Josephus Oremi Cole [2019] EWCA Crim 1033

The appellant was convicted of fraud and sentenced to 20 months’ imprisonment. The appeal was based on a challenge to a decision to refuse to stay the prosecution as an abuse of process.

The case was initially listed for trial and the complainant attended but the hearing was ineffective and adjourned. Two days prior to the second trial date the Crown applied to adjourn as the cost of the flight to bring the witness from Jamaica has substantially increased. The application was refused and the Crown discontinued proceedings. The notice said that the decision was taken as there was “not enough evidence to provide a realistic prospect of conviction at this stage”, it went on to say that the decision could be reconsidered if more “significant evidence and/or information” was discovered at a later date.

The witness requested a review and proceedings were reinstated, the applicant electing crown court trial. There was no new evidence or information. The crown argued that the reviewing lawyer considered that a hearsay application should have been made and that the matter should not have been discontinued. The irony here was that had the decision been made to make a hearsay application it would have very likely failed, and the defendant would have been acquitted. The judge observed that a stay was a remedy of last resort and, being satisfied that a fair trial was possible and that it was in the public interest, the application to stay was refused.

The submission on appeal was that although the decision to reinstate was a wide power it should not go behind a magistrate’s refusal to grant an adjournment. Bad faith was not alleged, rather that the circumstances unfairly took advantage of the reason the case was first discontinued.

Held: given the concession that the bad faith argument was not maintained it is necessary to review the decision in the context of the circumstances described. The judge was correct as to the law, she reached the conclusion that the prosecution of the case did not constitute executive misconduct and was not an abuse of process. The appeal was dismissed.