F, R v

A stay of a criminal prosecution for abuse of process is justified only where the conduct relied upon has made a fair trial impossible or has otherwise rendered the prosecution an abuse of the court’s process. Criticism of an investigating authority’s conduct, including errors in disclosure practice or public communications, does not suffice without a tenable basis for finding such unfairness.

Under section 67 of the Criminal Justice Act 2003, the Court of Appeal may reverse a ruling affected by an error of law or principle, or one which it was unreasonable to make. Permission for a prosecution appeal may be sought from either the trial judge or the Court of Appeal, although the usual good practice is to apply first to the trial judge.

The respondent was charged with offences concerning an alleged unlawful collective investment scheme, known as the KF Concept, and with specimen theft counts. At the close of the prosecution case, the Crown Court stayed counts 1 to 8 as an abuse of process. The judge held that conduct by the Financial Services Authority had irretrievably contaminated the fairness of the prosecution by undermining potential defence witnesses. The theft counts were not stayed.

The prosecution sought leave to appeal under the Criminal Justice Act 2003. The appeal concerned whether the stay met the legal threshold for abuse of process and whether the prosecution had to seek permission from the trial judge before applying to the Court of Appeal.

1. Appeal allowed. The court granted the prosecution leave to appeal, reversed the stay of counts 1 to 8, and referred those counts back to the Crown Court for directions.

2. A stay for abuse of process requires conduct that makes it unfair to try the defendant or prevents a fair trial. The principles stated in DPP v Humphrys [1977] AC 1, Hui Chi-Ming v R [1992] 1 AC 34 and R v Beckford [1996] 1 Cr App R 164 did not permit a stay on the material before the judge. The Financial Services Authority had to remain mindful of fair-trial requirements and maintain liaison with the Serious Fraud Office while exercising its statutory powers.

3. The court identified some justified criticisms. The earlier unsuccessful application for a production order should have been disclosed on the later without-notice search-warrant application. Proper records of meetings with potential witnesses should have been kept and disclosed. An investigator should not have participated in a television programme while a prosecution was pending. Those matters did not, separately or cumulatively, establish that the authority had improperly caused witnesses to change their views or impaired the respondent’s ability to have a fair trial. Its conduct could instead be considered by the jury, subject to trial rulings.

4. Applying section 67 of the Criminal Justice Act 2003, the judge’s faulty approach to the evidence amounted to an error of law, and the stay was not a ruling reasonably open to him. On procedure, section 57(4) gave both the Crown Court judge and the Court of Appeal power to grant permission; it imposed no compulsory sequence. Nevertheless, applications for permission against terminating rulings should ordinarily first be made to the trial judge.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 1639, granted the prosecution leave to appeal, allowed the appeal, reversed the stay of counts 1 to 8, and referred them back to the Crown Court for directions.
• Kingston Crown Court: On 1 June 2009, stayed counts 1 to 8 as an abuse of process, but declined to stay counts 9 to 16 alleging theft.