Case No: 9603539 W4
Neutral Citation Number: [1996] EWCA Crim 1801
IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
Royal Courts of Justice
The Strand
London WC2

Date: Tuesday 25th June 1996

B E F O R E :

LORD JUSTICE STAUGHTON

MR JUSTICE IAN KENNEDY

and

HIS HONOUR JUDGE CRANE
(acting as a judge of the CACD)

Between:
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R E G I N A

‑ v ‑

MARK ANDREW BLOOMFIELD

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 404 1400   Fax No: 0171 404 1424
(Official Shorthand Writers to the Court)
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MR G BIRCH appeared on behalf of the Appellant
MR I WADE appeared on behalf of the Crown

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JUDGMENT

LORD JUSTICE STAUGHTON:  Mark Bloomfield pleaded guilty at Luton Crown Court, before Judge Findlay Baker, to an offence of possession of a Class A controlled drug.  On 23rd May 1996 he was sentenced to three months' imprisonment.  He was aged 33 at the time.  He had some previous offences recorded against him, but there is no renewed appeal against sentence today and, in any event, the document produced by the Hertfordshire police computer is virtually incomprehensible.
      The prosecution case against the appellant was that on the evening of 31st May 1995 police officers arrested him on suspicion of possession of drugs.  Asked if he had any drugs on him, he agreed that he had and a bag containing 100 Ecstasy tablets was removed from his pocket.
      When interviewed he said he had bought the tablets for his own use and to share with with his girlfriend.
      He was released on bail.
      He requested a further interview on 23rd July.  He stated that a woman, whom he named, had purported to give him the drugs for safe keeping as she was about to  be raided by the police.  He felt that he had been set up.
      The appellant's view of this matter is set out in his counsel's opinion.  He says that at about 8 o'clock on the evening of 31st May he had a phone call from a named woman who said she had heard over the police scanner that she was going to raided ‑ her house ‑ and asked him to pop up and see her.  He went to her house and she gave him these Ecstasy tablets, and asked him to keep hold of them till the next day.  He returned home at about 8.45pm ‑ that is three quarters of an hour after the initial telephone call ‑ and when he got there he was arrested.  He was subsequently charged with the offence of possession with intent to supply in relation to the Ecstasy tablets, and released on bail.
      An additional and lesser charge of simple possession was added later and the original charge of possession with intent to supply was withdrawn.
      Following committal the case was listed for plea and directions on 20th December 1995 at Luton Crown Court before Judge Marshall.  When they got there prosecuting counsel approached defence counsel and indicated, in the clearest of terms, that the Crown wished to offer no evidence against the defendant on the charge of possession.  This was because the prosecution  accepted the defendant's account as to how he came to be in possession of the 100 Ecstasy tablets.  They accepted that he had been the victim of a set up.
      We can add to that what Mr Wade has told us today, for the prosecution; that there was nobody from the Crown Prosecution Service present, only police officers, and that prosecuting counsel was inexperienced.
      We continue with the defendant's account.  He says that it was further explained that because of the presence at court of certain other people it would be embarrassing to the police and prosecution if no evidence were to be offered that day.  It was therefore suggested that if the plea and directions hearing could be adjourned to a later date, then no evidence would be offered at that adjourned hearing.
      Counsel then went to see the trial judge in his room.  A transcript of what was said in the judge's room has been obtained.  What prosecution counsel said was:
"What I would like to do today is to adjourn the plea and directions hearing and re‑list it 'for mention' to offer no evidence." 
The judge, with the approval of the defence, subsequently made that order in open court.  The defendant was fully informed and he was naturally very happy to cooperate.
      We do have the transcript of what took place that  day.  Prosecuting counsel said:
"I want to offer no evidence, but I do not want to do it today for the very simple reason which is that someone else who is involved in the wider police operation is present in this court building today.  He is someone who is aware of certain police practices and is likely to smell a rat if I stand up and offer no evidence today at this plea and directions hearing." 
      Then she continued:
"What I would like to do today is just adjourn the plea and directions hearing and re‑list it 'for mention' to offer no evidence.
 
