R v Isimeli Gade Seru

A prosecution will not ordinarily be stayed for abuse of process after a representation of non-prosecution unless the representation was unequivocal, made by those responsible for the investigation or prosecution, and acted on by the defendant to his detriment. The absence of prejudice also defeats an allegation that a fair trial is impossible.

An unauthorised and promptly reversed email expressing an intention to offer no evidence is not a final or binding commitment where no formal offer of no evidence has been made to the court and no not-guilty verdict has been entered. The service setting does not give such a communication enhanced status.

The applicant, a corporal, faced two charges of sexual assault before a Court Martial. The Service Prosecuting Authority sent an email stating that it intended to offer no evidence, but it promptly withdrew that indication after the complainant sought a review under the Victim's Right to Review Policy.

The Assistant Judge Advocate General refused the applicant's application to stay the prosecution as an abuse of process. The applicant then sought an extension of time and leave to appeal to the Court Martial Appeal Court. The central issue was whether the erroneous email made the resumed prosecution unfair or an affront to the conscience of the court.

1. Applications refused. The court refused both the extension of time and leave to appeal because the proposed appeal could not succeed.
2. The applicable abuse-of-process principle was that a prosecution will not ordinarily be abusive following a representation of non-prosecution unless there was an unequivocal representation by those conducting the investigation or prosecution and the defendant acted on it to his detriment. Later-discovered facts may nevertheless justify a prosecution. The applicant had suffered no prejudice in preparing or presenting his defence. This was therefore not a fair-trial, or limb-one, abuse.
3. Nor was the continuation of the prosecution an affront to the conscience of the court. The email of 22 May 2023 was sent without authority by a junior officer. It was corrected within 10 days following a prompt review by the Director of Service Prosecutions. The applicant's disappointment did not amount to detrimental reliance.
4. The email was an indication of an intention to offer no evidence, not a final and irrevocable decision. The proceedings had not reached the formal stage at which no evidence was offered before the Court Martial and not-guilty verdicts were entered. The policy's reference to proceedings which cannot be reinstituted concerned formally concluded proceedings.
5. The service context did not alter that conclusion. Both the applicant and the complainant were entitled to rely on proper decisions of the Service Prosecuting Authority. The complainant's right to review, and the public and service interest in trying viable allegations, outweighed the limited effect of the erroneous email.

• Court Martial Appeal Court: Refused the applications to extend time and for leave to appeal: [2023] EWCA Crim 1102.
• Court Martial: The Assistant Judge Advocate General dismissed the applicant's application to stay the prosecution as an abuse of process.