RCPO v C

A criminal prosecution may be stayed for delay as an abuse of process only where the defendant shows that a fair trial is impossible and no less drastic measure can cure the resulting unfairness. The assessment is fact-sensitive. A case turning substantially on knowledge, suspicion and witnesses’ fading recollections may suffer incurable prejudice despite the existence of documentary material.

On an appeal from a discretionary stay, the appellate court asks whether the trial judge’s decision was one that could not reasonably have been reached. It does not intervene merely because it might reasonably have reached the opposite conclusion.

C, a solicitor and his firm’s nominated anti-money-laundering officer, faced six counts alleging involvement in arrangements and transactions concerning the proceeds of a VAT fraud. He had been interviewed by January 2005, but was not summoned until January 2008. Following adjournments, his trial was listed for September 2009.

At Manchester Crown Court, HHJ Steiger QC stayed the indictment as an abuse of process. He held that the delay made a fair trial impossible, principally because the case depended on evidence of C’s knowledge or suspicion and on witnesses’ recollections of events many years earlier.

The prosecution sought leave to appeal. The central issue was whether the judge’s conclusion that delay had caused incurable prejudice was one he could reasonably reach.

1. Leave to appeal was refused. The court upheld the stay of all six counts and directed that verdicts of acquittal be entered.

2. A stay for delay is exceptional. The defendant bears the persuasive burden of showing that a fair trial is impossible and that no less draconian measure, such as severance, evidential rulings, admissions, hearsay evidence or jury directions, can moderate the unfairness. A trial depending on documents is ordinarily less susceptible to a stay. However, documents did not conclusively resolve C’s knowledge or suspicion.

3. The court accepted that the relevant period for Article 6 admits no inflexible starting point. Applying the flexible approach described in Attorney General’s Reference No. 2 of 2001 (2003) UKHL 68, it declined to disturb the judge’s assessment of delay from June 2006. In the circumstances, a suspect’s interview date could arguably be relevant where the prosecution deliberately withheld an intention to proceed while awaiting other proceedings.

4. The prosecution’s delay was undisputed. The judge was entitled to treat the case as materially dependent on witnesses’ memories of C’s involvement, the transactions’ purposes, professional guidance and the impressions formed of the principal fraudster. The court recognised the utility of trial-management measures and the observation in Burke (2005) EWCA Crim 29 that the fairness of a delayed trial can become clearer during trial. Nevertheless, the omission of a fuller analysis of those measures did not deprive the ruling of its essential reasoning.

5. Following Regina v B (2008) EWCA Crim 1144, the appellate question was not whether the court would have made the same decision. It was whether the judge’s decision could not reasonably have been reached. The court could not so conclude, and would not interfere with the finding of incurable prejudice.

• Court of Appeal (Criminal Division): The prosecution’s application for leave to appeal was refused. The stay remained in force and verdicts of acquittal were directed on each count.

• Manchester Crown Court: HHJ Steiger QC stayed the indictment on 14 September 2009 as an abuse of process because delay had made a fair trial impossible.