High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Director of Public Prosecutions for NI, In re [1999] NIQB 3; [1999] NI 106 (5th February, 1999)

CARE2755







Delivered:
5 February 1999

CARSWELL LCJ

1. In this application the Director of Public Prosecutions for Northern Ireland (the DPP) seeks judicial review of a decision of a magistrates' court sitting at Banbridge on 17 September 1998 whereby the deputy resident magistrate Mrs Sarah Creanor (the magistrate) refused to commit the respondent James Mills for trial and stayed the prosecution of the respondent on the ground of abuse of process because of the delay in bringing the case against him.

2. It was not open to the DPP to challenge the magistrate's decision by way of case stated, which we indicated in Re Molloy's Application [1998] NI 78 at page 86 was the appropriate procedure. Under Article 146(1) of the Magistrates' Courts (Northern Ireland) Order 1981 that course is open only in respect of summary proceedings, which by section 2(2) does not include a preliminary investigation or preliminary inquiry. The DPP therefore proceeded by way of an application for judicial review, relying on the authority of R v The Crown Court at Snaresbrook, ex parte the Director of the Serious Fraud Office (1998, unreported). The Divisional Court in that case expressed the view, with which we respectfully agree, that it is preferable that when the Crown wishes to challenge a decision staying proceedings for abuse of process it should do so by means of the inter partes process of judicial review rather than by seeking leave to present a voluntary bill, which is generally done ex parte.

3. The charges brought against the respondent consisted of (a) three charges of fraudulent evasion or attempted evasion of duty chargeable on quantities of hydrocarbon oil, in common parlance smuggling tanker loads of derv fuel from the Republic of Ireland into Northern Ireland (b) two charges of mixing rebated and non-rebated fuels, that is to say, mixing kerosene (a low-duty fuel used for heating) in with derv (used to power road vehicles, on which a higher rate of duty is payable) and selling the mixture as derv, which involves a loss of duty payable to HM Customs and Excise. It was claimed that the overall loss of duty was some [sterling]65,000.

4. The evidence contained in the committal papers was on its face strong. In the course of interview the respondent made a number of clear admissions that he had been involved in smuggling derv, importing it without paying duty. In respect of the fuel mixing charges there were tests showing consistent contamination by kerosene of the fuel in the respondent's tanks and delivery vehicles which purported to be derv.

5. There was substantial and regrettable delay in bringing the case on for trial. We were furnished with a chronology which showed that one smuggling offence was detected on 1 July 1995 and the respondent was first interviewed on that day. Further investigation took place which appeared to show other illegal importations involving substantial quantities of fuel. The respondent was further interviewed about these on 10 October 1995. Following this interview Customs officers investigated the respondent's activities between October 1995 and January 1996 in order to establish that he was, as they suspected, mixing kerosene with derv. He was again interviewed on 13 January 1996.

6. An investigation report was prepared by the Customs officer in charge of the case, with supporting documents, but was not completed until October 1996. It was forwarded to the DPP in November 1996, whereupon the case was allocated to a senior legal assistant. Directions to prosecute were not given until 21 July 1998 and proceedings were commenced by the service of a summons upon the respondent on 31 July 1998. The DPP accepted without reservation that the delay which occurred in the processing of this prosecution was unacceptable and unjustifiable. Mr RIM Morrison, an Assistant Director in the DPP's Department, so stated at paragraph 6 of the affidavit sworn by him in support of the present application. He went on to give an explanation of the causes of the delay, stemming partly from the illness and absence on maternity leave of the senior legal assistant, partly from the priority given in the Department to work on cases which had fixed time limits and partly from an administrative error in consequence of which the case was overlooked for some nine months. He accepted, however, that the delays could not be justified and that they were excessive and inexcusable and counsel for the DPP approached the case on this basis.

7. The matter first came before the court on a hearing for committal of the respondent for trial of the charges brought against him. As appears from the affidavit of Mr Patrick Crothers, an application was made on behalf of the respondent to the magistrate for an order staying the prosecution on the ground of delay. The magistrate heard some argument, then adjourned the proceedings to enable the DPP to provide information about the delays. The adjourned hearing took place on 17 September 1998, when both the respondent and the DPP were represented by counsel. In the course of argument each cited authorities on the topic to the magistrate. At the conclusion of the submissions she gave a brief extempore ruling, in which she ordered that the proceedings be stayed as an abuse of process on the ground of the delay and its effect upon the respondent.

8. The magistrate swore an affidavit in the present matter in which she set out the reasons for her decision. We quote the material parts in full:

"1. I am the Respondent in the above matter, being the Deputy Resident Magistrate who made the impugned decision.

