was dismissed by the Crown Court and the defendant then pleaded guilty. On appeal this court quashed the conviction. This court considered that prosecuting counsel had ostensible authority to conduct the case in court, including giving indications as to the future conduct of the proceedings. Secondly, this court held that it was an abuse of process to proceed. The court said this:

"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."

25. Abu Hamza was concerned with very different circumstances. One of the issues there was whether the defendant had been led by the police or the prosecuting authorities, expressly or impliedly, to believe he would not be prosecuted. Lord Phillips CJ stated at paragraph 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 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."

The Court of Appeal then referred to R v Croydon Justices ex parte Dean [1994] 98 CAR 76, R v Townsley, Dearsley and Bretscher [1997] 2 Crim App R 540, and R v Horseferry Road Magistrates' Courts, ex parte Bennett [1994] 1 AC 42 and then referred to Bloomfield and continued 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."

26. In the present case, first, no point has been taken here or below as to the authority of Mr Linehan to make the statement he made on behalf of the Crown. Secondly, there can be no doubt that the statement by the prosecution in relation to future prosecutions was intended to relate to the position of this appellant, and was understood by everyone in court to do so. It was an unequivocal statement on behalf of the Crown that the appellant would not be prosecuted for perjury.
27. Thirdly, 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.
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 that appellant. The ultimate question will be whether to proceed with the prosecution would be an affront to justice.
29. Fourthly, turning, therefore, to the particular circumstances of this case, it is not suggested that this appellant did rely on Mr Linehan's representation to her detriment. As the judge pointed out, her decision did not change after she first admitted giving false evidence. It remained the same as in 2005 when she made her second statement, as in 2006 when she gave evidence before the Court of Appeal, and as in 2008 when she gave evidence at the retrial.
30. Fifthly, the question for us, therefore, is whether in the absence of any detrimental reliance by the appellant this prosecution was nevertheless an abuse of process. In our view it was not. We do not attach any particular significance to the fact that the representation was made in other proceedings and before the appellant was charged with perjury. However, we do consider it highly significant that the appellant 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.
31. Sixthly, 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.
32. However, notwithstanding this fact and having regard to the particular circumstances of this case, to which we have just referred, we are not persuaded that to permit these proceedings to continue would be an affront to justice.
33. Finally, we note that it is clear from the judge's very careful and thorough ruling that he had firmly in mind the fact that this appellant had had to live with the potential consequences of her decision since 2005 when she made her second statement. Those matters are matters which he very properly took into account in passing sentence.
34. I would add that the Sexual Offences Amendment Act 1992 makes it an offence to publish the name and address of the victim, or any matter which might lead to the identification of the victim of a sexual offence identified in that Act. The anonymity of the victim in the matter of Leqeti is protected by section 1 of that Act.

MR JUSTICE LLOYD JONES: Mr Grey, can I ask for your assistance on the point about the date? I understand that the charge was actually made on 13 July 2009; is that right?

MR GREY: Yes, she was charged on 13 July.

LORD JUSTICE LEVESON: That is the date that Mr Grey gave us.

MR JUSTICE LLOYD JONES: I wrote it down incorrectly as September. Thank you very much.

MISS LLOYD-NESLING: May I just say in relation to Mr Linehan, in the light of the observations of his Lordship about it being a matter of concern that the Crown changed its position, that the decision was made after obviously those representations that he made, and there is absolutely no criticism at all, as I understand it, not from the Crown's point, not from the defence, not from anyone, of Mr Linehan. The decision made to change the Crown's position was not a decision in which he had a part.

LORD JUSTICE LEVESON: Thank you.