DS & Ors, R. v

A failure to follow the charging practice described in R v Rimmington and Goldstein does not, without more, make a prosecution an abuse of process. A stay is justified only where the accused cannot have a fair trial, or where trying the case would threaten the integrity of the criminal justice system. The latter requires clear and compelling justification, such as tactical manipulation to evade a statutory time limit, penalty limit or defence.

Statutory provisions addressing particular forms of nuisance may supplement rather than replace the common-law offence of public nuisance. A statutory offence is not a relevant alternative merely because it is capable of being charged. It must substantially capture the gravamen and seriousness of the alleged offending.

The Crown appealed, under section 58(2) of the Criminal Justice Act 2003, against a terminating ruling of His Honour Judge Owen Davies QC in the Inner London Crown Court.

The respondents were charged with conspiracy to cause public nuisance. The prosecution alleged that they agreed to organise a secret, large-scale unauthorised rave in a residential area, with loud music and consequent disturbance to local residents. The judge stayed the indictment as an abuse of process. He considered that statutory offences under the Environmental Protection Act 1990, the Criminal Justice and Public Order Act 1994 and the Licensing Act 2003 were proper alternatives.

The central issue was whether the prosecution’s use of the common-law offence, rather than those statutory provisions, was an abuse of process under the principles in R v Rimmington and Goldstein [2005] UKHL 63.

1. Appeal allowed. The terminating ruling was wrong in law. The court granted leave and directed that the trial for conspiracy to cause public nuisance should continue.

2. R v Rimmington and Goldstein [2005] UKHL 63 did not establish a free-standing and wide-ranging abuse jurisdiction whenever a prosecutor lacks a good reason for selecting public nuisance instead of a statutory offence. Its guidance on good practice did not displace the established abuse-of-process principles. Where a fair trial is possible, a stay to protect the integrity of justice is a remedy of last resort.

3. Prosecutorial selection of a common-law charge may amount to abuse where it is a tactical device to defeat a statutory protection deliberately provided by Parliament, such as a time limit, sentencing limit or defence. Mere non-compliance with good charging practice does not suffice. The court should be slow to interfere with a charging decision made in good faith.

4. The common-law offence of public nuisance survives. Relevant statutory regimes supplement it; they do not wholly replace it. The statutory alternatives relied on did not substantially cover the alleged agreement to organise a concealed, large-scale illegal rave and its foreseeable consequences.

5. No offence under section 80 of the Environmental Protection Act 1990 could arise because no abatement notice had been served. No offence under section 63 of the Criminal Justice and Public Order Act 1994 could arise because no direction to leave had been given until the end of the disturbance. In any event, the police power was additional to the common-law offence. A possible breach of section 136 of the Licensing Act 2003 would not capture the essence, seriousness or consequences of the alleged offending.

6. Accordingly, there was no relevant statutory alternative and no manipulation of process or other affront to the integrity of the criminal justice system. The stay could not stand.

1. Court of Appeal (Criminal Division): The Crown’s appeal was allowed in [2017] EWCA Crim 1410. The court set aside the terminating ruling and directed that the trial continue.

2. Inner London Crown Court: On 5 July 2017, His Honour Judge Owen Davies QC stayed the prosecution for conspiracy to cause public nuisance as an abuse of process.