Director of Public Prosecutions v Joseph Barton

A prosecution is not ordinarily an abuse of process merely because it relies on admissible res gestae evidence from a complainant whom the prosecution does not call. The prosecution has a wide discretion to decide which witnesses to call, subject to the interests of justice and the requirement to call a witness whose evidence remains capable of belief where the prosecution has undertaken to rely on that witness. Where a complainant has retracted allegations and the prosecution reasonably considers the anticipated evidence incapable of belief, the complainant may properly be left to the defence or, exceptionally, called by the court. Any unfairness must be assessed factually. A stay for disclosure failures requires grave prosecutorial misconduct, not mere negligence or administrative error. The appeal was allowed and the case remitted for trial before a differently constituted court.

The DPP appealed by way of case stated against the decision of a district judge sitting in the magistrates’ court. The judge had stayed proceedings against the respondent for assaulting his wife, holding that the prosecution’s reliance on recorded res gestae complaints without calling her made a fair trial impossible. The complainant had subsequently retracted her allegations, had never provided a prosecution witness statement, and was available to attend court. The judge also relied on an alleged failure to disclose her retraction letter before trial.

The central issues were whether the prosecution’s refusal to call or interview the complainant amounted to an abuse of process, whether the res gestae evidence would necessarily have required exclusion under section 78 of Police and Criminal Evidence Act 1984, and whether the disclosure failure independently justified a stay.

1. Appeal allowed. The stay was set aside and the case was remitted to be tried by a differently constituted court.
2. The case stated was deficient because it did not adequately record the res gestae evidence, the factual basis for the alleged disclosure failure, or the reasons why the proceedings were said to constitute an abuse. Nevertheless, the court could determine Issue 1 on the material before it.
3. The power to stay criminal proceedings for abuse of process is exceptional. Under the two categories identified in Maxwell, a Category 2 stay requires very serious misconduct and a balancing of the public interest in prosecution against confidence in the administration of justice. A disclosure failure must reach the level of grave executive misconduct before it can justify a stay.
4. The prosecution was not obliged to call the complainant. She had never supplied a prosecution witness statement, had not been treated as a prosecution witness, and had retracted her allegations. The prosecution was entitled, with good reason, to regard her anticipated evidence as incapable of belief. The defence knew the substance of her likely evidence and could call her, or the court could exceptionally call her if necessary. The refusal to call or interview her was therefore not an improper tactic or manipulation of the process.
5. There is no general rule that res gestae evidence must be excluded whenever the declarant is available but is not called by the prosecution. The authorities turn on their facts. Recorded complaints, supporting evidence of injury, the reliability of the statements, and the practical ability of the defence to challenge them were all relevant. The court did not itself decide the section 78 application, but rejected the submission that exclusion was inevitable.
6. The alleged non-disclosure was not shown to involve bad faith and was far short of the grave misconduct required for a Category 2 abuse. The proceedings were not an abuse of process.

• High Court (Administrative Court): allowed the DPP’s appeal by way of case stated against the magistrates’ court decision staying the prosecution as an abuse of process. The case was remitted for trial before a differently constituted court.