Josephus Oremi Cole [2019] EWCA Crim 1033

R v Josephus Oremi Cole [2019] EWCA Crim 1033 was an appeal to the Court of Appeal (Criminal Division) heard by the President of the Queen’s Bench Division, Sir Brian Leveson, Mr Justice Jeremy Baker and Mrs Justice Simler DBE, in which the court dismissed an appeal against conviction for fraud brought on abuse of process grounds.

The appellant had been convicted on 3 August 2018 in the Crown Court at Blackfriars before His Honour Judge Shetty and a jury of fraud contrary to section 1 of the Fraud Act 2006. He was sentenced to 20 months’ imprisonment. There was no challenge to the conduct of the trial itself. The sole ground of appeal, brought with leave of the single judge, was that Her Honour Judge Newbury had erred on 30 May 2018 in refusing to stay the prosecution as an abuse of process.

The fraud alleged concerned the complainant, Ms Lauretta Sowe, who worked for the United Nations and was based in Namibia. The Crown’s case was that the appellant had deceived her into transferring $20,000 into his bank account on 15 October 2015 on the false representation that it would be used as a deposit for a house purchase. The appellant and Ms Sowe had known each other in The Gambia and had briefly had a romantic relationship in 1997. They resumed contact in mid-2015 through a mutual friend and communicated frequently. The appellant was at the time renting a property at 38 Kingshill Drive, Hoo. His landlord had offered to sell the property to him at a discounted price in late 2014, but the appellant could not raise a deposit or obtain a mortgage because he was still named on the mortgage of the house he had occupied with his ex-wife. By 27 September 2015 the landlord had served notice on him to leave, though the deadline and offer to buy were later extended until 27 October 2015.

Ms Sowe gave evidence that she had been interested in investing in property in the United Kingdom as two of her children attended school there and she needed somewhere to stay when on leave. She said that she and the appellant discussed buying 38 Kingshill Drive together, with her providing money towards a deposit. She obtained a loan of $20,000 from her employers for that purpose. An email from Ms Sowe on 14 October 2015 expressed concern about what would happen to the money if “the rest of the deposit is not sourced.” The appellant responded stating that his mortgage adviser had found a mortgage he could obtain with a 5 per cent deposit and the application had been submitted. Ms Sowe then transferred $20,000 to the appellant on 15 October 2015. The Crown’s case was that on the appellant’s own account there was no prospect of him obtaining a mortgage with a 5 per cent deposit and he had lied to Ms Sowe to pressure her into making the transfer. Ms Sowe stated that after the transfer she was unable to contact the appellant. On 1 November 2015 she asked for the money to be returned as she needed it for her children’s school fees but received no response. The offer to purchase the property was withdrawn and possession proceedings were eventually pursued in the County Court. In interview on 3 July 2016 the appellant said that although he had intended to use the money as a house deposit, it had been essentially gifted to him by Ms Sowe, perhaps in an effort to “buy his love.” He denied any suggestion that he and Ms Sowe would buy the house together.

The appellant was charged and summonsed to attend court on 22 June 2017, where he consented to summary trial and pleaded not guilty. Trial was fixed for 17 August 2017, at which Ms Sowe attended, but the trial was not effective because a further bundle of evidence was served which included emails between the appellant and Ms Sowe and banking exhibits. It was concluded that there was insufficient time to complete the case and it was adjourned. A new trial date of 19 October 2017 was fixed. On 17 October 2017 the Crown applied in writing to vacate the trial because arrangements to fly Ms Sowe from Jamaica had not been completed and the cost of the flight had substantially increased. The Crown sought an adjournment until a more affordable flight could be purchased. There was no explanation of when these difficulties arose or why the application was made only two days before trial. The defence opposed the application and it was refused on the papers. On 18 October 2017 the Crown discontinued proceedings pursuant to section 23 of the Prosecution of Offences Act 1985. The notice of discontinuance stated that the decision had been taken because there was not enough evidence to provide a realistic prospect of conviction “at this stage” (the phrase was in bold and underlined). The letter warned that if more significant evidence or information was discovered later the decision to discontinue might be reconsidered, and that in rare cases a decision to discontinue might be reconsidered if a new look at the decision showed that it was clearly wrong. It also informed the appellant of his right to require the discontinued proceedings to be revived.

Ms Sowe then made a request pursuant to the Victim’s Right to Review. The matter was considered by a senior prosecutor and eventually by the Chief Crown Prosecutor. Towards the end of 2017 the Crown reinstated proceedings against the appellant and sent a summons requiring him to attend court on 11 January 2018, at which he elected trial in the Crown Court. The case summary served was identical to that served previously and there was no new evidence or information. The Crown advocate explained at the abuse of process hearing that following the notice of discontinuance Ms Sowe had complained by way of the Victim’s Right to Review scheme that it was not her fault that the case was discontinued and that she had been ready, willing and able to attend trial. The Crown advocate conceded that this was not new information but that it acted as a trigger for a reviewing lawyer to consider the notice of discontinuance. The reviewing lawyer decided in November 2017 that a hearsay application should have been made and that therefore the matter should not have been discontinued. The recommendation to reinstate the case was authorised by the Chief Crown Prosecutor on 30 November 2017.

