Smith, R (on the application of) v Crown Prosecution Service

This is an application for judicial review to quash the decision of the Crown Prosecution Service on 16 March 2010 to proceed with the prosecution of the claimant. It is also an application for a mandatory order that the CPS proceed against the claimant in accordance with an agreement which he says was reached with it on 24 February 2010 in relation to the prosecution against him. He was charged in November 2009 with an offence of harassment contrary to section 2 of the Protection from Harassment Act 1997. He pleaded not guilty. When the matter came on before District Judge Charles on 8 December 2009 for directions and was adjourned to a trial in March 2010, the District Judge inquired as to whether the matter might be resolved by the claimant submitting to a restraining order without a conviction. This was then debated in correspondence between the CPS and the solicitor for the claimant.

The correspondence concluded with a letter of 15 February 2010 in which the CPS said that the matter could not be dealt with in the way suggested by the District Judge. This was because it took the view that the legislation did not permit a restraining order to be made following the offering of no evidence by the prosecution, but required an acquittal following a trial.

The complainant in the criminal proceedings was the claimant's wife. They had been married 30 years, had three grown up children and were in the throes of divorce proceedings begun in June 2009. There were disputes associated, not surprisingly, with such proceedings including disputes in relation to the matrimonial home.

On 24 February 2010 before District Judge Williams, Mr Brierley, the solicitor for the claimant, appeared along with Ms James for the prosecution. The claimant was not present. It is a common practice for claimants not to be present for this sort of hearing because their attendance is not necessary; it adds to costs and inconvenience for them to attend. The purpose of the hearing was to canvass the position before the judge in open court as to whether a restraining order following the offering of no evidence could be pursued.

Mr Brierley, according to the judge's helpful note, confirmed that his client was willing to be made the subject of a restraining order on an acquittal following the offering of no evidence by the CPS.

Because of the debate in correspondence over the power to make such a restraining order, the judge records that Mr Brierley had asked for his opinion on that issue. The judge offered the opinion, without submissions or argument, that a restraining order could be made in those circumstances. The prosecutor was willing to adopt that course, namely to accept the offer of a restraining order upon an acquittal after the offering of no evidence.

The precise terms of the proposed restraining order were not resolved, but there was no doubt about the key provision in relation to contact between the claimant and his wife and it was not suggested that the modest drafting exercise would lead to the breakdown of the understanding between prosecution and defence.

The District Judge says this in paragraph 6 of his note:

The prosecutor, Ms James, then spoke to a more senior prosecutor at the CPS on the telephone, who indicated that the restraining order did seem a possibility and that on 26 February the prosecution could consider any possible terms for such an order. I should make it clear that that telephone conversation appears to have taken place before the matter was formally adjourned.

On 26 February, however, a different prosecutor appeared. The hearing on the 26th was also before a different District Judge. There is no clear evidence as to what was said by the prosecutor on that occasion, beyond that she did not accept the envisaged disposal by way of a restraining order. The CPS say no more than it was decided by a different Crown prosecutor that the CPS would not on that date offer no evidence or agree the terms of a restraining order.

The matter came before the magistrates' court next on 16 March 2010. This time it was before District Judge Williams again. The prosecutor declined to proceed by way of a restraining order and produced her reasons, which, according to a note later produced dated 31 March 2010, recorded her concerns as being, firstly, that the court on 24 February had not been a domestic violence court and that there had been :

The second reason given was that the prosecutor was concerned that the arrangement was not legally possible where the Crown formally offered no evidence on a summary offence. The proceedings on the 16th were adjourned in order for the question of abuse of process to be considered.

The CPS produced the document dated 12 March 2010. This document was before District Judge Williams on 16 March 2010.

