R v BKR

A stay for abuse of process under the second limb of R v Horseferry Road Magistrates ex parte Bennett is an exceptional remedy. Where a fair trial remains possible, a court must not stay proceedings merely because it disagrees with the prosecutor’s public-interest assessment. Ordinarily, there must be executive misconduct, or a comparable exceptional circumstance, such that trying the case would offend the court’s sense of justice and propriety or undermine confidence in the criminal justice system.

A Crown Court cannot use the abuse jurisdiction as a general public-law review of an ordinary charging decision. Review akin to judicial review may arise in the distinct context of a specific international obligation, but that does not enlarge the ordinary domestic jurisdiction. A judge may express concerns and seek a proper explanation, while the statutory discretion whether to prosecute remains with the CPS.

The Crown appealed under section 58 of the Criminal Justice Act 2003 against a Crown Court order staying one remaining allegation of sexual assault against BKR as an abuse of process.

BKR had previously been convicted of other offences and had later pleaded guilty to seven further sexual-assault counts. The trial of the outstanding count had been delayed and aborted on an earlier occasion. Several judges raised concerns that a further trial would consume substantial resources but would probably produce no additional sentence. The CPS nevertheless maintained that the evidential and public-interest stages of its Code test were met, particularly because of the seriousness of the allegation and the complainant’s willingness to give evidence.

The trial judge stayed the prosecution under the second limb of the abuse-of-process jurisdiction, holding that its continuation was vexatious, oppressive and unfair. The central issue was whether disagreement with that prosecutorial decision could justify a stay.

1. Appeal allowed. The stay could not stand. The proposed trial would be fair, and the CPS decision to continue the prosecution was not an abuse of process.

2. The second limb identified in R v Horseferry Road Magistrates ex parte Bennett [1994] 1 AC 42 protects the integrity of the criminal justice system. It is not a general inquiry into fairness to the defendant or into whether a judge considers a prosecution worthwhile. The court must assess whether the relevant conduct is so egregious that the trial itself offends justice and propriety or undermines public confidence. The balancing exercise includes the public interest in prosecuting serious crime.

3. The CPS had considered the Code for Crown Prosecutors and given reasons for its decision. There was no bad faith, deliberate abuse of power, or failure to apply the Code. A judge’s strong disagreement with the weight given to proportionality, resources, a likely nominal penalty, or the complainant’s interests did not amount to the executive misconduct needed in an ordinary domestic case.

4. The review described as akin to judicial review in modern-slavery authorities is confined by its context. It may ensure compliance with a specific international obligation, including the obligation arising under article 26 of the Council of Europe Convention on Action Against Trafficking in Human Beings 2005. It does not confer a general Crown Court jurisdiction to review ordinary charging decisions on public-law grounds.

5. Judges may properly express views about a proposed prosecution and seek a senior, reasoned response. The CPS should pay proper and appropriate respect to those views, including by explaining its approach to proportionality and the needs of other cases under CrimPR 1.1(2)(h)(iv). That process does not transfer the statutory prosecutorial discretion to the court. Following a further CPS review, the proceedings were directed to continue at a London court other than Woolwich.

• Court of Appeal (Criminal Division): In R v BKR [2023] EWCA Crim 903, the Crown was granted leave to appeal. The court allowed the appeal, set aside the Crown Court stay for abuse of process, and directed that the trial be allocated to a London court other than Woolwich.
• Crown Court at Woolwich: The trial judge stayed the remaining count as an abuse of process under the second limb of the Bennett jurisdiction.