Law Report: Prosecution was abuse of process: Regina v Croydon Justices, Ex parte Dean - Queen's Bench Divisional Court (Lord Justice Staughton and Mr Justice Buckley), 19 February 1993

Although the Crown Prosecution Service alone decided who should be prosecuted and the police had no authority and no right to tell a person that he would not be prosecuted for an offence, the prosecution of a person who had received a representation from the police that he would not be prosecuted was capable of being an abuse of process.

The Divisional Court declared that it was an abuse of process to proceed with a charge under section 4(1) of the Criminal Law Act 1967 against the applicant, George Dean.

Dean and two others were arrested on suspicion of murder. Dean, who was 17, was interviewed by the police over five weeks, and given to understand that he was to be a prosecution witness, although he did not receive any express promise, undertaking or offer of immunity. During the five weeks he assisted

the police and made witness statements.

The Crown Prosecution Service decided to charge Dean with doing acts with intent to impede the apprehension of another, contrary to section 4(1). At committal proceedings the justices rejected a submission that there was an abuse of process of the court because Dean had received an undertaking from the police that he would not be prosecuted in connection with the killing.

James Wadsworth QC and Robert Good (Bernstein Garcia) for Dean; Andrew Collins QC and Charles Miskin (CPS) for the prosecution.

LORD JUSTICE STAUGHTON said that an application to quash a committal should be made to the Crown Court before the start of the trial. However, in the present case if the court could decide the point on undisputed facts it should reach a decision in the judicial review application.

The CPS submitted that it alone was entitled, and bound to decide who should be prosecuted and that the police had no authority and no right to tell Dean that he would not be prosecuted for any offence connected with the murder. That submission could readily be accepted.

However, it could not be accepted that, in consequence, no such conduct by the police could ever give rise to an abuse of process. If the CPS found that its powers were being usurped by the police, the remedy must be a greater degree of liaison at an early stage.

The court was referred to cases which suggested that abuse of process in this context could only exist where there was (1) delay or (2) manipulation or misuse of the rules of procedure. In his Lordship's judgment the prosecution of a person who had received a promise, undertaking or representation from the police that he would not be prosecuted was capable of being an abuse of process. It was not essential that the promisor had power to decide or that the case was one of bad faith or something akin to that.

An affidavit from the CPS stated that the police had told Dean that he would not be prosecuted for offences associated with the murder. Having regard to the fact that Dean was only 17 at the time, although not a stranger to crime, it was clearly an abuse of process for him to be prosecuted.

The impression created that he was to be a prosecution witness was not dispelled over five weeks, during which he gave repeated assistance to the police. The case could be regarded as quite exceptional. The justices were bound to treat it as one of abuse of process. His committal for the section 4(1) offence would be quashed.

Mr Justice Buckley agreed.

Ying Hui Tan, Barrister