Young, Corker and Summers on Abuse of Process in Criminal Proceedings: Fifth edition

## Typeset by Evolution Design and Digital (Kent) To find out more about our authors and books visit www.bloomsburyprofessional.com. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters v I would like to fully acknowledge and hugely thank, for their considerable assistance in the updating of this fifth edition, the stellar team of barristers, and others, who contributed to the updating of this fifth edition. In addition to the barristers from Red Lion Chambers, I was fortunate to have Hugo Keith QC updating the Extradition chapter, Sarah Bafadhel updating her own international chapter, and, upon the excellent recommendation of Professor David Ormerod QC (Hon), Matthew Fielden from University College London, who took on the updating of the 'Abuse of power by the executive' chapter, and for his additional assistance on chapter six. From Red Lion Chambers I thank Riel Karmy-Jones QC for her work in updating the 'Delay' chapter (assisted by Tom Jones), Edmund Vickers QC, for his work in updating the 'Double Jeopardy' chapter, Aimee Reese for updating two chapters on 'Entrapment' and 'Miscellaneous abuse', Tom Davies for updating, with Hugo Keith QC, the 'Extradition' chapter, David Claxton for updating the 'Confiscation' chapter and Alex Benn for updating the 'loss or destruction of evidence' chapter. I also thank the pupils and Practice team at RLC for their continued support, and Helena Spector for her research work. Finally, I thank Kiran Goss and the publishing team at Bloomsbury Professional for their ever-patient and professional assistance in the finalization of this fifth edition, which is now some 22 years after David Corker (of Corker Binning Solicitors) and I wrote the first edition of this textbook. ## Contents Preface v Acknowledgements vii Table of Cases xix Table of Statutes lxiii Table of Statutory Instruments lxvii Table of European and International Agreements lxix Chapter 1 Delay xi Preface Acknowledgements Table of Cases Table of Statutes Table of Statutory Instruments Table of European and International Agreements Chapter 1 Delay Introduction The test of the common law Introduction Statutory measures The Cornerstone Case: Attorney-General’s Reference (No 1 of 1990) A-G’s Reference (No 2 of 2001) The Court of Appeal ruling The House of Lords ruling The settled law on delay The requisite content of a direction on delay ECHR jurisprudence Article 6(1): Right to be tried within a reasonable time The Strasbourg case law – criteria for determining reasonableness Evidence of prejudice The threshold of inordinate or excessive delay How is ‘reasonable time’ to be measured? Remedies for violation of Art 6(1) Conclusion Chapter 2 Breach of promise The promise Prejudice Promises not to prosecute Pre-Dean authorities R v Croydon Justices, ex p Dean Post-Dean authorities R v Abu Hamza R v Downey Promises to offer no evidence Promises on acceptable pleas Other promises Prosecution promises not to call a witness The prosecution code for ‘re-starting a prosecution’ Police cautions Crown divisibility Implied promises Concluding remarks Unfairness to the accused Unfairness in the public perception Unfairness from the judicial perspective Chapter 3 The loss or destruction of evidence Background Context The current state of the common law Mouat Ebrahim Analysis of Brooke LJ’s judgment Post-Ebrahim case law The historical development of the common law R v Sadridin R v Sofaer R v Sunderland Magistrates’ Court, ex p Z R v Birmingham R v Gajree R v Beckford R v Northard R v Reid R v McNamara R v PR Hamilton v Post Office Miscellaneous cases Criminal Procedure and Investigations Act 1996 Code of Practice The duty to obtain and/or retain material under the CPIA Code Relevant material Duty to ‘pursue all reasonable lines of inquiry’ The CPIA Code of Practice 1996 The Attorney-General’s Guidelines (2020) Third party material The position at common law E v E R v Hewitt R v Warren Lost evidence and hearsay The Protocol on Unused Material (2013) European Court of Human Rights Case Law Chapter 4 Miscellaneous abuse Proof of prejudice not required Statutory Time Limits Magistrates’ Court Act 1980, s 127 Expiry of limitation period Custody time limits Pre-interview disclosure Prosecutor’s improper motive R v Bow Street Metropolitan Stipendiary Magistrates, ex p South Coast Shipping R v Durham Magistrates Court, ex p Davies R v Gloucester Crown Court, ex p Jackman R v Milton Keynes Magistrates, ex p Roberts R v Adaway R (on the application of G) v S R (Wokingham Borough Council) v Scott D.Ltd v A1 Removal of right to a particular type of trial R v Rotherham Justices, ex p Brough R v Redbridge Justices and Fox, ex p Whitehouse R v Martin Removal of a potential defence Prosecution overcharging Disparity of treatment arguments Trial in absence of a co-accused Repeated committal proceedings The rule in Hunter Failure to conduct a fair interview Retrials Witnesses: contact with witnesses and duty to call witnesses Selective prosecution Non-disclosure abuse Non-disclosure and unfairness The CPIA 1996; prosecution failures to comply with their disclosure obligations The problems encountered Relevant ECHR jurisprudence Public Interest Immunity Patel and Early; misleading the judiciary and prosecution bad faith Abuse of process in cases involving victims of trafficking or modern slavery Chapter 5 Abuse of power by the executive General principles R v Maxwell Warren v the Attorney General of Jersey Secretary of State for the Home Department v CC R v CB R v Norman Disguised extradition The issues raised