LG [2018] EWCA Crim 736
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In LG [2018] EWCA Crim 736 the Court of Appeal, Criminal Division allowed the Crown’s appeal against the stay of proceedings imposed by His Honour Judge Ward at Wolverhampton Crown Court on 26th February 2018.
The respondent had been summonsed in May 2017 to face one count of causing death by careless driving arising from an incident on 27th December 2010. On that evening, the respondent, then aged 20, was riding his 125cc motorcycle down Wolverhampton Street in Darlaston when he collided with Mr Lal, a pedestrian who was in the carriageway. The road was a 30mph single carriageway with good visibility and street lighting. Photographs showed snow on the pavements and gutters but the road itself was wet. Mr Lal, who had been drinking in a public house and was later found to have blood alcohol nearly twice the drink-drive limit, was wearing dark clothing. He was struck by the motorcycle and projected some distance, suffering catastrophic injuries including spinal cord injury and traumatic amputation of the right leg. He died either en route to hospital or shortly after arrival. The respondent himself was seriously injured. No witnesses saw the actual collision.
The respondent was interviewed at hospital on 28th December 2010 and again at the police station on 31st December 2010 but was never arrested or bailed. He stated that the pedestrian had walked along the gutter with his back to the motorcycle and then suddenly run across the road without looking. The respondent said he had been travelling at around 30mph, no more than 35mph, and acknowledged the road conditions should have led him to drive more slowly. He said he had not moved towards the centre of the road because he thought the pedestrian would wait. A detailed accident report was prepared by an experienced police investigator who attended the scene shortly after the incident. The investigator found no braking marks (unsurprising given wet conditions) and placed the collision point slightly before the Dorsett Road junction, which did not entirely accord with the respondent’s account. The investigator concluded the respondent had not been travelling significantly, if at all, in excess of 30mph. On 3rd June 2011 the Crown Prosecution Service decided to take no further action and the deceased’s family were notified, but the respondent himself was never formally told. An inquest was held in July 2011 at which the police investigator gave evidence and somewhat modified her speed estimate in the respondent’s favour. The respondent also gave evidence. The coroner appears to have returned a narrative verdict indicating that Mr Lal had stepped into the carriageway and the respondent had not taken avoiding action.
In May 2013 Mr Lal’s daughter wrote to West Midlands Police seeking the file and indicating a possible complaint about the police investigation. A complaint was made in July 2013. The Independent Police Complaints Commission investigated and on 13th June 2014 concluded that the original investigation had been carried out to proper standards. Mr Lal’s daughter appealed that decision in October 2014. After some delay, a report from an entirely new accident investigator was obtained, dated 13th June 2016. That report, based on momentum calculations, concluded the motorcycle’s speed immediately before impact was around 49mph. A summons was issued on 9th May 2017, some six and a half years after the incident.
In December 2017, before any trial date had been fixed, the respondent applied to stay the proceedings as an abuse of process on the grounds that he could not have a fair trial or that it was not fair for him to be tried at all. Judge Ward granted the stay in a detailed written ruling. He acknowledged that granting a stay was normally exceptional and that delay alone did not always preclude a fair trial, citing historic sex abuse cases. He observed, however, that this case was different because all the evidence had been available at the time, a decision had been taken not to prosecute, and the respondent was entitled to conclude after several years that he would not be prosecuted. The judge found fault on the part of the prosecution, stating that six years to review a 2011 decision was unconscionably long. Although he expressly found there had been no unequivocal representation that the respondent would not be prosecuted, he concluded that merely telling a jury to make allowances or reducing sentence on conviction did not address the issue in the particular circumstances. He stated he could not completely compartmentalise delay from the question of whether the prosecution had gone back on an implied promise not to prosecute. He concluded that this was an exceptional case in which a fair trial was not possible in 2018 and stayed the indictment.
