Samir v Crown Prosecution Service

A prosecution will not be stayed for abuse of process merely because prosecuting authorities have acted incompetently or caused anxiety. The court must identify conduct sufficiently serious to bring the administration of justice into disrepute, such as bad faith or malice. Errors in charging and correcting charges do not meet that threshold where there remains a proper case to answer. Ordinary anxiety caused by criminal charges does not, without more, constitute treatment contrary to article 3 or article 8 of the European Convention on Human Rights.

The claimant sought to renew an application for judicial review concerning the Crown Prosecution Service’s decision to prosecute him for knowingly employing persons not entitled to work in the United Kingdom at his restaurant.

The charging history included withdrawn or corrected charges, including allegations under sections 4 and 25 and an incorrect reliance on section 8 of the Asylum and Immigration Act 1996. The claimant argued that the prosecution should be stayed because the CPS’s conduct brought the administration of justice into disrepute and breached articles 3 and 8 of the European Convention on Human Rights. The central issues were whether the prosecutorial errors disclosed bad faith or sufficiently abusive conduct, and whether the resulting anxiety engaged either Convention article.

1. The renewed application was refused. The court accepted that the prosecuting authorities had acted incompetently and that the conduct was unedifying. The errors included charging offences which were not appropriate, withdrawing charges imperfectly, and initially failing to charge one relevant instance of employment. Those errors did not establish bad faith, malice or any improper purpose.

2. A stay based on conduct bringing the administration of justice into disrepute required more than prosecutorial incompetence. There was an accepted case to answer concerning the knowing employment of the two workers under section 21 of the Immigration, Asylum and Nationality Act 2006. In those circumstances, there was no proper basis for preventing the prosecution from proceeding.

3. The claimant’s assumed anxiety, including lack of sleep, did not approach the high threshold required by article 3 of the European Convention on Human Rights. Article 3 concerns very serious state misconduct, and there was no evidence of deliberate conduct or bad faith by the CPS or police.

4. The article 8 argument also had no basis. The court characterised the article 3 submission as nonsensical and said that it should not have been advanced. The proceedings could therefore continue before the district judge as quickly as conveniently possible.

• High Court (Administrative Court): the renewed application for judicial review was refused.
• Aberystwyth Magistrates’ Court: the claimant had previously sought a stay of the criminal proceedings. The district judge declined to deal with the abuse-of-process issue, leading to the matter being brought before the Divisional Court.