Judge Newbury observed that the Crown Prosecution Service lawyer who discontinued the case must have considered that any hearsay application in respect of the complainant’s evidence would be bound to fail where all the key issues revolved around the credibility of her evidence. The Crown advocate agreed that the hearsay application was highly unlikely to succeed. The judge noted that the appellant did not revive the proceedings to insist on his trial taking place, and the Crown’s case was that he should have done. She observed that there was at the very least an irony in that had the decision been made to proceed with a hearsay application at the trial on 19 October 2017 it would very likely have failed and the appellant would very likely have been acquitted. She further noted that the practical effect of the notice of discontinuance and then the revival of the case subsequently had been to circumvent the refusal to adjourn made at the Magistrates’ Court, which may have been inadvertent but was said by the defence to constitute manipulation that offended the court’s sense of justice and propriety. The learned judge considered the relevant authorities and recognised that it was not always necessary to demonstrate bad faith if there was a deliberate decision to take advantage of a procedural rule. However, she was not prepared to infer that at the time the notice of discontinuance was issued it was always the intention to reinstate proceedings once the complainant could be available again. She distinguished the case from the authority of Wardle. 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 that the defendant be tried, she refused the application to stay.

In the Court of Appeal counsel for the appellant, Mr Robinson, did not challenge the judge’s finding that the discontinuance was not done with a view to avoid the consequences of the refusal to adjourn, and thus did not allege bad faith in that decision. He contended, however, that the decision to reinstate the case was made in circumstances which unfairly took advantage of the reason that the first case was discontinued. He submitted that although the ability to reinstate was a wide power, it should not go behind a magistrate’s refusal to grant an adjournment. Mr Robinson maintained that the application to read the complainant’s evidence as hearsay was likely, if not inevitably bound, to fail. The court observed that this proposition did not necessarily take full account of the fact that there was email traffic which by the stage of the hearing on 17 October had fully been served and was available for the court to consider, and which appeared to cast its own light on what was happening between the parties.

The court set out the Crown Prosecution Service guidance on the use of notices of discontinuance, which provided that fresh proceedings may be commenced if further evidence sufficient to provide a realistic prospect of conviction subsequently comes to light, and that proceedings may also be reinstituted following a review under the Victim’s Right to Review scheme where the prosecution conclude that the earlier decision was wrong in applying the evidential or public interest stages of the Full Code test and that for the maintenance of public confidence the decision must be reversed. The court noted that the view of the Crown Prosecution Service as reformulated was that the decision to discontinue was wrong, based upon the ability to pursue a potential hearsay application, whatever the eventual result might have been. The decision had to be seen in the context of the Right of Review exercised by Ms Sowe and the clear warning on the letter of discontinuance.

The court emphasised that it is abundantly clear that abuse of process is an exceptional step for the court to take, citing the observations in R v Maxwell [2010] UKSC 48; [2011] 1 WLR 1837 per Lord Dyson JSC at paragraph 13 that the remedy is exceptional. The court referred to R v Crawley [2014] EWCA Crim 1028; [2014] 2 Cr App R 16, which observed at paragraph 18 that there is a strong public interest in the prosecution of crime and in ensuring that those charged with serious criminal offences are tried, and that ordering a stay of proceedings, which in criminal law is effectively a permanent remedy, is thus a remedy of last resort. The court also quoted paragraph 23 of Crawley, which stated that where there has been alleged bad faith, unlawfulness or executive misconduct, the court is concerned not to create the perception that it is condoning malpractice by law enforcement agencies or to convey the impression that it will adopt the approach that the end justifies the means, the touchstone being the integrity of the criminal justice system, which must be balanced against the potential criticism that the court is failing to protect the public from grave crimes. The court noted that this explains why cases falling into this category will be very exceptional.

Given the concession that the argument that discontinuance was a decision made in bad faith was no longer maintained, the court reviewed the decision taken by the prosecuting lawyer in the context of the circumstances described. The court held that the fact that the Chief Crown Prosecutor decided that the decision was wrong did not fall within the category of cases identified by Maxwell or summarised in Crawley. Judge Newbury was correctly directed as to the law and reached the conclusion that the prosecution of the case did not constitute executive misconduct and was not an abuse of process. She was perfectly entitled to do so. In short, the appeal was dismissed as the decision to reinstate proceedings following a Victim’s Right to Review, though arguably circumventing the magistrates’ refusal to adjourn, did not constitute an abuse of process in the absence of bad faith.

Killick [2011] EWCA Crim 1608
Maxwell [2010] UKSC 48; [2011] 2 Cr. App. R. 31, [2011] 1 WLR 1837
Crawley and Others, ‘Operation Cotton’ [2014] EWCA Crim 1028; [2014] 2 Cr. App. R. 16
AG Ref No. 2 of 2001 [2003] UKHL 68; [2004] 1 Cr App R 25
Attorney General’s Reference (no.2 of 2001) [2004] 2 AC 72