R v BKJ

A category 2 stay for abuse of process is an exceptional, last-resort remedy. The court must first identify serious misconduct or other compelling circumstances and then assess whether a stay is necessary to protect the integrity of the criminal justice system, balancing that interest against the public interest in trying crime.

Investigative shortcomings which do not prevent a fair trial and do not amount to misconduct will ordinarily be matters for the jury when assessing the reliability of witnesses. They do not justify removing the case from the jury. A stay is not a means of punishing or disciplining investigators.

The prosecution sought leave under section 58 of the Criminal Justice Act 2003 to appeal a Crown Court ruling staying an indictment for rape and assault by penetration as an abuse of process.

The accused alleged collusion between three complainants. He criticised delays in obtaining their mobile phones, aspects of the investigation, and the officer’s conduct of the ABE interviews. The trial judge rejected the contention that a fair trial was impossible, but stayed the proceedings under the second category of abuse of process.

The prosecution contended that the ruling involved legal and principled error and was unreasonable. The accused disputed the court’s jurisdiction on the basis that the prosecution had not adequately given the statutory acquittal undertaking. The central issue was whether the investigative criticisms could justify the exceptional remedy of a category 2 stay.

1. The court granted the prosecution leave to appeal, reversed the stay, and ordered that a fresh trial may take place. The prosecution had sufficiently given the acquittal undertaking required by section 58(8) of the Criminal Justice Act 2003. Although the undertaking could have been articulated more clearly, the exchange before the trial judge, read with the prior submissions, adequately conveyed the required agreement.

2. A category 2 abuse of process stay is very rare. The court applied the two-stage approach stated in R v Ng and O'Reilly [2024] EWCA Crim 493: first, identify misconduct or other compelling circumstances; secondly, decide whether a stay is required to safeguard the integrity of the criminal justice system, having balanced the competing public interests. The remedy does not punish or discipline prosecutorial authorities.

3. The trial judge had found neither that the accused could not receive a fair trial nor that the officer had committed misconduct. The alleged investigative failings were matters which the jury could assess when deciding the reliability and truthfulness of the complainants and the allegation of collusion. They did not supply a compelling reason to terminate the prosecution.

4. The judge also failed expressly to weigh those criticisms against the public interest in trying serious sexual-offence allegations. The ruling therefore involved an error of law or principle and was not a ruling reasonably open to the judge under section 67(b) and (c) of the Criminal Justice Act 2003.

5. Under section 61 of the Act, the court reversed the ruling. The fresh trial should be listed promptly, preferably before a different judge; the accused remained on bail pending any further Crown Court consideration.

• Court of Appeal (Criminal Division) — In R v BKJ [2024] EWCA Crim 1354, granted the prosecution leave to appeal, reversed the stay, and ordered that a fresh trial may take place.
• Crown Court — At the close of the prosecution case, the recorder stayed the proceedings as a category 2 abuse of process after rejecting the contention that a fair trial was impossible.