The document of 12 March 2010 explained in more detail the approach of the CPS. Having set out briefly the reason for the change, the document then set out the extracts from the Code for Crown Prosecutors which deal with the situation under the heading “Restarting a Prosecution”. Paragraph 1:

That is the paragraph upon which the CPS relied. The more elaborate reasoning in the document covered two reasons for the decision. First, why an acquittal after the offering of no evidence did not permit a restraining order to be made: it required a trial according to the reasoning proffered in that document. The second reason was that the decision to proceed in the way envisaged was "wrong on fact". This was because there had been no discussion with the complainant or the support agencies and it was a breach of the victim's code to take such a decision:

That has led to these judicial review proceedings. The decision in Nembhard v The Director of Public Prosecutions [2009] EWHC 194 (Admin) shows that where, as here, it is contended that the trial should not take place because it would be unfair to try the defendant, the issue of abuse of process has to be dealt with by the High Court. It would be otherwise where the issue is whether the defendant can have a fair trial, but the issue here is whether it is fair to try the defendant.

Mr Tucker, on behalf of the claimant, submits that it would be an affront to justice to try the claimant. The factual position, he submits, was that in reality an agreement was struck on 24 February 2010 between the prosecutor and the defendant in the face of the court to the effect that a restraining order would be accepted in return for the CPS offering no evidence. A compromise was arrived at. The doubts over jurisdiction were not entered as a continuing reservation to be reviewed in the light of what District Judge Williams opined. There was no reference to the decision being contingent upon a further consideration at a different level or upon consultation with other agencies or the complainant.

Had the claimant known that an adjournment for the purposes of his attendance might put that agreement (with which he was fully in accord) at risk, his solicitors would have done everything to obtain his attendance on 24 February. As I said, Mr Tucker emphasises that his absence involved no fault on his part but reflected the common practice of defendants at that stage in magistrates' courts proceedings. The precise terms of the restraint order, he said, would have presented no difficulty and would have mirrored the terms upon which the claimant has been on bail pending the resolution of these proceedings.

He submits that the first reason given for not proceeding in this way on 26 February or 16 March, namely that the court had no jurisdiction, is a bad one. It is conceded by Mr Kelly on behalf of the CPS that it is a bad point. It is indeed a short point to say that where no evidence is offered against somebody in the magistrates' court and in consequence he is acquitted, he is acquitted. So, submits Mr Tucker, the first basis for not proceeding with the agreement was always misconceived.

So far as the second reason is concerned, namely the absence of consultation with the complainant and other support agencies, he submits that there never was any consultation either between the 24 and 26 February or between 26 February and 16 March. Accordingly, although the CPS changed its decision from accepting a restraint order to a decision to proceed with the prosecution on the basis that there had been no consultation, it had not taken any steps to justify the decision to prosecute in the light of any response to consultation. Obviously a consultation response might have meant that the original decision should still stand.

There is also in the note of 12 March 2010 a suggestion that the other prosecutor took a different view of the merits of the proceedings, regarding the case as more serious, but that was not elaborated until the further document dated 31 March 2010.

Mr Tucker submitted that it was not always necessary for the claimant to show that he had been prejudiced in order to show that a trial would now be unfair. He also drew factual parallels with what he said was an example of such a case. He referred to R v Bloomfield [1996] EWCA Crim 1801, in which Staughton LJ, sitting in the Court of Appeal Criminal Division, considered some of the cases on abuse of process. In that case the CPS had agreed and stated as much in front of the Crown Court that it would not proceed with a prosecution because it accepted that the defendant in that case had been "set up" to commit the offence.

The prosecutor specifically told the judge in his room that he wanted to adjourn the plea and directions hearing and re-list it for mention to offer no evidence but that he did not want to do it on that day because others involved in the operation were present and would be likely to "smell a rat" if in public the prosecutor offered no evidence. On that basis the case was adjourned for a short time to come on again for mention where the prosecution would offer no evidence.

Between the two hearings the prosecutor decided to continue with the prosecution and abandon its previous stance.

The Crown Court judge asked whether prejudice had to be shown, concluded that it had to be shown but there was no prejudice and it was not manifestly unfair for the trial to proceed.

