DS & TS, R v

A stay for abuse of process is mandatory where a fair trial is impossible. Where the alleged abuse instead concerns the integrity of the criminal justice system, the court must balance all material considerations. These include the seriousness of the charges, the position of complainants, the effect and materiality of prosecution failures, the prospect of a fair trial, defence compliance, and available alternative sanctions.

There is no principled distinction between a failure to comply with directions for service of evidence and a failure to make proper disclosure. Both may justify terminating proceedings where continuation would offend justice or undermine public confidence. A stay is not, however, a disciplinary punishment for prosecutorial incompetence. Where a fair trial remains possible and the undisclosed material has limited impact, grave disclosure failures may be met by other sanctions rather than a stay.

The Crown appealed from a decision of His Honour Judge Bowers in the Crown Court at Teesside staying proceedings against DS and TS for abuse of process. They faced allegations including rape, false imprisonment and assault by penetration arising from separate relationships involving two complainants.

During the trial, serious and repeated failures by the police and CPS to schedule and disclose unused material caused substantial disruption. The jury was discharged on the eighth day. After further disclosure, the judge found that disclosure was as complete as reasonably possible, that there was no evidence of bad faith, and that a fair retrial could in principle take place. Nevertheless, he stayed the prosecution because of its exceptional disclosure failures.

The central issue was whether those failures required a stay to protect the integrity of the criminal justice system despite the possibility of a fair future trial.

Disposition

The Crown’s appeal was allowed. The stay for abuse of process was set aside and the proceedings were permitted to continue.

1. The court applied the established distinction between two bases for a stay. A stay follows without balancing where a fair trial is impossible. Where the complaint is that continuation would compromise the integrity of justice, the court must balance the competing public interests. Those include bringing grave allegations to trial and avoiding conduct that would undermine public confidence in justice: R v Maxwell [2011] 1 WLR 1837.

2. There was no principled distinction between failure to obey a direction concerning service of evidence and failure to comply with disclosure obligations. Both can affect trial fairness, orderly procedure and confidence in the justice system. The approach in R v Boardman [2015] EWCA Crim 175 therefore applied to both forms of failure.

3. The prosecution and North Yorkshire Police had committed reprehensible failures. The absence of proper training and supervision in disclosure was a material factor. The court also emphasised that police forces should have a detailed programme for training and supervision in disclosure, particularly in serious cases. The failures disrupted the trial, wasted resources and damaged the jury’s confidence.

4. Nonetheless, the judge had found that a fair trial was possible within a reasonable time. The materially undisclosed records were principally relevant to credibility rather than constituting unserved primary evidence. The charges were grave, and a stay would deny the complainants a determination of their allegations. Earlier failures by DS’s representatives to comply with the Criminal Procedure Rules also formed part of the balance.

5. Alternative sanctions, including wasted costs and a possible order against the police, were relevant. A stay should not be imposed merely to punish the police or CPS. Balancing all factors, continuation of this prosecution would not offend justice or undermine public confidence to the extent required for a stay.

• Court of Appeal (Criminal Division): Allowed the Crown’s appeal under section 58 of the Criminal Justice Act 2003 and set aside the stay: [2015] EWCA Crim 662.
• Crown Court at Teesside: His Honour Judge Bowers stayed the proceedings for abuse of process on 12 December 2014 after serious disclosure failures caused the jury to be discharged.