2. I have read the affidavits grounding the application for judicial review herein.

3. Prior to the decision which I made I had considered my possible approach to the application and I had formed the provisional view that the application, made by counsel for the Defendant, was unlikely to succeed. I had formed this view because it was my understanding that such an application should only be granted where it was clear that the circumstances of the delay were likely to or might reasonably cause injustice to the Defendant.

4. At the hearing on 17 September 1998 a number of authorities was cited to me by counsel appearing before me. In particular, counsel for the Defendant opened to me and cited from the case of R v McLaughlin and others, a copy of which judgment has already been referred to herein. Counsel spent a considerable time going through the judgment in detail and read to me, while I had a copy of the judgment before me, lengthy portions of the judgment.

5. It was clear from the judgment that there were similarities between the circumstances of the instant case and the facts in the case of R v McLaughlin and others. The contents of the judgment persuaded me that it was not necessary to find that the delay had caused or was likely to cause injustice to the Defendant so as to permit me to make an order staying the proceedings.

6. I was very influenced by that judgment and, in particular, the portions on the penultimate page which read as follows:

'I am therefore satisfied that the concept of abuse of process entitles the court to consider a stay of proceedings when, by reason of delay, there has been an inordinate lapse of time between a defendant being returned on a Bill of Indictment and the hearing of the trial'.

and

'In addition, there is authority for the proposition that, without blame, if something has "gone wrong" with the system, and the defendant has not contributed to the problem, the court has the power to order a stay'.

and

'In short, I believe the question to be addressed is "has the delay inflicted unfairness on the defendants to an extent that the court, in furthering its role in protecting the system, and ensuring public confidence in the system, should stay the proceedings"?'

and

'What is or is not "so unfair" or "so wrong" will be for the court to determine on the individual facts and the circumstances of each case'.

9. In making my decision I applied that ruling and those observations of the learned Recorder to the facts and circumstances of the instant case.

7. I have read the contents of the Statement pursuant to Order 53 Rule 3 filed herein. In view of the matters set out above, and my careful consideration of the judgment in the McLaughlin case, I reject the statements contained therein. I contend that I applied the test formulated by the learned Recorder, and if I was wrong in the making of the impugned decision then any mistake made by me was brought about by my application of a judgment of the learned Recorder."

10. The grounds on which the DPP relied in support of this application are set out in extenso in the grounding statement, but as presented by Mr McCloskey they may be encapsulated in four brief propositions:

1. The magistrate applied an incorrect legal test in holding that it was not necessary for her to find that the delay had caused or was likely to cause any injustice to the respondent.

2. If the magistrate did adopt the correct test, she failed to apply the proper burden of proof.

3. The magistrate took into account an immaterial consideration and left out of account a number of material considerations.

4. Her decision to order a stay of the proceedings was unreasonable in the Wednesbury sense.

11. The acceptance by superior courts that magistrates' courts have a power to stay prosecutions on the ground of abuse of the process of the court and the delimiting of the extent of that power are developments of judge-made law of relatively recent origin. As recently as 1976 in DPP v Humphrys [1977] AC 1 at page 26 Viscount Dilhorne expressed doubt whether magistrates had such a jurisdiction, although Lord Morris had expressed a firm opinion in Connelly v DPP [1964] AC 1254 at page 1261 that they must be endowed with that power. By 1984, however, it had become clear that superior courts would recognise the jurisdiction of magistrates to stay proceedings for abuse of process. The history of this development was fully reviewed by Mann LJ in R v Telford Justices, ex parte Badhan [1991] 2 QB 78 at pages 82-6, when he traced it through R v Brentford Justices, ex parte Wong [1981] QB 445, R v Oxford City Justices, ex parte Smith (1982) 75 Cr App R 200 and R v Canterbury and St Augustine's Justices, ex parte Klisiak [1982] 398 to R v Derby Justices, ex parte Brooks (1984) 80 Cr App R 164. The correctness of the law developed within such a notably short time was affirmed after comprehensive consideration by a Divisional Court in Ex parte Badhan and then by the Court of Appeal in Attorney-General's Reference (No 1 of 1990) [1992] QB 630 and the House of Lords in R v Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 AC 42.

12. The present application turns upon the extent, not the existence, of the power to stay. It was submitted on behalf of the DPP that the extent is firmly limited to the categories specified in Ex parte Brooks and Attorney-General's Reference (No 1 of 1990). In R v Derby Justices, ex parte Brooks (1984) 80 Cr App R 164, a case of delay, the court accepted the validity of the proposition advanced by counsel that there is a distinction between two categories of case -

"those in which the prosecutor can be said to have manipulated or misused the rules of procedure and those in which there has been inordinate and inexcusable delay which has actually prejudiced the defendant."