Pre-Bennett decisions regarding jurisdiction Ex parte Bennett Application of the Bennett abuse jurisdiction in cases of disguised extradition Pre-Bennett authorities Ex parte Bennett Post-Bennett authorities Article 5 ECHR Unlawful acts committed by UK state agents overseas R v McDonald The issues raised Unlawfully obtained evidence The ECtHR jurisprudence The common law Commission of criminal offences or unlawful conduct by investigators Pre-Latif cases R v Latif Post-Latif cases R v Grant Illegitimate funding of the prosecution Deprivation of foreign rights Chapter 6 Entrapment Introduction The right remedy; s 78 or abuse of process? Entrapment not a substantive defence Abuse of executive power ECtHR Jurisprudence What counts as entrapment? The difficulties of definition Rejected rationales for entrapment The active/passive distinction Providing an opportunity Random virtue-testing Predisposition The accepted rationale; reasonable suspicion The Looseley factors for entrapment Reasonable suspicion Supervision The nature and extent of state participation in the crime: necessity, proportionality and ‘unexceptional opportunity’ Post-Looseley case law Non-compliance with procedural requirements Non-authorisation Private or non-state entrapment Early authorities Recent case law Re Saluja R v TL Conclusions on private entrapment Entrapment as mitigation Chapter 7 Double jeopardy Autrefois acquit and convict The scope of the pleas as determined in Connelly Situations that do not form a basis for a plea of autrefois acquit or autrefois convict Proceedings before the Special Immigration Appeals Commission (‘SIAC’) Civil proceedings following acquittal in criminal proceedings Procedure on autrefois pleas Statutory exceptions to the autrefois rule: Criminal Justice Act 2003 Case stated Appeal to the Supreme Court Retrial following successful appeal against conviction Tainted acquittals Army Act 1955, s 33 Magistrates’ Courts Act 1980, s 27 Extradition Issue estoppel Authorities post-Connelly ‘Same activity’ cases Separate prosecutions by different prosecution agencies: Sequential trials and special circumstances Repeated committal proceedings cases Sequential trials in complex trials arising out of severance of the indictment Similar fact Double Jeopardy under European human rights law European Court of Human Rights (‘ECtHR’) authorities Other relevant international obligations Sentencing Chapter 8 Abuse in extradition proceedings Statutory protections against abuse Extraneous considerations Double jeopardy Passage of time Trials in absence Physical or mental health National Security Human rights Articles 2 & 3 of the ECHR Article 5 ECHR Article 6 ECHR Article 7 ECHR Article 8 ECHR PACE The role and powers of the Secretary of State The slow development of an abuse jurisdiction The impact of the Human Rights Act 1998 and Kashamu The position under the 2003 Act Jurisdiction finally established Procedure Stage 1: The conduct alleged to constitute the abuse being identified with particularity Stage 2: Consider whether the conduct, if established, is capable of amounting to an abuse of process The intrinsic limits of the jurisdiction The applicable threshold Not concerned with the prospective trial process Pre-2004 case law Case law under the 2003 Act Manipulation of the extradition machinery Conduct of UK authorities Disguised extradition: deportation and extradition Ulterior motive or purpose Non-disclosure as evidence of bad faith Prescribed particulars in the warrant are incorrect Extradition offence Actions of a third-party state ‘Stage 3’: Whether there are reasonable grounds for believing that such conduct may have occurred No right to disclosure at stage 3 ‘Stage 4’: The judge should not accede to the request for extradition unless he has satisfied himself that such abuse has not occurred The disclosure position at stage 4 Chapter 9 Adverse publicity Publicity and jury decision-making Contempt of court in the context of pre-trial publicity The use of the internet and social media Abuse of process Trust in the jury The risk of prejudice Proximity to trial – the fade factor A review of the case law R v Maxwell Post-Maxwell authorities R v Stone R v Ali (Ahmed) and others R v Abu Hamza Alternative to a stay – remedies to reduce the risk of prejudice Jurisprudence of the ECHR Chapter 10 Procedural considerations Introduction The Magistrates’ Court: Jurisdiction The legal context The general position The creation of a split jurisdiction in Bennett Problems arising from the split jurisdiction Post-Bennett authorities – widening of magistrates’ jurisdiction Significance of Watts Conclusions Sending cases under s 51 Summary trials Case stated and judicial review of the Magistrates’ Court Appeal by way of case stated Availability of case stated Judicial review Applications for judicial review The grounds for judicial review Approach of the High Court A procedural note Procedural tactics in summary cases Challenging interlocutory decisions by judicial review The Crown Court Appeals to the Crown Court Abuse of process applications in the Crown Court Challenging adverse rulings of the Crown Court Preparatory hearings and interlocutory appeals Decisions which do not relate to trial on indictment Appeals to the court of appeal against adverse rulings in the Crown Court Pre-1995 Act practice Post-1995 Act but pre-Mullen case law The decision in Mullen The approval of Mullen What is the effect of pleading guilty on an appeal to the Court of Appeal? Abuse of process as a novel ground of appeal Prosecution appeals to the Court of Appeal Retrials Where the Crown adopt a change of stance at