JUDGE MARSHALL:  All right." 
      There are certain further facts that should be mentioned.  On 9th January 1996 defence counsel was told, apparently in chambers, by somebody for the prosecution, that the Crown Prosecution Service had decided not to adopt the course indicated on 20th December.  He got in touch with his solicitors and asked them to seek clarification, which they did by a letter to the Crown Prosecution Service on 12th January.
      The next thing that happened was that there were two letters from the Crown Prosecution Service, one of 17th and one of 24th January.  Those said, as we understand it, that the Crown Prosecution Service had arranged a conference with new prosecuting counsel and would thereafter inform the defence solicitors of the Crown's stance.  That was done on 8th February when the Crown Prosecution Service, by letter, indicated that the  Crown intended to continue the prosecution.
      There was a request by the defence solicitors for reasons, and the answer was that prosecuting counsel at the hearing on 20th December had no instructions from the Crown Prosecution Service to indicate that the Crown would offer no evidence.
      There was an application at the trial before Judge Findlay Baker to stay the proceedings as an abuse of process.  That was dismissed.  Following the failure of that application, Bloomfield pleaded guilty and was sentenced to three months' imprisonment.
      He applied for leave to appeal against conviction.  That was granted by a Single Judge.  He is recorded as saying that there was no argument in favour of an appeal, but it is agreed that he probably meant that there was an argument.
      The application for leave to appeal against sentence failed and has not been renewed.
      What Judge Findlay Baker said in his reasons for dismissing the application to stay was, in essence, as follows:
"One must necessarily ask whether there has been any prejudice to the defence in the course of the proceedings.  One must separately ask whether it would be manifestly unfair to the defendant in the circumstances to continue with the proceeding and one must also ask whether it would bring the administration of justice into dispute among right thinking people if the proceedings were to continue.
  
I have asked all those questions of myself and I have been addressed upon them.
 
I have come to the conclusion that although the defendant is understandably disappointed by the change of direction which this case has taken there is no prejudice to him by the continuation of the proceedings other than that inherent in the fact that he once again faces a criminal charge.
 
 I ask myself whether it would be manifestly unfair in the circumstances to continue with those proceedings and I conclude that it would not and I ask myself whether it would bring the administration of justice into disrepute if the change of course which the prosecution wish this case to take is permitted.  I think if anything the reverse is the case, but I do not have to go as far as that." 
The judge refused the application.
      There are, as it seems to us, two questions which have to be asked.  First, can the Crown Prosecution Service ‑ if you like, in the person of the Attorney General himself ‑ revoke a previous decision which he has made and has communicated to a defendant and the court to offer no evidence, or is it capable of being an abuse of process if the Crown seeks to do that?  The second question:  if the answer to the first question is that it may be an abuse of process, does it make any difference that it was not the Attorney General himself, or the Director of Public Prosecutions, but prosecuting counsel who made that decision and communicated it to the defendant in court without authority to do so?
      Taking the second question first, we have been  referred to the Farquharson Committee's recommendations on the role of Prosecuting Counsel and her relationship with the Crown Prosecution Service.  This is a topic of interest and importance, but we do not think that it is one that we need enter on today.  Whether prosecuting counsel was, or was not, doing the right thing, vis‑a‑vis those instructing her ‑ that is to say the Crown Prosecution Service ‑ and whether she had the discretion to act on her own views or not is not what we have to consider.  The question is whether the court, and for that matter the defendant, were entitled to assume that she had authority to say what she did say. We are of the view that prosecuting counsel has ostensible authority to conduct a case in court in any ordinary circumstances.  There is some discussion on the topic of the authority of counsel generally in Halsbury's Laws of England, Volume 3(1), paragraph 520 and 521, but this does not deal with the specific topic of the authority of prosecuting counsel in a criminal case.
      We do not see how the court can possibly be expected to enquire whether prosecuting counsel has or has not authority to say what she says in court.  Nor can a defendant be expected to enquire whether counsel prosecuting him has authority to say what she does say.  We would say that the court and the defendant are entitled to assume that she does have authority.
      Therefore we turn to the first question:  can the Crown Prosecution Service revoke a decision such as that that was taken in this case?  Mr Wade submits that the Crown has an unfettered right to prosecute, even if it has previously been said that the Crown do not intend to do so.  However, he concedes that there may be circumstances when the exercise of that right is capable of being an abuse of process.  In his submission prejudice is an essential feature of there being an abuse of process in such a case.
      We have been referred to three cases, and one more is before us.  The first is a decision of one member of this Court, together with Buckley J, in the Divisional Court, R. v. Croydon Justices Ex parte Dean [1993] QB 769.  That was a case where a young man aged 17 had been told that he would not be prosecuted for a particular crime, that he would be a prosecution witness, and where he had given considerable assistance to the police thereafter.  It was then sought to prosecute him for the offence of doing acts with intent to impede the apprehension of another.  The Divisional Court held that this was an abuse of process and that the committal should have been quashed.  At pages 777 and 778, in  giving my judgment in that case, I referred to a number of authorities, both in this Court and in other jurisdictions.  In particular I referred to a case in the Hong Kong Court of Appeal, Chu Piu‑wing v. Attorney General [1984] HKLR 411, where Vice President McMullin said, at page 417:
".....there is a clear public interest to be observed in holding officials of the State to promises made by them in full understanding of what is entailed by the bargain." 
      Next we were referred to the case of Attorney‑General of Trinidad and Tobago v. Phillip [1994] 3 WLR 1134.  We do not find anything in that case which is of any assistance.
      There is another case from Hong Kong, R. v. Harris [1991] 1 HKLR 389.  That was a case of a man employed in the Attorney General's chambers who was accused of some misdemeanour of a sexual nature.  He had been told at a meeting with the Attorney General himself and the Director of Public Prosecutions (see page 393):
".....that there was to be no criminal prosecution and  ‑ although this is wrongly set out in the trial judge's ruling, the only flaw in an otherwise excellent and commendable transcript and reasons ‑ he was further told that if his conduct had been found to amount to being criminal then a prosecution would have been brought.  He was told that his position in Chambers was untenable.
 
