Killick, R. v

A decision not to prosecute may be reviewed at the request of a complainant. That review is an integral part of prosecutorial discretion, not merely a complaint about service. The prosecutor must act impartially and complete the review within a reasonable time.

A later prosecution may be an abuse of process where there was a clear and unequivocal representation of no prosecution and detrimental reliance. Even then, later circumstances may justify proceedings. Delay or administrative failure will not itself require a stay unless it causes prejudice or prevents a fair trial. Available evidence should ordinarily be adduced at trial; fresh evidence will not be admitted on appeal without a proper justification and where the interests of justice do not require it.

The appellant was convicted at the Central Criminal Court of non-consensual buggery contrary to section 12(1) of the Sexual Offences Act 1956 and sexual assault. He was acquitted of a further allegation of anal rape. The complaints concerned alleged sexual offending against three severely physically disabled men, two of which concerned events in the 1990s.

Following his arrest, the CPS initially decided not to prosecute. After requests by the complainants for review, a fresh review concluded that the earlier decisions were wrong and that a prosecution should proceed. The appellant challenged the proceedings as an abuse of process, sought to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968, and contended that the convictions were unsafe.

1. The appeal was dismissed and leave to appeal on the fresh-evidence and safety grounds was refused. The trial judge was right not to stay the prosecution.

2. The court approved the approach in R v Abu Hamza [2007] QB 659. A clear and unequivocal representation that a defendant will not be prosecuted, coupled with detrimental reliance, may make a prosecution abusive. The emails and police correspondence in this case did not amount to such a representation. The appellant's solicitors knew that a further review was under way, and the correspondence did not state that no future prosecution could occur.

3. A complainant has a right to seek a review of a decision not to prosecute. The CPS was therefore bound to respond to the request for review and its independent prosecutor was entitled to reconsider the merits impartially. The delay before the final review was lamentable, but it caused neither relevant detriment nor prejudice. The final review was impartial and correctly concluded that there was a realistic prospect of conviction.

4. The age of the allegations and the delay did not prevent a fair trial. The defence could test the complainants' accounts and the evidence concerning dates, previous complaints, inconsistencies and collusion. The judge monitored the position, gave appropriate directions, and the jury could fairly assess the evidence.

5. Under section 23 of the Criminal Appeal Act 1968, it was not in the interests of justice to receive the proposed family evidence and photographs about the appellant's physical condition. More relevant medical evidence could have been called at trial, the proposed evidence was of limited value, and no proper explanation justified its previous omission.

6. The convictions were safe. The jury had been directed to assess each count separately and to consider collusion. It was open to the jury, despite inconsistencies and the acquittal on the remaining count, to be sure of the evidence supporting the two convictions.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed; leave to appeal on the fresh-evidence and safety grounds refused.
• Central Criminal Court: His Honour Judge Rook QC dismissed the abuse-of-process application. The jury convicted the appellant of non-consensual buggery and sexual assault, and acquitted him of anal rape.