R v BKJ
[2024] EWCA Crim 1354
R v BKR
28 July 2023
[2023] EWCA Crim 903
Court of Appeal
A judge stopped a trial because it seemed pointless, given the defendant's past convictions and the low chance of extra jail time. A higher court disagreed, saying the prosecutor didn't do anything wrong, even if their decision was questionable. The trial will now proceed in a different court.
Key Facts
- •BKR was convicted of sexual assault and fraud, leading to further complaints.
- •Nine further counts of sexual assault were brought against BKR; he pleaded guilty to seven, and a trial was scheduled for the remaining two.
- •Due to various delays (including the COVID-19 pandemic and a disclosure failure), the trial for the remaining two counts was repeatedly postponed.
- •Multiple judges expressed concerns about the prosecution's continued pursuit of the case, citing resource constraints and the unlikelihood of an additional sentence.
- •The trial judge stayed the prosecution as an abuse of process, arguing it was pointless and offended the court's sense of justice.
- •The prosecution appealed the stay.
Legal Principles
Abuse of process – Two limbs: (1) impossibility of a fair trial; (2) offending the court's sense of justice and propriety, undermining public confidence.
R v Horseferry Road Magistrates ex parte Bennett [1994] 1 AC 42
The court's power to stay a prosecution as an abuse of process is exceptional and requires restraint, particularly regarding prosecutorial decisions.
DPP v Humphrys [1977] AC 1; R v H(S) [2010] EWCA Crim 1931
Second limb abuse of process requires some form of executive misconduct, not merely disagreement with a prosecutorial decision.
R v Maxwell [2010] UKSC 48; Warren v Attorney General for Jersey [2012] 1 AC 22
While judges can express views on prosecutions, they cannot substitute their judgment for the CPS's on whether to prosecute.
R v H(S) [2010] EWCA Crim 1931
The jurisdiction to stay proceedings due to abuse of process in modern slavery cases (akin to judicial review) is limited and does not extend to all cases.
R v AAD, AAH & AAI [2022] EWCA Crim 106; R v AFU [2023] EWCA Crim 16
CPS Code for Crown Prosecutors: Considers seriousness of offence, culpability, harm to victim, and proportionality of prosecution.
Code for Crown Prosecutors
Outcomes
The Court of Appeal allowed the prosecution's appeal and overturned the stay.
The trial judge improperly reviewed the CPS's decision-making process. No executive misconduct justifying a stay under the second limb of *Ex p. Bennett* was found. The judge's concerns about proportionality did not equate to abuse of process.