the retrial Where the Court of Appeal orders a retrial Compensation in miscarriage cases The abuse of process hearing Rules of procedure The Protocol for the Control and Management of Heavy Fraud and other Complex Criminal Cases Timing of application Must the trial judge conduct an inquiry into an abuse submission? Voir dires No power to order disclosure Argument and giving of reasons Divisible indictments Defence evidence at sending hearings in the Magistrates’ courts Fairness to the prosecution Fairness to third parties Third party abuse The use of intermediaries Legal representation The burden of proof The standard of proof Judicial discretion in delay cases Presentation Chapter 11 Confiscation proceedings Introduction Proceeds of Crime Act 2002, Part 2 The ‘intention of Parliament’ The statutory assumptions Draconian but ECHR compliant? Confiscation and A1P1 Repayment by the defendant Abuse of process and confiscation? Chapter 12 Abuse of process doctrine in international criminal proceedings Introduction Ad hoc tribunals: International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda Applicable principles ICTY/ICTR fact patterns International Residual Mechanism for Criminal Tribunals Hybrid tribunals: special court for Sierra Leone; extraordinary chambers in the courts of Cambodia and the special tribunal for Lebanon SCSL ECCC STL International Criminal Court Applicable principles Conduct of national authorities Prosecutorial misconduct Obstacles to preparation of Defence Final remarks Appendix A The Code for Crown Prosecutors Appendix B Attorney General’s Guidelines on Disclosure for Investigators, Prosecutors and Defence Practitioners 2020 Appendix C Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice Appendix D Judicial Protocol on the Disclosure of Unused Material in Criminal Cases Index "Setting out the law relating to abuse of process in criminal law, it analyses the underlying issues and draws together the evolving case law on different aspects of abuse of process including delay, breach of promise, the destruction of evidence, non-disclosure, entrapment and extradition. In the last six years there has been a significant amount of new law relevant to the development of abuse of process in criminal proceedings under an evolving definition of abuse of process. - The new edition is fully updated throughout with new chapters and material on: - What is the current definition of an abuse of process? Reviews the evolution of the definition from the Beckford case, through the Maxwell and Warren decisions onto the Crawley and D v A authorities. - Lost Evidence Cases - evolving case law in relation to failures to follow reasonable lines of enquiry in the context of CPS and DPP guidance on investigations into communication evidence. - Non-Disclosure Abuse - probably the most common category of abuse which is argued. The media have recently reported on cases where there were significant disclosure failings by prosecutors leading to the termination of proceedings, but what are the factors judges should consider in deciding whether non-disclosure amounts to abuse of process? - Entrapment abuse - Abuse of process after conviction - is this possible? The authors argue that, given a key objective of the doctrine of abuse of process is to protect the integrity of the criminal justice system, the doctrine should also apply post-conviction. - Is abuse of process in historic sex abuse dead? - In PR v R [2019] EWCA Crim 1225, a Court led by Lord Justice Fulford (the new Vice-President of the CACD) declined to interfere with a trial judge's decision to allow a case of historic sex abuse to proceed, even though the time periods of delay were significant, and the loss of material substantial. - New section in the Procedure Chapter on the making of Abuse Applications in Regulatory Proceedings - Criminal Procedure Rules 2015 - International abuse of process cases from the international courts"-- Provided by publisher Setting out the whole spectrum of circumstances where abuse of process is litigated in criminal law, barrister David Young and his co-authors use their wealth of experience in the UK and international courts to identify and describe the many different strands of the abuse jurisdiction. The authors provide you with a thorough understanding of the different forms of abuse of process, in areas such as lost evidence, delay, abuse of executive power, entrapment, extradition, double jeopardy and breach of promise. Additionally, the new edition features the first published chapter on abuse of process in International criminal proceedings, for those working in international criminal law. This Fifth Edition is updated to include: - New case law on prosecution disclosure failings in the context of abuse of process, and the courts approach to unavailable evidence in R v PR, Hamilton v PO, and R v E - An Entrapment chapter analysing the Syed (Haroon) decision on ECHR jurisprudence post Looseley, and the potential for abuse of process in cases of private entrapment - Abuse of power by the Executive's key Norman decision which sets out the law comprehensively - The developing abuse case law on private prosecutions, reviewing cases where prosecutors may hold improper motives for bringing private prosecutions - Detailed analysis of the abuse jurisdiction in extradition proceedings in Jasvins v General Prosecutor's Office Latvia - New Guidance on challenging interlocutory decisions by judicial review in Parashar, and analysis of R v Asiedu on defence appeals following guilty pleas - The revised Attorney General's Guidelines on Disclosure 2020 and the CPIA Code of Practice