Customs & Excise, R (on the application of) v Nottingham Magistrates' Court

A magistrates’ court has jurisdiction to stay committal proceedings for abuse of process where the alleged abuse directly affects the fairness of the particular defendant’s trial. The jurisdiction must be exercised sparingly. An abuse application is not a criminal trial and must be assessed in the round, bearing in mind the defendant’s burden of establishing unfairness. Mere possession of legally privileged material does not itself establish impropriety, prejudice or non-justiciability. A prosecution’s failure to explain possession may justify an inference only where the evidence first provides a proper basis for it. The stay was quashed and progression through the voluntary bill procedure directed.

Customs & Excise sought judicial review of District Judge Zara’s decision to stay proceedings against Timothy Theobald for conspiracy to defraud the public revenue. The stay followed discovery that Customs had possessed copies of a solicitor’s attendance note accepted to be legally privileged, together with derivative material.

The District Judge rejected allegations of deliberate impropriety, tainting of the prosecution team and failure to preserve evidence. He nevertheless held that prejudice had become non-justiciable because Customs had not explained how it obtained or used the material. The central issues were jurisdiction, procedure, evidential inferences and the rationality of the stay.

1. Jurisdiction. Applying R v Horseferry Road Magistrates’ Court ex parte Bennett [1994] 98 Cr App R 114, committing justices may control their proceedings through an abuse-of-process jurisdiction. The power is confined to matters directly affecting the fairness of the particular accused’s trial and must be exercised sparingly.
2. Procedure. An abuse hearing is not equivalent to a criminal trial. The court must assess what is fair in the round. There is no automatic right to a half-time submission after the applicant’s evidence. Customs remained free to call evidence but chose not to do so.
3. Evidence. The admission that Customs possessed, copied and returned the attendance note was neutral evidence. The District Judge was entitled to consider only evidence formally adduced. However, after finding insufficient evidence of impropriety, he acted inconsistently in treating Customs’ silence as supporting possible prejudice.
4. Non-justiciability. R v Sutherland and Others was materially different because it involved deliberate and flagrant police misconduct. It did not establish that possession of privileged material automatically makes prejudice non-justiciable or requires a stay. The overriding objective remains securing a fair trial.
5. Relief. The stay was quashed. Customs was directed to serve voluntary-bill papers within seven days, with 14 days for written observations by Mr Theobald. Any abuse application could be made before the Crown Court. No order was made on the renewed application concerning the alleged confession.

The Administrative Court quashed the District Judge’s stay and granted consequential relief through the voluntary bill procedure.