Regina v Nazir Ahmed & Ors

A ruling terminating a section 4A procedure for an accused found unfit to stand trial is sufficiently connected with the indictment to be a ruling in relation to a trial on indictment for section 58 of the Criminal Justice Act 2003.

For category two abuse of process, the court must identify the prosecutorial misconduct and balance the public interest in trying serious crime against the need to preserve confidence in criminal justice. A stay is justified only where the misconduct is sufficiently grave to undermine that confidence. Serious disclosure failures, although reprehensible, will not necessarily meet that threshold where a fair trial remains possible, the public interest in trial is strong, and the defence did not promptly seek the court’s intervention. Digital-disclosure requests require a proper and focused evidential basis.

The prosecution appealed under section 58 of the Criminal Justice Act 2003 against Judge Richardson QC’s stay of an indictment alleging historic sexual offences against three brothers. The trial had collapsed after substantial late disclosure by the prosecution. Two respondents had previously been found unfit to stand trial, so the jury was to determine under section 4A of the Criminal Procedure (Insanity) Act 1964 whether they had done the acts charged.

The respondents contended that the prosecution could not appeal in respect of the unfit respondents because the section 4A procedure was not itself a trial on indictment. On the merits, the central issue was whether the disclosure and investigative failures amounted to category two abuse of process, requiring a stay to protect the integrity of the criminal justice system.

1. Appeal allowed. The Court granted the prosecution leave to appeal, set aside the stay and directed that the proceedings continue before a different judge.
2. Jurisdiction. A section 4A procedure is wholly dependent on an indictment. Although it is not itself a trial on indictment and the jury does not return a verdict on the indictment, a ruling terminating that procedure is connected with the trial on indictment. The broad words in relation to in section 58(1) of the Criminal Justice Act 2003 therefore gave the prosecution a right of appeal concerning all three respondents.
3. Category two abuse. Applying the two-category analysis in R v Maxwell [2010] UKSC 48, the court had first to identify the misconduct and then balance the public interest in trying grave offences against the need to protect the integrity of justice. A stay was available only where the continuation of the proceedings would undermine public confidence and bring the system into disrepute.
4. Application. The police and CPS failures in disclosure and investigation were serious and reprehensible. However, the judge had treated several irrelevant matters as part of the category two balance, including the age and perceived strength of the case, the earlier adjournments, the unfit respondents’ position and the fact that a fair trial remained possible. The ruling was therefore materially affected by error of law. Conducting the balance afresh, and consistently with R v Salt [2015] EWCA Crim 662, the court held that the failures did not amount to grave executive misconduct outweighing the very strong public interest in trying alleged sexual offences against children.
5. Disclosure procedure. The prosecution retained primary responsibility for disclosure. Nonetheless, once the defence considered the responses inadequate, it should have alerted the judge and made a formal section 8 application under the Criminal Procedure and Investigations Act 1996. Its failure to do so was a relevant consideration in the category two assessment.
6. Guidance. In obiter observations, the court stated that requests to inspect a witness’s digital devices or communications require an identifiable foundation. There is no presumption that their entire contents should be inspected, retained or downloaded. Requests must be focused, realistic and, where appropriate, structured by agreed search terms.

• Court of Appeal (Criminal Division) — In [2021] EWCA Crim 927, the court granted the prosecution leave to appeal, set aside the terminatory stay, and directed that the proceedings continue before a different judge.
• Crown Court at Sheffield — Judge Richardson QC stayed the indictment on 8 March 2021 on the basis of category two abuse of process following serious late disclosure.