Curtis Francis Warren and others v Her Majesty's Attorney General for the Bailiwick of Jersey (Jersey)

The abuse-of-process jurisdiction has two distinct categories. Where a fair trial is impossible, proceedings must be stayed. The second category protects the integrity of the criminal justice system and requires a fact-sensitive balance between the public interest in trying serious crimes and the public interest in preventing executive misconduct from undermining confidence in justice. Rigid categories are undesirable. The fact that, without unlawfully obtained evidence, there would have been no prosecution is relevant but does not determine the outcome. A stay is not a disciplinary sanction. Serious misconduct may be outweighed by the gravity of the offence, urgency, absence of prejudice and other circumstances. Appellate intervention is justified only where the decision was not reasonably open or material factors were omitted.

The appellants were convicted in Jersey of conspiring to import 180 kg of cannabis. At a preparatory hearing, the Commissioner dismissed their application for a stay on grounds of abuse of process arising from police misconduct in installing and using an audio device in France without the necessary foreign consent and while misleading relevant authorities. He separately refused to exclude the evidence under article 76(1) of the Police Procedures and Criminal Evidence (Jersey) Law 2003.

The Court of Appeal of Jersey dismissed renewed applications for leave to appeal. The appeal to the Board concerned only the refusal of a stay. The central issue was whether the misconduct required a stay, or whether the Commissioner was entitled to balance the competing public interests and refuse one.

Appeals dismissed. The Board advised that the Commissioner had reached a conclusion open to him.

1. The abuse-of-process jurisdiction has two distinct categories. The first applies where a fair trial is impossible, in which event a stay follows without further balancing. The second applies where, although a fair trial is possible, proceeding would offend justice and propriety or undermine the integrity of the criminal justice system. These categories must be kept separate.
2. In the second category, the court must balance the public interest in trying persons charged with grave crimes against the public interest in protecting the integrity of criminal justice. The possible factors are extensive and no rigid classification or exhaustive test is appropriate. The fact that the prosecution would not have succeeded without the unlawful conduct is relevant, but is not necessarily decisive. A stay is not a means of punishing or disciplining the police.
3. The Board rejected the general approach in R v Grant [2005] EWCA Crim 1089; [2006] QB 60 insofar as it treated deliberate invasion of legal professional privilege as ordinarily requiring a stay despite the absence of prejudice. Such misconduct is a serious affront and may strongly favour a stay, but the circumstances must be weighed cumulatively.
4. The misconduct here was grave and genuinely produced the evidence, but the Commissioner was entitled to take into account the seriousness of the drug conspiracy, the urgency of the investigation, the absence of prejudice or unfairness, the absence of deception of a foreign court, and the fact that the circumstances did not involve torture, entrapment or coercion. Under article 76(1) of the Police Procedures and Criminal Evidence (Jersey) Law 2003, the court remained the arbiter of the fairness of admitting the evidence.
5. On an appeal from this discretionary decision, the appellants had to show that the conclusion was not reasonably open to the Commissioner or that material matters had been left out of account. He was not required to address every detail where he had considered the main thrust of the case. That threshold was not met.

Lord Hope, Lord Brown and Lord Kerr added concurring observations condemning the deliberate illegality and warning that repetition could make a future stay necessary. Lord Brown also distinguished a case where misconduct induced the defendant to create incriminating evidence from a case involving the mere fruit of unlawfully obtained evidence. Lord Rodger agreed with Lord Dyson’s reasons and the dismissal.

1. Privy Council — [2011] UKPC 10: appeals dismissed.
2. Court of Appeal of Jersey — renewed applications for leave to appeal against the Commissioner’s decisions dismissed on 14 August 2008.
3. Commissioner — application for a stay dismissed on 20 March 2008; separate application to exclude evidence under article 76(1) dismissed on 29 April 2008.