Aine Davis v R

An abuse-of-process ruling made at a preparatory hearing is, in principle, appealable as a question of law relating to the case under the Criminal Procedure and Investigations Act 1996. An appellate court should nevertheless intervene only for legal or evaluative error, irrationality, or failure to consider relevant matters.

A later prosecution following foreign proceedings is not abusive merely because some evidence overlaps. The court must assess holistically whether the prosecutions arise from the same incident or are founded on the same or substantially the same facts. Under section 17 of the Terrorism Act 2000, an accused cannot be the person described as “another”, but liability may arise from arranging sequential transfers of terrorist funds between other persons.

Aine Davis v R concerned an application for permission to appeal against pre-trial rulings of the Recorder of London at the Central Criminal Court. The applicant faced counts of terrorist-related possession of a firearm and terrorist funding arrangements in 2013 and 2014, after having been convicted in Turkey in 2017 of membership of an armed terrorist organisation on 12 November 2015.

He sought a stay for abuse of process. He relied on double jeopardy, the absence of special circumstances, and alleged misconduct by United Kingdom officials concerning his deportation from Turkey. He also argued that the funding-arrangements count was bad in law under section 17 of the Terrorism Act 2000. The central issues were appellate jurisdiction, the relationship between the Turkish and domestic proceedings, and the proper scope of the alleged funding arrangement.

1. Permission to appeal was refused and the application dismissed. The court held that a ruling at a preparatory hearing refusing a stay for abuse of process is, in principle, a ruling on a question of law relating to the case under section 31(3)(b) of the Criminal Procedure and Investigations Act 1996. It therefore falls within the appeal mechanism in section 35. The issue goes to the root of a prosecution and concerns a case prepared for trial, unlike disclosure as such. The court applied the approach in R v H [2007] UKHL 7.

2. The existence of jurisdiction did not entitle the court to remake the first-instance decision. A ruling on abuse of process commonly depends on factual findings and a multi-factorial assessment. The appellate court may intervene only for an error of law or approach, reliance on an irrelevant matter, failure to consider a relevant matter, or an irrational conclusion.

3. The double-jeopardy ground was unarguable. Where proceedings follow a conviction or acquittal on different charges, the court must determine whether they arise from the same incident or are founded on the same or substantially the same facts. The assessment is holistic. It may consider the charges, their temporal and factual ambit, the seriousness and extent of alleged criminality, and the significance of any factual overlap. Common admissible evidence may be used in both prosecutions without making them the same prosecution.

   Here, the Turkish prosecution concerned ISIS membership in Turkey in November 2015. The domestic counts concerned firearm possession and funding arrangements in 2013 and 2014. The photographs and cash arrangement were at most historical evidence in Turkey, rather than facts founding the Turkish charge. The factual overlap was slight. Accordingly, no question of special circumstances arose.

4. The alleged executive misconduct did not meet the very high threshold for the secondary category of abuse of process. That category protects the integrity of the justice system. The court considers the gravity and culpability of any misconduct and its connection with the proceedings. There was no evidential basis for claims that United Kingdom officials procured an unlawful deportation, improperly sought a United States prosecution, pressured the applicant to waive Turkish rights, or knowingly assisted removal despite pending proceedings.

5. Count 3 was legally valid. For section 17, the accused cannot himself be the person to whom funds are made available as “another”. But an accused may enter into or become concerned in an arrangement for sequential transfers between other persons for terrorist purposes. It was immaterial whether he might later have received funds as one possible link in that chain. The Crown had not changed its case.

• Court of Appeal (Criminal Division). In [2023] EWCA Crim 1018, the court refused permission to appeal against the preparatory-hearing rulings and dismissed the application.

• Central Criminal Court. The Recorder of London, His Honour Judge Lucraft KC, rejected the abuse-of-process arguments in rulings dated 10 March 2023 and rejected the challenge to Count 3 on 18 April 2023. He refused permission to appeal on 18 April 2023.