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Duncan Lewis Solicitors recently acted in Regina v K, at St Albans Crown Court, in which the exceptional abuse of process jurisdiction was invoked to stay proceedings. The case involved allegations of historic sexual abuse between two half-brothers that were the subject of a police investigation in 2007. Originally, the investigation had concluded and a social services disposal followed, when both of the parties were young children, aged 12 and 9 years old respectively.

Chris Whitehouse, Farringdon Chambers, was instructed Counsel, and argued that the assurance from the police that no prosecution would be brought amounted to a promise that was breached by the current prosecution. Whitehouse further argued that the social services disposal and the steps taken to address the situation amounted to detrimental reliance on the promise. Whitehouse further developed his argument that the passage of time and detrimental reliance on the assurance had occasioned irremediable prejudice to the trial process.

The defendant had engaged with the local authorities fully, including attending a course of counselling over a number of years. The defendant had spoken freely with his counsellors in the knowledge that there was no police involvement; the prosecution proposed to rely on this evidence at trial which further underlined the unfairness in the prosecution.

The prosecution argued that a stay should only be granted if either defendant had faced a final determination of guilt in respect of an offence (akin to autrefois convict/acquit) or where it would offend the court’s sense of justice to try the recipient of a promise not to prosecute. In the latter instance, they argued that detrimental reliance / prejudice to the defendant was required. The prosecution contended that a social services disposal did not amount to prejudice to the defendant as it had a different focus than a non-custodial court disposal, and that the representation made was not unequivocal. They proposed to deal with any unfairness in the prosecution through not proceeding to indict the defendant on lesser counts, allegedly supported by the evidence, in respect of which the defendant had initially made admissions. However, the prosecution’s arguments were ultimately rejected.

Central to HHJ Plumstead’s judgment was that the 9-year period had spanned the defendant maturing from a child to an adult, and that he had lived through the majority of that time period in the understanding that he would not be prosecuted in respect of the substance of the allegations made when he was just 12 years old. The defendant had suffered prejudice in being removed from his family at a young age and further in attending social services counselling for a significant period; the latter process deemed to have many of the hallmarks of engaging in a supervision order. The defendant’s co-operation had been induced by there being no pending prosecution. There were no contemporaneous records of the specific terms in which the complainant made the original complaint, and recent statements taken relating to the matter from supporting witnesses provided differing accounts, implying that the quality of evidence had deteriorated over time. When coupled with the original assurance that no prosecution would be brought when the initial allegations were first investigated 9 years ago, a prosecution solely over the disputed issue of penetration amounted to an abuse of process, the effect on the victim notwithstanding. The initial decision had not been unreasonable. The prosecution has declined to appeal the ruling, describing HHJ Plumstead’s reasoning as “unimpeachable”.

The abuse of process jurisdiction is exceptional and successful applications are rare. The case is an example of determined and focused representation on the part of the defence team avoiding an injustice.

Author Micheal McKee is a Trainee Solicitor at Duncan Lewis Solicitors. Micheal McKee was acting as instructing solicitor in this case. Micheal joined Duncan Lewis in 2015 as a caseworker and is currently undergoing his training contract with the firm at the Harrow branch. His experience in crime varies extensively from dealing with public order offences to murder cases and his passion for criminal law has been further demonstrated in his authoring of various articles on criminal law issues.