LG, R. v

An abuse-of-process stay is exceptional. The two established bases must be kept distinct: a defendant can no longer receive a fair trial, or it is unfair for the defendant to be tried at all.

Substantial and unjustified prosecutorial delay does not itself justify a stay. Under the fair-trial limb, the defendant must identify serious prejudice which the trial process cannot remedy. Under the second limb, an expectation that there will be no prosecution is insufficient unless there was an unequivocal representation and detrimental reliance on it.

A later prosecution following a fresh expert report and a victim-family complaint is not, without bad faith or equivalent misconduct, an affront to the integrity of the criminal justice system. Pre-charge delay does not add a separate Article 6 basis where established abuse-of-process principles address the complaint.

The Crown appealed, under section 58 of the Criminal Justice Act 2003, against a terminatory ruling of Judge Ward in the Crown Court at Wolverhampton. The judge had stayed an indictment charging the respondent with causing death by careless driving.

The collision occurred in December 2010. The Crown Prosecution Service decided in June 2011 to take no further action, but that decision was not communicated to the respondent. Following a complaint by the deceased’s family, a further accident-investigation report was obtained in 2016. It estimated a materially higher speed and led to a summons in May 2017.

The judge held that the delay, the implied expectation of no prosecution, and the prospect of an unfair trial made the case exceptional. The central question was whether those circumstances justified an abuse-of-process stay.

1. Appeal allowed. The court reversed the stay and ordered that the criminal proceedings resume in the Crown Court.

2. The judge erred by interweaving the two distinct abuse-of-process limbs. A stay may be granted because a fair trial is no longer possible or because trying the defendant would itself be unfair. The second limb was unavailable: there was no bad faith by the prosecuting authorities and a reconsidered charging decision following a fresh expert report did not affront the integrity of the criminal justice system.

3. There was no unequivocal representation that the respondent would never be prosecuted. Even if an implied assurance had been capable of creating an expectation, the respondent had to show detrimental reliance or prejudice. His disappointed but understandable expectation was not enough.

4. For the fair-trial limb, delay required proof of significant prejudice which could not be accommodated in the trial process. The lapse of time, without identified irremediable prejudice to the defence, did not prevent a fair trial. Possible prejudice arising later at trial was speculative.

5. The public interest in prosecuting conduct assessed as criminal with sufficient prospects of conviction, and the interests of victims and their families, also supported resumption. The Article 6 authorities relied on concerned delay after charge or notification of likely prosecution. They added nothing to a complaint confined to the antecedent pre-charge period, which was governed by abuse-of-process principles.

• Court of Appeal (Criminal Division): The Crown’s appeal under section 58 of the Criminal Justice Act 2003 was allowed. The order staying the indictment was reversed and the proceedings were ordered to resume.
• Crown Court at Wolverhampton: On 26 February 2018, Judge Ward stayed the indictment for causing death by careless driving as an abuse of process.