The Court of Appeal considered whether prejudice was required and came to no very firm conclusion on that as a matter of principle. The court did, however, say that nobody had attempted to show that the original decision to offer no evidence was clearly wrong. It was merely unauthorised and somebody with authority had taken a different view but the Court of Appeal concluded that, in the special circumstances of that case, to proceed with the trial would be an abuse of process. The adjournment had been granted for the sole benefit of the prosecution, which had made clear statements to the judge as to what it intended to do, and to the defendant or his legal representative.It was only for reasons to suit the prosecution that the matter was not dealt with on that day. It is not surprising that the Court of Appeal regarded the behaviour of the CPS or prosecutor as being that it would tell the court that it did not want to proceed on a particular day because it was inconvenient to it but would proceed on another day when it was convenient to it, but meanwhile had decided to change its mind. It regarded the CPS as treating the court as at its beck and call. That case involved a clear breakdown of the proper relationship between the prosecutor and the court, in which the court was treated as being there for the convenience of the prosecutor. But it is also the case that the defendant, had the prosecutor been willing to proceed that day, had other defendants not been present in court, would have had the benefit of no evidence being offered and an acquittal That is the facet that Mr Tucker relies on.

In Bloomfield there is also reference to the decision in R v Makdi 15 March 1993, no reference given, in which it was held to be an abuse of process, that is unfair, to try the defendant where the court had made clear its displeasure at the CPS failure to comply with requirements and had indicated that no further adjournments would be granted. The matter was brought on the third time before an assistant recorder, who was not told the full position and proceeded with the trial ignorant of all that had gone before. Again, there was a clear element of the court being treated at least disrespectfully.

Mr Tucker submits that the defendant has lost the opportunity to have an acquittal and to accept a restraining order, simply because he was not present on the 24^th February, for perfectly good reasons. Mr Kelly for the Crown Prosecution Service submits that prejudice is an essential feature of the exercise of the power to prevent a prosecution on the grounds that it would be unfair to try the defendant. He refers me to the decision of the Court of Appeal Criminal Division in R v Abu Hamza [2006] EWCA Crim 2918, [2007] QB 659. Lord Phillips of Worth Matravers CJ said that it was difficult to define a test for those circumstances:

In paragraph 54 he continued, having referred to authorities including Bloomfield:

He submits that there is no prejudice to the claimant here. There was only a very short space of time in reality between 24 February and 26 February in which he could have expected that a restraining order would be made without a trial and that there was a change of mind for good reason. Those reasons included the failure of the prosecutor to consult the complainant and other supporting agencies. The note of 31 March points out the prosecutors’ view was that there remained a reasonable prospect of conviction and that the case was serious and that, taking that view, it was perfectly proper to say that the previous decision was clearly wrong and therefore there had been no breach of the prosecutors' code.

In my judgment it is not of itself an abuse of process for a prosecutor to change his mind even based upon a wrong view of the law. It is a proper factor for a prosecutor to consider that consultation with victim or complainant has not taken place when it should do. This is of importance in many cases, but it is particularly important in domestic violence cases where the relationship between complainant and defendant may contain seeds of direct or indirect pressure or a need to bring to trial a course of conduct that has taken place over some time or, finally, to bring a prosecution in respect of what may be the latest in a sequence of events.

If reasons of that sort are deployed, there would have to be a strong case shown by a claimant both that he had received an unequivocal promise that the case would not proceed, and he would have had to have suffered prejudice. I say that by way of introduction to the specific conclusions that I have come to in the circumstances of this case. I conclude on the facts that, as at 24 February, there had been an agreement between the prosecutor and the defence lawyers, expressed to the court, that no evidence would be offered and that the defendant would be acquitted on the basis that the court would then, at his agreement, impose a restraining order.

I reach that conclusion not just because of what the judge says in his note, but also because it is clear from the way the CPS have expressed the change of position that it accepts that that was indeed the position, rather than that there was uncertainty over the position either in relation to jurisdiction or in relation to drafting. It is also apparent from the very short adjournment to enable the applicant to be present.

I also accept Mr Tucker's observation that, had the defendant thought that there was any risk that this deal might go by the board as a result of the adjournment, he would have been got to court in order for the envisaged and agreed procedure to take effect. It was merely his perfectly understandable absence that meant the matter had not proceeded to a conclusion on the 24th.

I also attach some importance to the fact that the CPS prosecutor had, whether or not Mr Brierley was aware of it, contacted, albeit briefly, someone more senior to state what was being done.