The appellant's services were later terminated by mutual resolution of contract.  It is unnecessary to go into the details of that as it is not suggested by Mr Scrivener, who with Mr Plowman, appeared for the  appellant in this Court that the appellant has suffered real prejudice by the subsequent mounting of the prosecution." 
The Court of Appeal of Hong Kong held that the prosecution in that case had rightly been allowed to go ahead.
      At page 397 in the judgment of Vice President Silke there are these two passages.  First he said:
"I accept that a Court is entitled to safeguard its process from abuse.  But it is a grave and serious matter for a Court to refuse jurisdiction." 
      Later:
"I would accept that it is unnecessary for the appellant in order to succeed to prove prejudice." 
      The fact that a judge accepts something may mean simply that it is unnecessary to decide the contrary. It is not necessarily an authority for the proposition which is accepted.
      Finally, there is the case of R. v. Mahdi, in this Court on 15th March 1993 before Lord Taylor CJ and Pill and Sedley JJ.  That was a case with a considerable history.  There was delay.  Eventually there came a time when it came before Judge Clarkson, and it was still not ready.  He said:
".....it is to be recorded that this is the last time that there will be an adjournment for the benefit of the prosecution." 
On the papers the judge wrote: 
"I indicated to parties no further adjournment would be granted to the prosecution and that the case must be ready at the resumed hearing or else." 
      Some time later the case came back again and was still not ready.  This time before Judge Sich.  He said:
"I am afraid that I see no alternative but to implement the clear intention of Judge Clarkson of 27th August. I therefore invite the prosecution to consider their position very carefully, and in the light of that I think the only proper course for them is to offer no evidence on this indictment.  If they choose not to do that, then I think the defence will have to apply for a stay of proceedings on the grounds of abuse of process." 
      He did not do that on the same day, and the case came back a third time before an Assistant Recorder. He, according to the judgment, approached the matter on the basis that the case should go forward unless it could be demonstrated by the appellant that he would be seriously prejudiced if the trial proceeded.  Then Lord Taylor said:
"We have considered the circumstances of this case with some anxiety.  We have been referred to the well‑known authorities on the issue of abuse of process.  In our judgment this case does not come within the scope of those authorities.  Nevertheless, we feel that in the very special and exceptional circumstances of this case the submission made by Mr Akinjide ought to be upheld. We consider that had the Assistant Recorder been fully and properly informed of the course which had been taken before by two senior judges he would in all probability have followed the course which each of those learned judges indicated they would have followed had the matter come back before them.
 
We are not, in saying this, seeking to establish any precedent, nor do we seek to bring this particular case  within any general principle in regard to abuse of process.  We simply find that in the exceptional circumstances of this case an injustice was inadvertantly done to this appellant by reason of the lack of accurate information placed before the Assistant Recorder." 
      So the conviction was quashed.
      Mr Wade has also referred us to the Code for Crown Prosecutors.  This is authorised, and required, by section 10(1) of the Prosecution of Offences Act 1985, which says:
"The Director shall issue a Code for Crown Prosecutors giving guidance on general principles....." 
That, as it seems to us, is not law.  It is not even delegated legislation.  It is what it says:  a Code giving guidance on general principles for Crown prosecutors issued by the Director.
      The Code says, in paragraph 10.1:
"People should be able to rely on decisions taken by the Crown Prosecution Service.  Normally, if the Crown Prosecution Service tells a suspect or defendant that there will not be a prosecution, or that the prosecution has been stopped, that is the end of the matter and the case will not start again.  But occasionally there are special reasons why the Crown Prosecution Service will re‑start the prosecution, particularly if the case is serious.
 