13. Sir Roger Ormrod, who gave the judgment of the court, went on to say at pages 168-69:

"In our judgment, bearing in mind Viscount Dilhorne's warning in Director of Public Prosecutions v Humphrys (1976) 63 Cr App R 95, 107; [1977] AC 1, 26, that this power to stop a prosecution should only be used 'in most exceptional circumstances,' and Lord Lane CJ's similar observation in 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. It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable: for example, not due to the complexity of the inquiry and preparation of the prosecution case, or to the action of the defendant or his co-accused, or to genuine difficulty in effecting service. We doubt whether the other epithets which are sometimes used in relation to delay, such as 'unconscionable', 'inordinate', or 'oppressive', do more than add an emotive tone to an already sufficiently difficult problem.

The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution, for, as Lord Diplock said in Sang (1979) 69 Cr App R 282, 290; [1980] AC 402, 437:

'... the fairness of a trial ... is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted.'

14. It is, as Lord Diplock also said in that case (ibid)

'no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them.'

15. Or, we would add, in regard to the preparation of the case, unless this has prejudiced the defendant in the way we have indicated. If the delay is not shown to have prejudiced the defendant in this way, lengthy inquiries into the reasons for the delay should not be necessary."

In Attorney-General's Reference (No 1 of 1990) [1992] QB 630, also a case of delay, the points of law referred to the court were -

"The point of law referred for consideration by the court is: (i) whether proceedings upon indictment may be stayed on the grounds of prejudice resulting from delay in the institution of those proceedings even though that delay has not been occasioned by any fault on the part of the prosecution; (ii) if the answer to (i) above is in the affirmative, what is the degree of: (a) the likelihood and (b) the seriousness of any prejudice which is required to justify a stay of such proceedings."

16. The court agreed, not without reluctance and "to a limited extent", the concession made by counsel on behalf of the Attorney-General that the answer to the first question was a "qualified Yes". Lord Lane CJ went on at page 644 to give the court's opinion on the second question:

"In answer to the second question posed by the Attorney-General, no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind: first, the power of the judge at common law and under the Police and Criminal Evidence Act 1984 to regulate the admissibility of evidence; secondly, the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict."

17. It may be seen from these decisions that the jurisdiction is firmly rooted in the obligation of every court to give a fair trial to a defendant appearing before it. It was on their authority that we said in this court in Re Molloy's Application [1998] NI 78 at 85, in the context of the resort by the prosecution to a procedure that the defendant claimed to be unfair, that it was to be regarded as an abuse of the court "if, but only if, it operates to affect adversely the fairness of the trial".

18. The decision in Ex parte Bennett [1994] 1 AC 42 R v Horseferry Road Magistrates' Court forms another and quite separate strand in the jurisdiction to stay proceedings for abuse of process. It contains authority for the proposition that the courts have jurisdiction to grant a stay where a fair trial of the accused person could be held but it would constitute an abuse of process because of antecedent events to put him on trial. In that case the appellant, instead of being extradited by due process, had been brought to England by a subterfuge, the result of a conspiracy between Englsih and South African police, and on his arrival at Heathrow had been arrested, charged and committed for trial on fraud charges. The House of Lords regarded this action as a serious abuse of power and held that the concept of abuse of process should be extended to cover such behaviour. As Lord Griffiths expressed it at page 62 -

"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."

19. Mr Deeny QC on behalf of the respondent challenged the correctness of the statements of the law which we have quoted from Ex parte Brooks and Attorney-General's Reference (No 1 of 1990) and submitted, in reliance on other authorities, that the concept of unfairness was not so narrowly circumscribed and that the magistrate was correct in following the decision in R v McLaughlin.

In R v McLaughlin (1998, unreported) Judge Burgess, sitting in Londonderry Crown Court, gave a decision on applications to stay certain prosecutions on the ground of delay caused by what he termed "inefficiency". Counsel for the defendants did not seek to argue that the delay would result in the defendants not receiving a fair trial. The basis of the applications was rather that although there would not be an adverse effect on the conduct of the trials themselves, it nevertheless "would not be fair to allow the trials to proceed". Having examined some of the authorities, and relying in particular on R v Beckford [1996] 1 Cr App R 94 and Bell v DPP of Jamaica [1985] AC 937, the judge concluded:

"I am therefore satisfied that the concept of abuse of process entitles the Court to consider a stay of proceedings when, by reason of delay, there has been an inordinate lapse of time between a defendant being returned on a Bill of Indictment and the hearing of the trial. Whilst delay per se may have been determined by the courts as insufficient, a sense of unfairness or prejudice can be established if the court is satisfied that unreasonable and unfair anxiety and concern has been inflicted by the length of that delay - and it is not necessary for a defendant to prove 'some specific prejudice' to come within the court's power - see Lord Templeman in Bell at page 589."

