England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		3 March 2008

MR JUSTICE SILBER:

1. H appeals with the leave of Wyn Williams J to quash a decision of the Guildford Youth Court made on 26 February 2007 to refuse to stay the prosecution of the claimant on the grounds that it was an abuse of process. 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.
2. An e-mail has been received from the Divisional Crown Prosecutor which shows that the Crown Prosecution Service do not contest the application to quash the conviction. The Youth Court have taken no part in these proceedings.
3. The facts which give rise to this application are that on 26 July 2006 the claimant, who was then 15 years of age, was alleged to have kicked a fellow school pupil in the jaw causing a fracture.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. The claimant appeared before the Guildford Youth Court on 16 November when the justices accepted jurisdiction. A not guilty plea was entered. At the pre-trial hearing on 14 December 2006 the trial was fixed for a three day period commencing 26 February 2007. It had been indicated that an abuse of process argument would be made on the first day of the trial. Indeed on the first day of the trial it was contended on behalf of the claimant 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.
10. After evidence had been given by both the claimant and the prosecution witnesses it was conceded by the prosecution 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.
11. 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.
12. The following day, on the advice of counsel, the claimant pleaded guilty to the offence on the basis of recklessness. He later commenced the present proceedings to quash the decision of the justices.
13. 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.
14. 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."

15. 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."

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.
17. In the light of these established principles I accede to the claimant's application. I quash the decision of the Guildford Youth Court made on 26 February 2007 refusing to stay the prosecution on the ground that it was an abuse of process. I do not know what order you would like me to make now?

MR BLACKMANN: I would ask the court additionally to quash the conviction entered thereafter.

MR JUSTICE SILBER: I think that must follow. What penalty was imposed?

MR BLACKMANN: He has completed a referral order of some nine months' duration and a certain amount of compensation order.

MR JUSTICE SILBER: That is all water under the bridge.

MR BLACKMANN: I would ask for legal aid taxation on the presentation of the Legal Services Commission certificate?

MR JUSTICE SILBER: Yes, I will order that. Thank you for your help.