The first reason given in relation to jurisdiction is a simple and wrong point and in my judgment it would be an affront to justice if the taking of a wrong point and the consequent adjournment led in this case to the entitlement to revisit the deal. In reality that is not the way Mr Kelly seeks to justify the position of the CPS. It would not always be an affront but, in these circumstances, the taking of that simple point wrongly could not permit the trial to proceed unless there were other good reason for it.

The CPS relies strongly on the fact that the lawyer on 24 February had not consulted, as she should have done, the complainant and other support groups. The problem with that argument is that there is no connection between this reason given for not pursuing the deal and the decision to prosecute. The reason did not justify continued prosecution, except if the consequence of the overlooked consultation process provided sound reason for continuing the prosecution. No evidence has been put forward either as to why no consultation took place after 24 February or as to the consequences of any consultation that did take place after 24 February. There is no justification for the failing of the CPS in relation to consultation after 24 February to be remedied by a decision to prosecute.

If there had been consultation and that consultation had been what underlay a change of position, the position might have been different, but as it is there is no connection between the substantive reason that can be relied on for the change of heart and the decision to continue the prosecution. So there is no good reason for the CPS change of position.

In my judgment there are therefore parallels with the Bloomfield case in that the court was told what the position was. It adjourned the proceedings for two days in order to enable the applicant to attend. Had it known what might happen, it might well have adjourned it merely until the afternoon or for an hour or so to enable the applicant to attend. I have also the concern that if the granting of short adjournments to enable somebody to attend for the working out of agreement puts the whole agreement at risk, there would be much greater need for defendants to attend on occasions when otherwise they might not need to, considerably adding to the cost and burden of summary cases.

In my judgment it would be an affront to justice for it to be held, as in reality I would have to hold, that the fact that there had been an adjournment placed the claimant in a position that he would not otherwise have been in simply because he had not attended, as is a common and sensible practice on such occasions. The adjournment was not to enable the CPS to consider its position and there was no reservation entered on the 24 February to enable further consideration to be given, if it was so desired, to the position otherwise agreed.

I regard it as also problematic for the CPS that the reason given has led to no action, and again I regard it as an affront to justice if it said it had to change its mind because there was no consultation, and yet the consultation had still not taken place. The need for consultation asserted but then never acted on, could not justify the CPS change of position. Effectively by 24 February there was a clear promise not to proceed if the issues now resolved in favour of the claimant were resolved. They would be going back on what was agreed without good reason in the end.

I have considered whether it would be appropriate in those circumstances to quash the prosecution decision to proceed but enabling the CPS to take the decision again after they had carried out the consultation with the complainant, but I have decided not to do that. First, the CPS has had ample opportunity to undertake the consultation both before March 16 and indeed subsequently and secondly, as Mr Tucker points out, there is nothing in the face of the reasons given on 31 March 2010 by the CPS to suggest that the basis of the decision on 24 February was other than that the complainant was willing and able to give evidence in accordance with her statement, and that is all that the lawyer says is now the position. So consultation could not lead to a change in the CPS understanding of the willingness of the complainant to give evidence in accordance with the statement.

Secondly, the agreement is on its face a perfectly sensible agreement in relation to the breakdown of a long-term marriage in which, with particular importance being given to that by the fact that it was the District Judge who suggested this solution in the first place and a different District Judge was perfectly willing to see the matter proceed in that way and adjourned it so that it should. It is also easy to see reasons why, following the breakdown of a 30-year marriage with understandable distress and anxiety, where the defendant has no previous convictions and has already been acquitted of an assault charge brought by his wife who was willing to and did give evidence against him, the CPS might accept the sense of the restraining order which the claimant was willing to accept even though the wife may say she is willing to go on.

Accordingly, for those reasons and emphasising as with all these cases that it depends very much on the particular facts, I have concluded that it would be unfair as an abuse of process to try this defendant and that, on the basis of the claimant's continued willingness to accept a restraining order, the CPS must offer no evidence against him. Of course if the defendant changes his mind then there is no reason why the case should not proceed. It is an abuse of process to continue the proceedings in a way other than that which was agreed, but that necessarily applies to both parties.

Thank you. I am sorry it has taken so long.