20. It was this passage which was the major influence on the magistrate in the present case when she decided to order a stay.

R v Beckford was not a case of delay. The appellant was convicted of causing death by careless driving when under the influence of drink or drugs, following a car crash in which his passenger received fatal injuries. His application to stay the procedings was founded upon the fact that the car had as a result of an oversight by the police been destroyed before the appellant was charged, so removing the possibility that an expert could examine the vehicle on his behalf and substantiate his theory that the crash occurred because the steering lock had locked in a striaght ahead position. The trial judge rejected the application to stay the proceedings, and the trial went ahead. The appellant was convicted of the charge and his appeal was dismissed by the Court of Appeal on the ground that when the full facts were considered the absence of the car did not affect the fairness of the trial.

21. In the course of giving the judgment of the court Neill LJ examined the law relating to the staying of proceedings as an abuse of the process of the court. We shall set out in extenso the passage at pages 100-1 of his judgment in which he conducted this examinatin, for it shows the context of the remarks upon which Judge Burgess relied:

"It is not in dispute that in certain circumstances the court has power to stay a criminal prosecution. The question for consideration is whether such circumstances exist in the present case.

The constitutional principle which underlies the jurisdiction to stay proceedings is that the courts have the power and the duty to protect the law by protecting its own purposes and functions. In the words of Lord Devlin in Connelly v DPP (1964) 48 Cr App R 183; [1964] AC 1254, the courts have

'an inescapable duty to secure fair treatment for those who come or are brought before them.'

22. The jurisdiction to stay can be exercised in many different circumstances. Nevertheless two main strands can be detected in the authorities:

(a) Cases where the court concludes that the defendant cannot receive a fair trial;

(b) Cases where the court concludes that it would be unfair for the defendant to be tried.

23. In some cases of course the two categories may overlap.

24. A useful statement of the law, which covers part of the ground, is to be found in the judgment of Sir Roger Ormrod in Derby Crown Court, ex p Brooks (1985) 80 Cr App R 164, 168, 169, where he said:

'The power to stop a prosecution arises only when it is an abuse of the process of the court. It may be an abuse of process if either:

(a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or;

(b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable ... The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution ...'

25. It is now clear, however, that the power to ensure that there should be a fair trial according to law does not exhaust the jurisdiction. Thus in R v Horseferry Road Magistrates Court ex p Bennett (1994) 98 Cr App R 114, [1994] AC 42, the House of Lords held that the court had jurisdiction to inquire into the circumstances under which a person appearing before the court had been brought within the jurisdiction and, if satisfied that there had been a disregard of extradition procedures, to stay the prosecution as an abuse of process."

26. Neill LJ then went on to quote from Lord Griffiths' speech in Ex parte Bennett and to consider other examples of situations where promises had been broken, in which cases the courts had held that although the trials themselves could be fairly conducted it would be unfair to put the defendants on trial at all. It seems to us clear from our examination of this part of Neill LJ's judgment that his strand (b) was intended to refer to the Bennett type of case and that he did not intend to define a third category of case in which a stay could be ordered, as Judge Burgess appears to have assumed. The judgment in R v Beckford is accordingly not in our opinion authority for the proposition attributed to it by the judge in R v McLaughlin.

27. Mr Deeny submitted, however, that the decision in R v McLaughlin and that of the magistrate in the present case were justified by three Privy Council cases, two of which were decided since Ex parte Brooks and Attorney-General's Reference (No 1 of 1990). In the first, Bell v Director of Public Prosecutions [1985] AC 937 the appellant claimed that the delay in bringing him to trial constituted a breach of his constitutional right under s 20(1) of the Constitution of Jamaica to "a fair hearing within a reasonable time". Lord Templeman, giving the decision of the Board, said at page 950D that their Lordships did not accept that a remedy could only be granted if the accused proved some specific prejudice and at page 951A that a court -

"may be satisfied that the rights of the accused provided by s 20(1) have been infringed though he is unable to point to any specific prejudice."

28. It was suggested in argument before us that this statement is relevant only in the context of a written constitutional guarantee of a trial within a reasonable time, whereby different criteria may be imported from those of the common law, which bases the jurisdiction on considerations of ensuring a fair trial. Mr Deeny pointed out, however, that at page 953A Lord Templeman, after considering the four factors considered relevant in Barker v Wingo (1972) 407 US 514, a decision of the US Supreme Court, expressed the Board's view that the same or similar criteria should be applied to any constitution, written or unwritten, which protects an accused from oppression by delay in criminal proceedings. He submitted that this was a clear indication that the Privy Council would not have agreed with the proposition that the accused must discharge the burden of proving some specific prejudice.

