H, R (on the application of) v Guildford Youth Court

A criminal prosecution may be stayed for abuse of process where a fair trial is impossible or where it would be unfair to try the defendant. The second category includes cases in which an officer of the State, acting with authority, has made a clear promise that the defendant will not be prosecuted. The public interest requires such promises to be respected. The promise need not have been made in the presence of a judge. The seriousness of the alleged offence does not, by itself, justify allowing the prosecution to proceed, particularly where the prosecution gives no reason for departing from the promise.

The claimant, aged 15, was investigated after allegedly kicking another pupil and causing a jaw fracture. During a police interview, he was told that the matter would be dealt with by a final warning. The police later referred the matter to the Crown Prosecution Service, and he was charged with unlawfully inflicting grievous bodily harm.

At trial, the prosecution accepted that a clear promise of a final warning had been made but argued that this did not justify a stay. The Guildford Youth Court found that the prosecution had reneged on the promise and that this was an abuse of process, but declined to stay the proceedings because there was no prejudice and the charge was serious. The claimant pleaded guilty and sought judicial review of that decision.

1. The claim was allowed. The decision of the Guildford Youth Court refusing a stay was quashed, and the conviction entered after the claimant’s guilty plea was also quashed. Legal aid taxation was ordered.
2. A prosecution may be stayed for abuse of process in two circumstances: where the defendant cannot receive a fair trial, or where it would be unfair to try the defendant. The burden lies on the defendant to establish unfairness: [1996] 1 Cr App R 94.
3. The Youth Court had correctly found that the police had made a representation that the case would be dealt with by a final warning and had reneged on it. A clear promise by an officer of the State, made with authority and with an understanding of its effect, engages a public interest in holding the State to its promise.
4. The principle applied even though the promise was not made in the presence of a judge. That feature was not critical. The reasoning in R v Mark Andrew Bloomfield, [1997] 1 Cr App R 135, showed that allowing the prosecution to revoke a promise without explaining what was wrong with it could bring the administration of justice into disrepute. The seriousness of the charge was not a valid reason for refusing a stay, particularly where no reason for departing from the promise had been given.
5. The Youth Court had therefore erred in declining to exercise its discretion. The refusal to stay the prosecution was quashed, and the subsequent conviction necessarily fell with it.

• High Court (Administrative Court): The claim for judicial review was allowed. The decision of the Guildford Youth Court dated 26 February 2007 was quashed, together with the subsequent conviction.