Abuse of Process application leads to abandoned proceedings

by the Prosecution at the Crown Court.

Nina Grahame KC submitted that a breach of the police promise to offer a conditional caution as an alternative to prosecution constituted a clear abuse of process in this case.

Several relevant authorities highlighted a fundamental principle :

“The fact that a promise had been 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” (H v Guildford Youth Court [2008] EWHC 506 (Admin))

Nina’s lay client B, a male in his 60s of positive good character, had been arrested for making/possession of indecent images of children. The small number of images and the fact that none were classified as Category A led the investigating officer to obtain an Inspector’s approval to offer a conditional caution to B should he admit the offences.

B proceeded to make full admissions in interview.

Preparation of the formalities regarding the conditions and notification requirements meant that the conditional caution could not be issued that day. Some 6 months later, B received a Notice of Intended Prosecution.

A detailed application to stay the subsequent crown court proceedings was lodged prior to the PTPH. In summary, Nina submitted:

• That B had been unequivocally told prior to making admissions that a conditional caution “would” be offered. That offer had been properly made, in full compliance with the statutory provisions (CJA 2003 ss.22 & 23), the SoS Code of Practice and the DPP Guidance (Conditional Cautioning: Adults).
• That the subsequent CPS decision to prosecute constituted a breach of promise, susceptible to an application to stay where both ‘limbs’ of abuse applied, namely where
  • it would not be possible for a defendant to have a fair trial;
  • it would be unfair for the defendant to be tried in the particular circumstances of the case.
• That the decision to prosecute had been taken in breach of the mandatory requirements of the DPP Guidance, Annex D : Procedure and the Code for Crown Prosecutors;
• That B had been prejudiced in several respects – he had waived his Article 6 right not to incriminate himself in relation to a criminal charge and his right to advance a positive case in relation to some or all of the images as part of a fairly obtained interview account. Further, he was now unable to give detailed consideration to potential (statutory) defences that might be advanced and had also voluntarily disclosed highly confidential personal details and agreed to these being explored and checked by the police.
• That no safeguards provided by the trial process (e.g. exclusion of the interview PACE s.76) could adequately remedy the prejudice.

The prosecution agreed to review their position prior to oral argument on the application, resulting in the issue of a conditional caution and a successful, unopposed defence application to dismiss the crown court proceedings.

Nina was instructed by James Macauley of ABR Solicitors, Leeds, whose excellent and careful work at the police station enabled this application to be successfully pursued.