29. The Privy Council had occasion again to consider the issue of staying proceedings for delay in two cases from Hong Kong. In Tan v Cameron [1992] 2 AC 205 considerable delay had taken place before the appellant's trial on charges of bribery came to trial. His application for a stay was refused and his appeal was dismissed. The Privy Council rejected the appellant's appeal, on the ground that the district judge who had refused the stay had taken into account the correct factors. In considering the applicable law, Lord Mustill, who gave the opinion of the Board, expressed approval of the decision of the Court of Appeal in Attorney-General's Reference (No 1 of 1990), except in one respect, which concerned the burden of proof. He stated at page 225:

"Naturally, the longer the delay the more likely it will be that the prosecution is at fault, and that the delay has caused prejudice to the defendant; and the less that the prosecution has to offer by explanation, the more easily can fault be inferred. But the establishment of these facts is only one step on the way to a consideration of whether, in all the circumstances, the situation created by the delay is such as to make it an unfair employment of the powers of the court any longer to hold the defendant to account. This is a question to be considered in the round, and nothing is gained by the introduction of shifting burdens of proof, which serves only to break down into formal steps what is in reality a single appreciation of what is or is not unfair."

30. This proposition was accepted as correct in the other Privy Council case, Attorney-General of Hong Kong v Cheung Wai-bun [1994] 1 AC 1. We for our part respectfully accept its correctness as a qualification of the statements of the law which we have cited from Ex parte Brooks and Attorney-General's Reference (No 1 of 1990). It is worth noting that it accords with the statement in our Court of Appeal in R v Dougan (1985, unreported) that in considering the issue whether a police officer has reasonable grounds for believing certain matters on the strength of which he can delay access to a solicitor it is not appropriate to regard it as a case for the application of a burden of proof. We also accept the proposition, which is supported by a number of the authorities, that the court may infer the existence of prejudice (as it does at times in staying civil actions for want of prosecution), although no specific prejudice has been proved to have occurred.

31. Our conclusion from our examination of these authorities is that there are only two main strands or categories of cases of abuse of process:

(a) those where the court concludes that because of delay or some factor such as manipulation of the prosecution process the fairness of the trial will or may be adversely affected (we regard these words, which were used in Re Molloy's Application, as the appropriate formulation of the criterion);

(b) those, like Ex parte Bennett, where by reason of some antecedent matters the court concludes that although the defendant could receive a fair trial it would be an abuse of process to put him on trial at all.

32. We do not consider that there is a third category of generalised unfairness such as that accepted in R v McLaughlin. In our opinion that decision was incorrect, and the magistrate was in error in basing her decision upon it.

33. It was argued on behalf of the respondent that even if the magistrate had applied the right test she ought to have concluded that there had been an abuse of process and granted a stay, and that accordingly this court should in the exercise of its discretion decline to quash her decision. Mr Deeny submitted that the possibility of prejudice existed, in that the respondent, as appears from his affidavit, could not remember enough about the transactions to be able to provide any explanation which might account for them, or enough about the details of the interviews to be able to challenge the correctness of the procedure adopted. We very much doubt if any prejudice to the fairness of the trial could arise from such shadowy possibilities of mounting a defence. The courts have constantly been enjoined to bear several factors in mind when considering an application for a stay:

1. The jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons: Ex parte Bennett [1994] 1 AC 42 at page 74, per Lord Lowry.

2. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court's disapproval of official conduct: ibid.

3. The element of possible prejudice may depend on the nature of the issues and the evidence against the defendant. If it is a strong case, and a fortiori if he has admitted the offences, there may be little or no prejudice: see Ex parte Brooks (1984) 80 Cr App R 164 at page 169, per Sir Roger Ormrod.

34. It seems to us very difficult to say that the magistrate would have stayed the proceedings if she had applied the correct test and borne these factors in mind. Indeed, it appears fairly clearly from paragraphs 2 and 5 of her affidavit that she would not have done so, because she did not consider that the delay had caused or would cause any injustice to the respondent. We therefore do not consider that it is an appropriate case in which to exercise our discretion to refuse to make an order of certiorari.

35. For the reasons which we have given we propose to accede to the DPP's application for judicial review of the magistrate's decision to stay the proceedings. We shall quash the decision and remove the stay which she imposed.

JUDGMENT

OF

CARSWELL LCJ

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