Crawley & Ors, R. v

A stay of criminal proceedings for abuse of process is a remedy of last resort. A stay for inability to receive a fair trial requires that a fair trial be impossible; where competent representation can realistically be secured with sufficient preparation time, an adjournment is the appropriate remedy.

The integrity limb of abuse of process is reserved for very exceptional circumstances. Difficulty in obtaining publicly funded advocates, although it may require the responsible authorities to act, does not without more compromise the integrity of the criminal justice system. A legally aided defendant has no right to await independent counsel of choice where delay would jeopardise a fair trial date.

The respondents faced serious allegations arising from an alleged land-banking fraud. The prosecution, brought by the Financial Conduct Authority, was complex and document-heavy.

Following reductions in remuneration for very high cost criminal cases, independent advocates declined to accept contracts. At the intended trial date the respondents had no advocates who had prepared the case. His Honour Judge Leonard Q.C., sitting at Southwark Crown Court, stayed the indictment as an abuse of process on 1 May 2014.

The prosecution appealed under Criminal Justice Act 2003. The central issue was whether a stay was justified, or whether there was a realistic prospect that competent advocates with sufficient time for preparation would be available in the foreseeable future.

1. The prosecution appeal was allowed. The stay was reversed and the proceedings were ordered to resume at Southwark Crown Court.

2. The court applied the two established categories of abuse of process in Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72. Under the fair-trial limb, the question was whether it would be impossible to give the accused a fair trial. A stay is permanent in effect and is available only where no lesser remedy, including an adjournment, would be just and proportionate.

3. The judge's primary conclusion, that an adjournment would violate the process of the court, was wrong in principle. The integrity limb concerns exceptional conduct which affronts justice or degrades the lawful administration of justice, as illustrated by R v Horseferry Road Magistrates Courts, ex p Bennett [1994] 1 AC 42 and R v Mullen [2000] QB 520. The lack of available advocates arose from a dispute about remuneration and affected the effective operation of the system, not its integrity. It was also wrong to treat the independent FCA and the legal-aid authorities as one actor benefiting from a shared failure.

4. There was a realistic prospect of a fair trial in January 2015. The Public Defender Service had a sufficient available pool, including advocates of the rank of Queen's Counsel, who could be instructed promptly and given adequate time to prepare. Article 6(3)(c) did not entitle legally aided defendants to defer instruction while awaiting a wider choice or independent counsel of their preference, where that course jeopardised the trial date.

5. Court-listing inconvenience, possible effects on related defendants, and the availability of civil or regulatory alternatives could not justify abandoning a properly brought serious criminal prosecution. CPS v Campbell; McInerney v Financial Services Authority; Medicines and Healthcare Products Regulatory Agency v Carlton [2009] EWCA Crim 997, concerning confiscation proceedings, provided no support and was confined to its facts.

6. There was no present breach of Article 6 of the European Convention. A future representation problem could be reconsidered on the facts then existing, and remedies short of a stay could be used if necessary.

• Court of Appeal (Criminal Division): Leave to appeal was granted. The court allowed the prosecution appeal under the Criminal Justice Act 2003, reversed the stay, and ordered the indictment to resume: [2014] EWCA Crim 1028.
• Crown Court at Southwark: His Honour Judge Leonard Q.C. stayed the prosecution as an abuse of process on 1 May 2014. No citation for that ruling is stated in the judgment.