R. v FB (Rev 1)

A Crown Court judge has no general power to terminate a lawful prosecution because the judge considers it unmeritorious, disproportionate, insufficiently in the public interest, or an unjustified use of court resources. The court’s inherent jurisdiction permits intervention only to prevent an abuse of process or oppression and injustice.

The overriding objective in the Criminal Procedure Rules 2010 is not a free-standing source of substantive power. It governs the exercise of existing powers. Active case management may promote efficient and proportionate trials, but it presupposes that the prosecution continues and cannot justify quashing an indictment absent abuse of process.

The Crown appealed three terminating rulings made by Judge Shorrock at Woolwich Crown Court. He quashed indictments alleging robbery and breaches of non-molestation orders. He considered that the prosecutions should not have been brought in the Crown Court, having regard to their perceived merits, delay, cost and pressure on court lists.

The respondents relied on the overriding objective and active case-management provisions in the Criminal Procedure Rules 2010. The central issue was whether those Rules gave a Crown Court judge power to quash an otherwise valid indictment because the judge considered the prosecution insufficiently worthwhile or disproportionate.

1. The Crown’s appeals were allowed. Judge Shorrock had no power or authority to quash the indictments on the grounds he gave. His terminating rulings were quashed, and all three cases were remitted to Woolwich Crown Court for fresh trials before a different judge.

2. The established common-law position was decisive. A valid indictment must proceed unless there is a recognised basis for preventing trial, such as a defective indictment, a plea in bar, a nolle prosequi, lack of jurisdiction, or an abuse of process. A judge cannot terminate proceedings because the judge thinks that the evidence is weak, a conviction unlikely, the offence trivial, or prosecution contrary to the public interest. That would improperly blur the separate functions of prosecutor and judge: R v Chairman of London County Sessions, ex parte Downes [1954] 37 Cr App R 148; Connelly v DPP [1964] AC 1254; DPP v Humphreys [1977] AC 1.

3. The Criminal Procedure Rules 2010 did not change that constitutional position. The overriding objective supplies the framework for construing and exercising powers conferred by legislation or the Rules. The active case-management powers regulate the efficient progression of a case. They do not create a power to end it. Quashing an indictment terminates, rather than manages, proceedings; absent abuse of process, case-management decisions cannot themselves have that effect.

4. A judge may properly express a view and invite the prosecutor to reconsider whether prosecution remains in the public interest. The decision whether to institute or continue proceedings remains with the CPS, subject where appropriate to judicial review. Efficient use of limited resources requires firm judicial management, but it cannot justify short-circuiting a properly instituted prosecution. Any restriction on the categories of case tried by jury is for Parliament.

• Court of Appeal (Criminal Division): Allowed the Crown’s appeals in [2010] EWCA Crim 1857, quashed the terminating rulings and remitted the cases for fresh trials before a different judge.
• Crown Court at Woolwich: Judge Shorrock quashed the indictments under section 57(4) of the Criminal Justice Act 2003 and granted leave for the Crown to appeal under section 58.