When is a stay not a stay? [R v B]
[February 8, 2002]
There are numerous cases which consider what must now be regarded as well established grounds upon which a criminal prosecution can be stayed as an abuse process. There has however been few cases on the legal effect of a Judge's decision to stay criminal proceedings on abuse grounds. Recently, in R v B (and others) detailed consideration was given to the whether the Crown Court had power to resurrect proceedings after the trial was stayed as an abuse.
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This deals with the essentials of R v B in relation to the stay of criminal proceedings.
The prosecution's case for lifting the stay is summarised in the second section, along with the defence's arguments against reviving the prosecution.
The prosecution's case for lifting the stay is summarised in the second section, along with the defence's arguments against reviving the prosecution.
The Defendant was charged along with five others with offences arising from an alleged phoenix VAT fraud over a number of years; contrary to s 72(8) VAT Act 1984. As the date for trial approached the Judge became increasingly frustrated at the failure of the prosecution to comply with a number of Court Orders relating to disclosure of various documents to the defence teams. He decided to take the exceptional step in criminal proceedings of making an unless order, namely, that unless the requested documents where served on the defence by 16th July 2001, the prosecution would be stayed as an abuse of process. It was expressly stated within the terms of the Order that the prosecution had liberty to remove any stay in the event of a failure to provide the documents.
Notwithstanding the prosecution's best efforts, they failed to comply with the unless order. This meant that the case was automatically stayed as an abuse of process. The defendants where therefore discharged. It was at this point that the proceedings took an unprecedented turn as the prosecution then applied to have the stay lifted as they had subsequently complied with the Order. This focused consideration on whether the court had the power to lift the stay and effectively reinstate the proceedings after they had been stopped as an abuse of the court process.
It was readily conceded on behalf of the prosecution that there was no authority which directly supported the contention that the court could lift a stay. They relied however on the case of R v. Khatkar (unreported) a decision of the Recorder of London on 8th September 1998. This case concerned the not uncommon situation where a Defendant is too ill to be tried. The Learned Recorder ordered that the indictment lie on the file not to be proceeded with without the leave of the court or the Court of Appeal. Indeed, leave was subsequently given for the indictment to be proceeded with. The prosecution argued that there was no qualitative difference between this case and a case that stayed under the normal 'abuse of process grounds'.
Accepting the prosecution's argument the Judge concluded that no significance could be drawn from the absence of any reference to the courts power to lift a stay in the leading authorities of Connelly v. DPP [1964] AC 1254 and Attorney-General's Reference (No.1 of 1990) (1992) 95 Cr App R 296. In his view there would be have been no purpose imposing a leave qualification as in the majority of cases there was no possibility of remedying the cause of the abuse (as in the particular cases). The Judge however refused to grant leave to lift the stay, notwithstanding his conclusions because the Defendants had been discharged. Agreeing with Defence Counsel he held that once this had occurred the Crown Court was affectively functus officio and had no power to revive the prosecution.
It remains to be seen whether R v B reflects a new trend in jurisprudence in abuse of process cases. Until this case it was always taken as 'given' that once a prosecution was stayed on abuse grounds then it remained stayed. In this writer's view R v B is a significant departure from judicial precedent which may need to be clarified by the Appeal Courts in due course.
The likely grounds for an abuse of process case which will be affected are of course the ones where the defects are curable. A failure on the part of the prosecution to meet disclosure obligations immediately comes to mind; but what about circumstances where a prosecution is stayed due to adverse publicity?
Prosecuting authorities have been experiencing difficulties properly preparing complicated fraud cases with mountains of documents (see Radio 4's File on Four 30th October 2001 , contributed to by Don Mavin of WJB Chiltern our forensic tax investigator in the case of R v B). This may be as a result of resourcing difficulties which are now being looked at. HM Customs are also the subject of criticism and enquiry regarding the conduct of various diversion frauds which have been taxing the Appeal Courts of late. If the R v B approach is endorsed and the prosecution are able to re-open proceedings stayed as an abuse of process it will do nothing to encourage the prosecuting authorities to meet their statutory obligations once it is appreciated that any serious error where an abuse is found will only reduce the abuse hearing to a 'dress rehearsal' and may not be fatal to the prosecution. With proposals for abolishing the double jeopardy rule being very topical at present will the principles of re-opening cases be further extended with this ruling to cases stayed as an abuse of process? What of cases stayed on the basis of adverse publicity? It could be argued that the impact of adverse publicity will diminish with time and it would therefore be justified to re-open a previously stayed case.
It is to be hoped that the uncertainty that an extension of this ruling might import into our criminal jurisprudence should be avoided and that this first instance decision would not be generally followed. Although the result was very welcome for our client B in that he and his co-defendants did not have to face a trial; the uncertainty that this case has thrown up as to "when is a stay not a stay" can only be regretted.
Leon Daniel (Bankside Law Ltd.)
Leon Daniel (Bankside Law Ltd.)