England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		17th January 2008

1. LORD JUSTICE LATHAM: This is an appeal by way of case stated from a decision of the South Southeast Northumberland Magistrates' Court on 5th June 2007. They then stayed 17 informations brought by the Crown Prosecution Service against Mr Boyle as an abuse of process. The situation which gave rise to that decision was as follows.
2. The respondent, Mr Boyle, was originally charged with a single charge of indecent assault upon a female. The particulars identified it as a female under the age of 14 years but the offence date was particularised as being between 1975 and 1988. That reflected the fact that the complainant, who was the daughter of the respondent, had made a statement in which she said that she had suffered sexual abuse at the hands of her father, Mr Boyle, from the age of 4 years up to the age of 17 years. The respondent pleaded guilty to that single charge on 4th December 2006 and he was committed for sentence to the Crown Court when the magistrates had heard the background to the case.
3. He accordingly appeared on 25th January 2007 at the Crown Court. The judge was Openshaw J. When he heard the facts as outlined by the prosecution, he made it plain immediately that he considered that the count which was before him simply failed to reflect the criminality which was being charged and, because of the dates in question, created significant difficulties over his sentencing powers. Without wishing to go into the detail of the hearing, the judge indicated to the prosecution that he would like them to reconsider the decisions as to charging. It was accordingly adjourned, no sentence was passed on that occasion, the prosecution reconsidered the matter in the light of what the judge had said and as a consequence sought to bring 17 charges of indecent assault against the respondent to reflect the years over which the sexual abuse had occurred. That, in essence, was the background to the application to lay the informations, which was the subject of the hearing with which we are concerned.
4. It should be said that the respondent had, from the moment that he was first interviewed by the police, accepted that he had sexually abused his daughter, but he was clear that he only did so when she was between the ages of 7 and 14. He denied any sexual activity apart from touching her and requiring her to masturbate him, but there is no doubt that he had asserted that that was a full admission of his criminality.
5. The magistrates were asked, on his behalf, to stay the proceedings based upon those 17 further allegations of sexual abuse. On behalf of the respondent it was submitted that there had been no change in the circumstances which could justify the bringing of these further charges. The application had been stimulated by the intervention of the judge and there was no basis upon which the prosecution could properly be allowed to increase the court's sentencing powers in a situation such as this, where the position had been created by the prosecution's own deliberate choice as to the original charge.
6. The magistrates in a carefully composed case stated expressed their opinion in the following terms in paragraph 17:

"a. The introduction of the 17 additional charges was not stimulated by any altered facts, but was based on identical evidence, of which the prosecution were always aware. The institution of the proceedings could therefore only have been instigated by a recognition of the limited sentencing powers available within the existing charge. To prefer the additional charges, on the same evidence and legal premise, was, we feel, due to a desire to expose the defendant to additional penalties not otherwise available.

"b. In light of that, we believe that it would be unjust and oppressive to allow the prosecution to proceed.

"c. We did not hear of any special circumstances which would justify the continuation of the 17 charges on the basis of our belief in the reason for their institution in the first place.

"d. We discussed the prosecution's reference to possibility of a fair trial on the new charges. Whilst there is nothing to suggest that any trial would, of itself and in its processes be unfair, we cannot go beyond our view that the institution of the proceedings was in itself unjust and oppressive and an abuse of the court proceedings."

7. On behalf of the prosecution, Mr Moran submits that that decision was one to which no reasonable justices, properly directing themselves as to the law, could have come. He submits that as far as the additional charges were concerned, they were not precluded by any principle reflected in the cases analogous to cases of autrefois convict, and he distinguished the cases of the R v Beedie [1997] 2 Cr App Rep 167, and the R v Harlow Magistrates' Court ex p Farrell [2000] Crim LR 589. He submits in both those cases very different considerations arose. For example, in the case of Beedie that was a case where there had been a prosecution based upon, essentially, breaches of statutory requirements which had proceeded to trial and sentence and, on the subsequent death of the unfortunate victim, the matter was reopened on the basis of a more serious charge based upon that.
8. The court concluded that that indeed was a situation which produced injustice and unfairness. On behalf of the prosecution, Mr Moran accordingly submits that the court should have been concerned primarily with the overall interests of justice and included as a significant factor the powers of the court to sentence the respondent appropriately for such criminal activity as could be established against him. That was the concern of Openshaw J when he requested the prosecution to reconsider the charge that had been presented. He accordingly submits that the magistrates' decision simply failed to give any, or any adequate, regard to that important consideration, which reflects the public policy that the charges dealt with by the court should enable the court properly to deal with the criminality disclosed in the evidence put before it.
9. On behalf of the respondent, Mr Duff has essentially submitted that at the end of the day, where the prosecution have made a deliberate choice as to the charge that they consider appropriate in relation to the facts that they have uncovered, then the court should not subsequently permit it to effectively reverse what had been a decision made perhaps without full thought but nonetheless in a way which would redound to the disadvantage of the defendant in the case, particularly where the decision is essentially one which is intended to increase the sentencing powers of the court where there has been no change of circumstance which could properly justify the application. He submits in those circumstances that the opinion that the justices reached was an opinion which they were perfectly entitled to reach on the material before them and that we should not interfere with the exercise of discretion, which they undoubtedly had, to make the order that they did.
10. Whilst giving all due regard to the eloquent plea of Mr Duff in that regard, it seems to me that the magistrates clearly fell into error here. Proceedings should only be stayed for abuse of process in very exceptional circumstances, where it can properly be said that the consequence would be injustice, or where the circumstances giving rise to the proceedings in respect of which the application is made offend one's sense of justice overall. In my judgment the facts of this case fall nowhere near that category of case. The steps being taken by the prosecution were intended to give effect to the clear view of Openshaw J that the interests of justice were simply not met by the single charge which entitled him only to sentence the respondent on that one charge.
11. In my judgment, as I have indicated in argument, the intervention by Openshaw J was not only proper but is the intervention I would expect from a court in circumstances such as this so as to ensure that the court has the appropriate charges before it to enable it to impose the appropriate sentence in a particular case. It is obviously the prosecution's prerogative to decline to accept a judge's indication in such circumstances, but where the prosecution chooses to do so, it seems to me that to suggest that the consequence is an abuse of process is a conclusion which does not recognise what the judge was intending to indicate and does not properly reflect the interests of justice in the overall sense of the word.
12. This respondent will clearly be at risk of a substantially greater sentence than he would have been under the original charge, but that does not make it unjust that there should be the additional charges. He is not going to be exposed to any sentence other than the proper sentence that should be imposed for the offences which are established, be they simply on his admissions or on the basis of any trial of any issues in relation to those matters. In those circumstances it seems to me that the justices simply cannot have had proper regard to the matters that they had to have regard to when deciding the application as they did. I would accordingly allow this appeal and accordingly permit the 17 informations to be laid. There must be a consequential mandatory order that the magistrates proceed with those informations.
13. MR JUSTICE COOKE: I agree.