10.2  These reasons include:
(a) rare cases where a new look at the original decision shows that it was clearly wrong and should not be allowed to stand;
(b) cases which are stopped so that more evidence which is likely to become available in the fairly near future can be collected and prepared.  In these cases, the Crown Prosecutor will tell the defendant that the  prosecution may well start again;
(c) cases which are stopped because of a lack of evidence but where more significant evidence is discovered later." 
      We do not know whether this case comes into any of those categories.  Nobody has shown to us that the original decision was clearly wrong.  Nobody has attempted to show to us that the original decision was clearly wrong.  All that we have been told is that it was unauthorised.
      Before we regard ourselves as required to approve and follow the Code of Crown Prosecutors, we should at least be told something more than that the decision was unauthorised.  In the absence of any information, we are faced with the fact that the decision was taken and then revoked without any reason being given as to why the earlier decision was wrong.
      The next point taken by Mr Wade was that once the application to stay had been refused, the defendant pleaded guilty.  That, he says, shows that it cannot have been an abuse of process to prosecute him.  There is the case of R. v. Schlesinger and Others [1995] Crim.L.R. 137, which may be said to show that it does not fail to be an abuse of process merely because a defendant pleads guilty; but the facts there were somewhat different.  On the other hand, as Ian Kennedy J  pointed out in the course of the argument, it is often the case that a defendant pleads guilty when some application made on his behalf fails, and that is not a bar to him appealing.  And as Judge Crane pointed out, it cannot be right that he had to plead not guilty in order to preserve his right of appeal against the refusal of a stay.
      Finally we were referred to section 23(a) of the Prosecution of Offences Act 1985 which provides, in subsection (9):
"The discontinuance of any proceedings by virtue of this section shall not prevent the institution of fresh proceedings in respect of the same offence." 
      The answer to that is, first, that it only applies to Magistrates' Courts and, secondly, it refers to discontinuance rather than offering no evidence and, thirdly, it contains express provision in subsection (7) that the defendant can oppose discontinuance and insist on the prosecution continuing.  If that had happened in this case it would seem certainly possible, and perhaps even likely, that no evidence would have been called seeing that the Crown were embarrassed by the presence of somebody in court.
      Looking at the case in the round, it seems to us that this is an unusual and special situation.  The decision to defer the trial on 20th December was taken  for the benefit of the prosecution in order that they would not be embarrassed when it was said in court that no evidence was being offered.  The statement of the prosecution that they would offer no evidence at the next hearing was not merely a statement made to the defendant or to his legal representative.  It was made coram judice, in the presence of the judge.  It seems to us that whether or not there was prejudice it would bring the administration of justice into disrepute if the Crown Prosecution Service were able to treat the court as if it were at its beck and call, free to tell it one day that it was not going to prosecute and another day that it was.
      Of course the circumstances of each case have to be looked at carefully, and many other factors considered.  As the Court said in the Mahdi decision, we are not seeking to establish any precedent or any general principle in regard to abuse of process.  We simply find that in the exceptional circumstances of this case an injustice was done to this appellant.  In those circumstances the appropriate course is to allow the appeal and quash this conviction.
 
MR WADE:  I wonder if your Lordship would, in the circumstances, give the Crown leave to consider its  position?
 
LORD JUSTICE STAUGHTON:  There is a time limit for this is there not?
 
MR WADE:  Yes.
 
LORD JUSTICE STAUGHTON:  We are not all going to be here next week.  We can hear any application you may have to make this week or by arrangement next week as well.
 
MR WADE:  If I may take it your Lordship is granting us 14 days.  I would grasp matters and see if we could arrange a reconstitution of this Court in that time.
 
LORD JUSTICE STAUGHTON:  You have any time up to Friday week.
      I am not sure if we have power to grant extra time ‑ you had better look it up ‑ but from the point of view of convenience, there will be no problem about hearing you any time up to Friday week.
 
MR WADE:  I am obliged.