AJ, R. v

A stay for the second category of abuse of process is an exceptional, discretionary remedy. The ultimate question is whether trying the accused would affront the court’s sense of justice and propriety, or undermine public confidence in the criminal justice system. Alleged assurances about prosecution, reliance and public-law legitimate expectation are relevant only insofar as they bear on that question; they do not create a separate or rigid test.

The terrorism provisions in issue were sufficiently clear and any relevant interference with Convention rights was in accordance with law. An interlocutory appeal under Criminal Procedure and Investigations Act 1996 requires a suitable, discrete question of law. A fact-sensitive or provisional ruling, dependent on trial evidence, will not ordinarily qualify.

The applicant faced charges under sections 5 and 8 of the Terrorism Act 2006 arising from alleged preparation to fight with Kurdish forces and attendance at training locations in Iraq and Syria. The prosecution alleged an intention extending beyond fighting Daesh. It accepted that, on Counts 1 and 3, the applicant should be acquitted if his conduct was solely and exclusively directed to fighting Daesh with the YPG.

At a mandatory preparatory hearing, Edis J refused an application to stay the indictment for abuse of process. The application relied on alleged assurances about return to the United Kingdom, the applicant’s mental-health vulnerability, the asserted uncertainty or arbitrariness of the terrorism legislation, and apparently different treatment of other returnees.

The applicant sought leave to bring an interlocutory appeal. The central issues were whether the stay ruling raised a suitable question of law under the Criminal Procedure and Investigations Act 1996 and whether the assumed circumstances made continuation of the prosecution an affront to the integrity of the criminal justice system.

1. Leave to appeal was refused. The ruling did not raise a question of law suitable for interlocutory appeal. In any event, the judge had applied the correct principles and was entitled to refuse a stay.
2. The second category of abuse of process protects the integrity of criminal justice; it is not a disciplinary jurisdiction. Applying R v Maxwell [2010] UKSC 48, R v Warren (Curtis) [2011] UKPC 10 and Gripton [2010] EWCA Crim 2260, the court held that the high-threshold, discretionary inquiry is whether a trial would affront justice or bring the system into disrepute. The factors are fact-sensitive. The features identified in Abu Hamza [2007] QB 659 are a useful rule of thumb, not indispensable conditions.
3. Public-law legitimate expectation should not be allowed to dilute or confuse that abuse-of-process inquiry. On the judge’s findings, the police officer was neither able nor purporting to promise that there would be no prosecution. The applicant had received no categorical assurance from a person able to give one, did not trust the communications, and knew that returning involved a risk of prosecution. The case was materially different from kidnapping or entrapment authorities.
4. The relevant provisions of the Terrorism Act 2000 and Terrorism Act 2006 were sufficiently certain in their terms and application. The court rejected the alleged lack of legality and considered the asserted chilling effect substantially overstated. Any relevant interference with Convention rights was in accordance with law.
5. Although the preparatory hearing was mandatory, an interlocutory appeal remained exceptional. Under the guidance in R v I, P, O, I & G [2009] EWCA Crim 1793 and R v VJA [2010] EWCA Crim 2742, no suitable discrete question arose where the ruling was fact-sensitive, provisional, and dependent on how the evidence emerged. The trial judge could revisit abuse of process after the prosecution case if necessary.

• Court of Appeal (Criminal Division) — refused leave to bring an interlocutory appeal against the refusal of a stay for abuse of process: [2019] EWCA Crim 647.
• Central Criminal Court — Edis J refused the applicant’s abuse-of-process application at a preparatory hearing on 15 October 2018.