Department for Work and Pensions v Courts

A stay of criminal proceedings for abuse of process is an exceptional remedy. It requires a serious abuse of power or circumstances making a fair trial impossible or unfair. Prosecutors generally have a wide discretion to select the appropriate charge. Charging an offence under Social Security Administration Act 1992, section 111A, is not an abuse merely because proceedings under section 112 could previously have been brought or have become time-barred. Article 6(1) concerns determination within a reasonable time, rather than serving as a general time limit for instituting proceedings. A stay will ordinarily be inappropriate unless delay has made a fair trial impossible or unfair.

These were two appeals by way of case stated from decisions of the East Cornwall Magistrates’ Court in prosecutions brought by the Department for Work and Pensions against Deborah Courts and Jayne Costello. Each defendant had admitted claiming benefit while working. The informations alleged offences under section 111A of the Social Security Administration Act 1992. The magistrates stayed both proceedings, reasoning that delay had prevented or prejudiced prosecutions under section 112 and that the choice of section 111A involved manipulation of the court process. In Costello, they also found a breach of Article 6(1). The issues concerned abuse of process, prosecutorial charging discretion, the reasonable-time requirement, and the court’s power to invite amendment of an information.

1. The appeals were allowed. The stays were lifted and both prosecutions under section 111A were remitted to the Magistrates’ Court to continue and be determined without delay.

2. A stay for abuse of process is a power to be exercised with very great caution and only in exceptional cases. A stay may be justified despite the possibility of a fair trial where there has been a serious abuse of power offending the court’s sense of justice and propriety. However, the applicant bears a heavy burden, and avoidable prosecutorial delay alone is insufficient.

3. The magistrates’ finding that the Department had manipulated the process by selecting section 111A merely because the section 112 time limit had expired was unsupported. The inference could not properly be drawn from the interviews, the QB1C forms, and the passage of time. The forms stated only that the defendants might be prosecuted and did not bind the Department to a particular offence.

4. The choice of charge lies primarily within the prosecuting authority’s wide discretion. Section 111A was an appropriate provision on the facts, since the admissions could support allegations of dishonesty. It was not itself an abuse to prosecute under one offence when another offence could have been prosecuted earlier. The statutory scheme imposed no time limit on prosecutions involving dishonesty and gave no indication that section 111A could not be used after the section 112 time limit had expired.

5. Article 6(1) requires criminal proceedings to be determined within a reasonable time. It is not principally a time limit on the institution of proceedings. The magistrates failed to assess when the charges were likely to be determined. The interval in Costello was insufficient, in the circumstances, to establish a breach, and the proposed stay was inconsistent with their view that section 112 proceedings could still be determined within a reasonable time.

6. Lord Justice Keene stated, although it was unnecessary to the decision, that service of a QB1C form would probably mark the beginning of the Article 6 period because it was an official indication that the person might be prosecuted. A Magistrates’ Court may invite the prosecution to seek amendment of an information in an appropriate case, but cannot require it. Amendment to section 112 was inappropriate here.

• High Court (Administrative Court): appeals by way of case stated allowed. The decisions of the East Cornwall Magistrates’ Court staying the proceedings were set aside, and the cases were remitted for the section 111A proceedings to continue and be determined without delay.