Dowty, R. v

Where the prosecution withdraws an indication that it will not proceed on charges if guilty pleas are entered on others, a stay for abuse of process depends on the fairness of trying the defendant in the full circumstances. Lack of reliance-based detriment does not invariably defeat such an application. The court must nevertheless assess the reasons for the change, the strength and seriousness of the case, and whether proceeding would bring the administration of justice into disrepute in the eyes of right-thinking people.

A clear prosecutorial promise did not make the later prosecution unfair where the defendant knew, before pleading guilty, that the Crown would proceed, and the earlier decision not to prosecute was manifestly wrong on strong evidence.

The applicant sought renewed leave to appeal against conviction after pleading guilty at Chelmsford Crown Court to offences of making indecent photographs of children and meeting a child following sexual grooming. He received a total sentence of 22 months’ imprisonment.

Before committal, the Crown had indicated that it would withdraw two counts if he pleaded guilty to the remaining counts. The proposed course could not be implemented in the Magistrates’ Court. The Crown later decided to proceed on all counts. The applicant applied to stay the proceedings as an abuse of process, but the Crown Court refused the application. The issue was whether the Crown’s departure from its earlier indication made the convictions unsafe.

1. The renewed application for leave to appeal against conviction was refused. The court agreed with the single judge that there was no basis for contending that the Crown Court’s refusal to stay the proceedings was wrong or irrational.

2. An abuse-of-process application founded on a prosecutorial promise not to proceed may concern either the defendant’s ability to receive a fair trial or the wider unfairness of trying the defendant at all. This case fell within the latter category. The applicant suffered no relevant prejudice from reliance on the original indication because, when he entered his guilty pleas, he knew that the Crown intended to proceed on all counts and that his counsel did not then intend to seek a stay.

3. Absence of detriment was not automatically fatal. The governing question, derived from Hunter v Chief Constable West Midlands Police [1982] AC 529, was whether the Crown’s conduct would bring the administration of justice into disrepute in the eyes of right-thinking people. That assessment had to be made with knowledge of the whole relevant context.

4. The Crown’s original indication was clear and its withdrawal disappointed the applicant. However, the later decision was explained: the evidence on the disputed counts was very strong, and the original decision not to proceed was manifestly wrong, particularly given the seriousness of the allegations. A right-thinking person aware of those matters would not regard the continuation of the prosecution as an affront to justice. The Crown Court had therefore applied the correct principles and permissibly refused a stay.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against conviction refused: [2011] EWCA Crim 3138.
• Crown Court at Chelmsford: refused the applicant’s abuse-of-process application; the applicant later pleaded guilty and was sentenced to a total of 22 months’ imprisonment.