The Crown appealed under section 58 of the Criminal Justice Act 2003. Lord Justice Davis, giving the judgment of the court, summarised the relevant legal principles. A stay was an exceptional remedy and a remedy of last resort. Unjustifiable delay did not of itself require a stay; it should be the exception even where delay was unjustified, citing Attorney General’s Reference (No 1 of 1990) 95 Cr App R 296. In limb one abuse cases (fair trial impossible), a stay should not ordinarily be granted absent serious prejudice that could not be remedied through the trial process. Where an indication had been given that there would be no prosecution, a stay would ordinarily not be granted unless there was an unequivocal representation and the defendant had acted to his detriment in reliance on it, citing R v Killick [2012] 1 Cr App R 10. A stay was not simply to punish prosecutorial default. Cases such as Warren v Attorney General for Jersey [2012] 1 AC 22 and R v Maxwell [2011] 2 Cr App R 31 demonstrated how difficult it was to sustain a limb two abuse argument (not fair to try at all) even in cases of significant misconduct.
The court held, with some reluctance but no real doubt, that the judge’s ruling could not stand. Lord Justice Davis identified several errors. First, aspects of the judge’s reasoning seemed to interweave elements of both limbs of abuse, although his ultimate focus appeared to be on limb one. Insofar as reliance was placed on limb two, there had been no suggestion of bad faith and the circumstances could not be said to be an affront to the integrity of the criminal justice system. The reality was a re-think, albeit after considerable delay, following a fresh expert report obtained in consequence of the complaint to the IPCC and the subsequent appeal. The court noted that the complaint arose from objections by the victim’s family, which was itself a relevant matter favouring refusal of a stay, as indicated in Killick. Second, there had been no unequivocal representation that the respondent would never be prosecuted; no express representation had been made to him at all. Whilst the respondent understandably assumed he would not be prosecuted, in the absence of detriment or prejudice that did not preclude the prosecution from reconsidering and commencing proceedings. Third, and most fundamentally, the key question was prejudice. The court emphasised that delay could give rise to potential prejudice that could nevertheless be accommodated within the trial process, as in many cases involving events occurring very many years earlier. No significant prejudice which could not be accommodated within the trial process had been identified. It was understandable that the respondent found it hard to face trial six years later when he reasonably thought there would be no trial, but that was not enough. There was no unequivocal representation and, crucially, no detrimental reliance had been identified. As matters stood, the respondent was in a position to defend himself and a fair trial could be had. No irremediable prejudice had been identified. It was possible that something might emerge during the trial demonstrating real prejudice, but that would be speculation. The court held that the judge had erred in principle by conflating aspects of the second and first limbs of abuse of process and had consequently failed to assess whether there was significant prejudice, over and above disappointed expectations, such that a fair trial could no longer be had.
Lord Justice Davis added that it was an important element of the interests of justice that conduct judged by those entrusted with the prosecutorial decision to be criminal with sufficient prospects of conviction should ordinarily be the subject of proceedings. The rights and interests of victims and their families were not simply to be subordinated to those of a defendant, and the public interest in prosecuting offences transcended considerations of punishing the prosecution for delay, always subject to delay not having given rise to significant prejudice that could not be accommodated by the trial process. The court also addressed extensive reliance on Article 6 of the Convention on Human Rights and cases such as Porter v Magill [2002] 2 AC 357, Dyer v Watson [2004] 1 AC 379 and Attorney General’s Reference No 2 of 2001 [2004] 1 AC 73, but observed that these authorities related to unreasonable delay after charges were brought or notification of likely prosecution, not to delay in the antecedent period before charges. In such circumstances Article 6 arguments added nothing; the matter was amply covered by well-established abuse of process principles which were themselves Convention-compliant.
In short, the court allowed the appeal and reversed the judge’s ruling on the basis that it involved an error of principle and resulted in a ruling which was not reasonable, and ordered that proceedings for the offence charged be resumed in the Crown Court.
Horseferry Road Magistrates’ Court ex parte Bennett [1994] 1 AC 42
R v Killick [2012] 1 Cr App R 10
Warren v Attorney General for Jersey [2012] 1 AC 22
Maxwell [2010] UKSC 48; [2011] 2 Cr. App. R. 31, [2011] 1 WLR 1837
Porter v Magill [2002] 2 AC 357, [2001] UKHL 67
Dyer v Watson [2004] 1 AC 379, [2002] UKPC D1, [2002] 3 WLR 1488