Walters, R v

A prosecution following an assurance that a suspect will not be prosecuted will usually be an abuse of process only where those responsible for the investigation or prosecution made an unequivocal representation and the suspect acted on it to her detriment. The controlling question is whether proceeding would be an affront to justice, in the context of the public interest in trying those reasonably suspected of crime.

An unauthorised statement by one public body does not bind a separate investigating authority which neither authorised nor knew of it. Fresh evidence on a conviction appeal must satisfy the criteria in Criminal Appeal Act 1968 section 23, including potential to support the appeal and a reasonable explanation for its earlier omission.

The applicant was convicted at Snaresbrook Crown Court of two fraud offences and ten benefit-related dishonesty offences. She had failed to disclose her ownership of another property while obtaining local-authority housing and claiming housing and council-tax benefits.

During parallel enquiries, the Department for Work and Pensions wrote that it would not institute criminal proceedings and that its investigation was closed. The local authority, which had not authorised or known of that letter, later prosecuted her. The recorder declined to stay the indictment for abuse of process.

On renewing her application for leave to appeal against conviction, the applicant contended that the letter made the prosecution an affront to justice. She also sought to rely on a 2009 local-authority review decision as fresh evidence.

Application refused. The court refused permission to vary the grounds and refused the renewed application for leave to appeal against conviction.

1. Applying R v Abu Hamza [2007] QB 659, the court held that a prosecution after an assurance not to prosecute is not ordinarily an abuse unless an unequivocal representation was made by those responsible for the investigation or prosecution and the defendant relied on it to her detriment. The question remained whether the prosecution would be an affront to justice.

2. The Department for Work and Pensions letter was unsatisfactory and could reasonably have appeared to the applicant to state that no prosecution would follow. But it was sent without the local authority’s authority or knowledge. The Department could not thereby bind the local authority or terminate its continuing investigation.

3. There was a substantial public interest in prosecuting the alleged dishonesty, which had caused significant public payments. The applicant had not changed her position or otherwise acted to her detriment in reliance on the letter. No exceptional feature displaced the general rule. The recorder was therefore entitled to refuse a stay, and the contingent challenge to the first two counts necessarily failed.

4. The proposed fresh evidence did not satisfy section 23 of the Criminal Appeal Act 1968. No satisfactory explanation was given for failing to use the document at trial. It did not clearly establish that the local authority knew the nature of the applicant’s interest in the other property and raised further questions. It was not arguable that it could support the appeal.

• Court of Appeal (Criminal Division) In [2020] EWCA Crim 894, the court refused permission to vary the grounds and the renewed application for leave to appeal against conviction.
• Court of Appeal (single judge) Leave to appeal against conviction was refused on 21 February 2019.
• Crown Court at Snaresbrook On 20 July 2018, the jury convicted the applicant on all 12 counts. She received concurrent 18-month sentences, suspended for two years, with 140 hours’ unpaid work.