AXR v R

A covert human intelligence source suspected of crime does not trigger automatic or general disclosure of that status to the prosecutor. Under the Regulation of Investigatory Powers Act 2000 and the CHIS Code of Practice, disclosure is limited to what is necessary for an authorised purpose and to those who need to know. Disclosure becomes necessary when the role becomes relevant to the investigation, often because the accused elects to rely on it in the defence. Articles 2 and 6 are engaged, but the system was Article 2-compliant. For category 2 abuse of process, the court balances the accused’s interests against the public interest in prosecuting crime. A reasonable decision to prosecute serious charges, with a fair trial possible and no prosecutorial misconduct, did not justify a stay.

AXR was charged with serious offences and applied to the Crown Court for a stay of proceedings as an abuse of process. He had previously acted as a covert human intelligence source and argued that the disclosure and protection system endangered his life, impaired his ability to participate in the trial, and failed to protect his Articles 2 and 6 rights.

The judge held that disclosure of his status became necessary only when he relied on it in his defence, that the system was compliant, that a fair trial was possible, and that there was no basis for a category 2 stay. The judge refused the application. AXR sought leave to appeal under section 35(1) of the Criminal Procedure and Investigations Act 1996 on four grounds concerning the protection system, disclosure obligations, the decision to prosecute and trial fairness.

The court unanimously refused leave to appeal.

1. Appellate approach. The Court of Appeal had jurisdiction to review the interlocutory abuse-of-process ruling, but should not remake factual findings or conduct the balancing exercise afresh unless the judge erred in law or approach, considered an irrelevant matter, failed to consider a relevant matter, or reached a decision no reasonable judge could reach. That approach was applied from R v BHQ [2023] EWCA Crim 1018.
2. CHIS protection. Where a CHIS is suspected of criminality, Articles 2 and 6 are engaged. The scheme under the Regulation of Investigatory Powers Act 2000 and the CHIS Code of Practice permits disclosure only where necessary for an authorised purpose and only to the extent necessary. The court rejected the argument that arrest or investigation generally creates an immediate need to disclose status to the prosecutor.
3. Disclosure and CPIA duties. The source unit does not become an investigator of the suspected criminality merely because a CHIS is arrested. Disclosure becomes necessary when the CHIS role becomes relevant to the investigation, often when the accused relies on that role in the defence. The source unit must then consider what disclosure is necessary and to whom, after which the prosecutor’s ordinary disclosure duties arise.
4. Abuse of process. Category 2 abuse is not confined to prosecutorial misconduct, although a stay in the absence of misconduct will be rare. Where a fair trial is possible, the court balances the accused’s interests against the public interest in prosecuting crime. The reasonableness of the prosecutor’s decision is relevant. The approach in R v BKJ [2024] EWCA Crim 1354 was applied.
5. Application. AXR chose to rely on his former CHIS role and was not compelled to do so. His complaints did not establish an imminent risk to life. The court treated Kolyadenko and others v Russia [2012] ECHR 338 as adverse to his Article 2 argument on the facts. A fair trial remained possible, the charges were serious, the decision to prosecute was reasonable, and the CHIS role was not a trump card permitting escape from prosecution.
6. Records. There was no general duty to record what amounted only to maintaining confidentiality, although a handler might usefully record a considered decision not to disclose. The Crown Court’s refusal to stay the proceedings disclosed no material error.

• Court of Appeal (Criminal Division) — refused AXR’s application for leave to appeal against the Crown Court’s refusal to stay the proceedings as an abuse of process.
• Crown Court — refused the application for a stay, holding that the CHIS protection system was compliant, a fair trial was possible, and continuation of the prosecution was not abusive.