Gripton, R. v

An unequivocal assurance by an investigating or prosecuting authority that a person will not be prosecuted may, exceptionally, make a later prosecution an abuse of process. Detrimental reliance is a significant consideration but is not an indispensable condition. The ultimate question is whether allowing the prosecution to proceed would be an affront to justice.

The assessment remains fact-sensitive. A public reversal by the Crown of a position stated to a court is undesirable and requires concern. It will not, however, ordinarily render a prosecution abusive where the proposed defendant was unaware of the assurance, did not rely on it, and suffered no resulting prejudice.

The appellant had pleaded guilty in the Crown Court to perjury arising from conflicting evidence given in proceedings concerning an alleged rape. At the retrial of the man accused of rape, prosecuting counsel informed the judge, in the appellant's absence, that no person involved would face further proceedings. The appellant was later charged with perjury.

Her application to stay the indictment as an abuse of process was refused. She appealed against conviction, contending that the Crown's unequivocal assurance precluded her prosecution even though she had not relied on it to her detriment. The central issue was whether the later prosecution was an affront to justice.

1. Appeal dismissed. The prosecution was not an abuse of process. Although the Crown had made an unequivocal public representation that extended to the appellant, permitting the prosecution to continue was not an affront to justice.

2. The court held that neither R v Bloomfield [1997] 1 Cr App R 135 nor R v Abu Hamza [2007] 1 Cr App R 27 laid down a comprehensive and binding test. Bloomfield was expressly confined to its exceptional facts. In Abu Hamza, the formulation that abuse would be unlikely without both an unequivocal assurance and detrimental reliance did not establish indispensable requirements. The courts must remain free to decide abuse of process by reference to fairness in the circumstances of the particular case.

3. The governing inquiry was whether the proposed prosecution would be an affront to justice. Detrimental reliance may exceptionally be unnecessary, as Bloomfield demonstrated, but its absence was material here. The appellant had maintained the same position from her later statement onwards and had long understood that she might face the consequences of admitting false evidence.

4. The appellant was not present or represented when the assurance was made and did not learn of it until after her arrest. She therefore could not have acted on it or altered her position in reliance upon it. Those circumstances materially distinguished Bloomfield.

5. The court nevertheless recorded its concern that the Crown had changed a publicly stated position without any disclosed reason. That concern did not outweigh the circumstances showing that the prosecution was not unfair. The court also noted that the complainant's anonymity was protected by section 1 of the Sexual Offences Amendment Act 1992.

• Court of Appeal (Criminal Division): appeal against conviction dismissed in [2010] EWCA Crim 2260 .
• Crown Court at Shrewsbury sitting at Wolverhampton: HHJ Onions refused an application to stay the perjury indictment as an abuse of process. The appellant then pleaded guilty and received 52 weeks' imprisonment suspended for 18 months, with a 28-day curfew requirement.