Hounsham & Ors, R v

A criminal prosecution may be stayed for abuse of process even where a fair trial remains possible, but only in exceptional circumstances. The defence must establish sufficiently serious misconduct by the prosecuting authorities.

Police solicitation or acceptance of funding from potential victims for a criminal investigation was ultra vires and liable to compromise public confidence in impartial policing. It did not, however, require a stay where the officers acted in good faith and no prejudice to the defendants was shown. Defective disclosure likewise did not justify a stay where the material emerged during the trial and no realistic prejudice from any unavailable material was identified. Whether to discharge a jury after inadvertent disclosure of previous convictions remains a discretionary assessment; an appropriate direction may cure slight prejudice.

The appellants were convicted at Portsmouth Crown Court of conspiracies to defraud arising from alleged staged road traffic collisions and false insurance claims. They appealed against conviction with leave of the single judge.

During the prosecution case, material emerged showing that three insurers had paid the investigating police officer sums towards the arrest phase of the investigation. The appellants sought a stay for abuse of process, relying on the unlawfulness of the funding and associated disclosure failures. Hounsham and Mayes also challenged the refusal to discharge the jury after two old and relatively minor convictions of Mayes were inadvertently included in the jury bundle.

The central issues were whether the funding and disclosure failures required a stay, and whether the jury could fairly continue after the inadvertent disclosure.

1. The appeals were dismissed. The court upheld the trial judge’s refusal to stay the indictment and, in the case of Hounsham and Mayes, his refusal to discharge the jury.

2. The court accepted the prosecution’s concession that the police had acted ultra vires in soliciting and accepting financial contributions from insurers towards the investigation. Read as a whole, the statutory scheme in the Police Act 1996 placed responsibility for the police force and its funds with the police authority. Funding an investigation through potential victims was dangerous because it could undermine the appearance and reality of independent, objective policing.

3. That unlawfulness did not itself require a stay. Applying the principles stated in R v Horseferry Road Magistrate’s Court, ex parte Bennett [1994] 1AC 42 and R v Mullen 1999 2 CAR 143, a stay without unfair-trial prejudice is reserved for exceptional executive misconduct which makes it offensive for the court to try the defendant. The judge was entitled to find that the officer acted in good faith. The total contribution was £4,500, and no actual prejudice or preferential treatment of contributing insurers was established. The conduct fell far short of the misconduct in those authorities.

4. The funding documents should have been identified for disclosure as material capable of undermining the prosecution case or assisting the defence. However, they were not deliberately withheld, they emerged during the trial, and the defence could identify no realistic prejudice from delayed or unavailable further material. The disclosure failures, separately and cumulatively with the unlawful funding, did not supply an exceptional basis for a stay.

5. The decision whether to discharge a jury after inadvertent exposure to previous convictions was discretionary. Mayes’s convictions were old and relatively minor, the trial had already been lengthy, and the judge’s unchallenged direction required the jury to put them wholly out of mind. Any prejudice to Mayes was cured; Hounsham suffered none.

• Court of Appeal (Criminal Division) Dismissed the convictions appeals in [2005] EWCA Crim 1366.
• Portsmouth Crown Court Convicted the appellants of conspiracy to defraud, imposed custodial sentences, and made confiscation orders. The trial judge refused applications to stay the proceedings and, for Hounsham and Mayes, to discharge the jury.