Hauschildt, R (on the application of) v Highbury Corner Magistrates' Court

Where a suspect is induced to return to England by a clear assurance concerning interview, charging and bail, and the assurance is deliberately broken, the resulting prosecution may constitute an abuse of process. The court may cure the abuse by restoring the suspect to the position in which he would have been had the assurance been honoured. That may be achieved through bail on terms reflecting the original promise, rather than necessarily through release by habeas corpus. The court may also make an appropriate costs order against the responsible prosecuting authority where the claimant has incurred expense countering unlawful state action.

The claimant, resident in France, voluntarily returned to England after his solicitors understood from the investigating officer that he would be interviewed and, if charged, bailed. He was charged with fraud but was refused bail after the officer opposed his release. At the magistrates’ hearing on 12 December 2007, the officer accepted that he had given a false assurance because he believed the claimant would otherwise evade capture.

The claimant applied for habeas corpus, alleging abuse of the criminal process. The central issue was whether the broken assurance constituted an abuse and, if so, whether that abuse could be cured by bail on terms reproducing the position promised.

1. Abuse of process. The deliberate making and breaking of an assurance that induced a suspect to return voluntarily to England was a clear abuse of the process of the English courts. The proper alternatives for procuring the claimant’s return had been voluntary cooperation on honestly stated terms or use of the applicable extradition procedure. The case contained the essential feature identified in R v Horseferry Road Magistrates' Court, ex parte Bennett [1994] 1 AC 42; (1994) 98 Cr App R 114, namely evasion of lawful extradition procedures.
2. Curing the abuse. Abuse could be cured either by issuing a writ of habeas corpus or by determining bail on the footing that the admitted abuse was a change in circumstances. The court was prepared to use the latter course, exercising the powers of a District Judge under section 66 of the Courts Act 2003.
3. Appropriate terms. Bail was granted on terms which placed the claimant precisely in the position in which he should have been had the promise been fulfilled. Those terms included residence at a stated address in France, attendance at Holborn Police Station before the committal proceedings, and residence at a stated London address while in England.
4. Procedure and costs. The habeas corpus application was stayed under RSC 54.2. The claimant’s costs were ordered to be paid by the CPS, subject to detailed assessment on the standard basis. The Magistrates’ Court was not criticised for making a judicial decision, and the police were not parties against whom a costs order could be made.

• Highbury Corner Magistrates’ Court: On 12 December 2007, the claimant was refused bail after being charged with fraud.
• High Court (Administrative Court): The habeas corpus application was stayed. The abuse was cured by bail on specified terms, and the CPS was ordered to pay the claimant’s costs.