R v Clive Moore & Anor

A stay of criminal proceedings for abuse of process is an exceptional, last-resort remedy. The second limb applies where proceeding would offend the court’s sense of justice and propriety or undermine public confidence in the criminal justice system.

The court must identify serious prosecutorial misconduct and then assess whether a stay is necessary on the particular facts. An allegedly unlawful agreement funding a police investigation does not, without more, make a resulting prosecution abusive. Arm’s-length, transparent funding which preserves police independence and creates no case-specific financial incentive will not ordinarily justify a stay.

The appellants were convicted after a trial in the Crown Court at Gloucester arising from fraudulent insurance claims concerning a road collision. One appellant was convicted of perverting the course of public justice. The other was convicted of fraud, perverting the course of public justice and, following a guilty plea, using a false instrument.

Before trial, both appellants applied for the indictment to be stayed. They argued that the Insurance Fraud Enforcement Department had been unlawfully or improperly funded under a sponsored services agreement between the City of London Police authority and the Association of British Insurers. The central issues were whether the agreement was unlawful and whether its operation made prosecution an abuse of process.

Both appeals dismissed. The court upheld the refusal to stay the indictment.

1. A stay for abuse of process is an exceptional remedy. The two limbs are distinct. The first concerns whether a fair trial is possible. The second concerns whether proceeding would offend the court’s sense of justice and propriety or undermine public confidence in the criminal justice system. The approach stated in R v Ng and O’Reilly [2024] EWCA Crim 493 was applied. The second limb requires a two-stage assessment: identification of serious misconduct by prosecutorial authorities, followed by an evaluation of whether a stay is necessary in the particular circumstances. The focus is protection of the integrity of the criminal justice system, not punishment of misconduct. The related point stated in R v BKR was also applied.
2. The court did not need finally to determine whether the sponsored services agreement was lawful under section 93 of the Police Act 1996. Its alleged unlawfulness would not, without more, make every prosecution arising from the funded investigation an abuse of process. In any event, it was far from clear that the agreement was ultra vires. The statutory reference to gifts was capable of extending beyond unconditional gifts, particularly in light of section 93(2), which contemplated terms providing for commercial sponsorship.
3. The agreement did not undermine the integrity of the criminal justice system. It was an arm’s-length agreement with the police authority rather than a direct payment to the investigating unit. It was transparent and subject to accountability. The funding was not advanced for a particular investigation, was not linked to an individual insurer’s financial interest, and did not create a case-specific incentive or divert existing police resources. Police operational independence was expressly protected. The funder had no day-to-day control, no exclusivity was obtained, and the budget was fixed in advance by a formula.
4. The risks identified in R v Hounsham [2005] EWCA Crim 1366 and the materially different circumstances in R v Zinga [2014] EWCA Crim 52 were considered. The present arrangement differed materially from the solicitation of funds by junior officers to finance a particular investigation in R v Hounsham. Even in that case the court had upheld the refusal of a stay. The features of the present agreement were sufficient to allay the identified concerns.

• Court of Appeal (Criminal Division): Both appeals against conviction were dismissed. The court held that the refusal to stay the indictments was correct.
• Crown Court at Gloucester: Following the trial, His Honour Judge Rupert Lowe refused the appellants’ applications to stay the indictments for abuse of process.