LEE v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The applicant, Mr Stephen Lee, is a United Kingdom national, who was born in 1970 and he lives in Windsor. He is represented before the Court by Mr J. Mackenzie, a solicitor practising in Henley-on-Thames. The facts of the case, as submitted by the parties, may be summarised as follows. At the relevant time, the applicant was a Lance Corporal in the British Army. On 31 May 1998 he was arrested by the civilian police who alleged that he had been drunk and disorderly. He was taken by the police to his army barracks and handed over to the military authorities. On 10 June 1998 he appeared before his commanding officer and was charged with drunkenness pursuant to section 43(1) of the Army Act 1955 (an offence which carried a maximum potential sentence of two years’ imprisonment). He subsequently appeared before that officer on 28 and 30 July 1998 and, on the latter date, he elected to be tried by court-martial as opposed to summary trial by his commanding officer. The commanding officer had the power to award a maximum of 28 days’ imprisonment on summary trial, although the Government submit that the commanding officer’s sentence following a conviction for drunkenness would generally have been limited to a fine, a reprimand, “a minor punishment” or a reduction to the ranks. Having opted for trial by court-martial, on 30 July 1998 the applicant’s case was referred to a higher authority and, in turn, on 5 August 1998 to the Army Prosecuting Authority. On 20 August 1998 this authority directed the applicant’s trial by district court-martial. In October 1998 the district court-martial was fixed to begin in January 1999. This trial date was postponed pending the outcome of an application by the applicant for leave to take judicial review proceedings concerning his legal aid. The judicial review application was heard in March 1999 and the court-martial was fixed for 26 July 1999, later moved to 28 July 1999 at the applicant’s request. The court-martial hearing was again re-fixed (to allow a full week for the hearing) for 23 August 1999. The applicant was legally represented. On that date and at the outset of the proceedings, the applicant applied for a stay of the proceedings claiming that the conduct of the prosecuting authorities amounted to an abuse of process. Having heard evidence over 3 days, on 25 August 1999 the Judge Advocate stayed the proceedings as an abuse of process. As to the meaning of abuse of process, he stated that: “It is now clear law that the courts have a power to stay proceedings where the continuance of those proceedings against a defendant constitutes an abuse of the court’s powers... Put shortly, the court has a general and inherent power to protect its process from abuse. This power must include a power to safeguard an accused person from oppression or prejudice ...The power to stay proceedings for an abuse of process has been said to include a power to safeguard an accused person from oppression or prejudice (Connelly v. DPP), and has been described as a formidable safeguard, developed by the common law, to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so (Attorney-General of Trinidad and Tobago v. Phillip [1995] 1 A.C. 396, PC). An abuse of process has been defined as “something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding” (Hui Chi-Ming v. R. [1992] 1 A.C. 34, PC).” The Judge Advocate found, in the first place, that the failure to disclose to the applicant video evidence of the incident leading to the applicant’s arrest, when he appeared before his commanding officer on 28 July 1999, was a breach of the applicable rules of procedure of such magnitude as to render the proceedings void. Secondly, he found that, on the evidence, the applicant’s election to be tried by court-martial had not been a free and valid one. As regards these two matters the Judge Advocate concluded: “True, there has been no illegality in the sense of a breach of the law, but there has been a very fundamental breach of the principles under which criminal justice is dispensed. True, [the applicant] has not had any other or more serious charge preferred against him, but he has had a long and no doubt anxious wait, undoubted expense and, more significantly, I could not guarantee that the court which has been ordered to try him would not punish him more severely than the [commanding officer] would have done if he was convicted. Furthermore, I cannot ignore the collected impact of the conduct of [the commanding and other officers], wittingly or unwittingly, in pressurising [the applicant] to accept the [commanding officer’s] award and by inference his guilt. For many years now the courts have fought strenuously to safeguard accused persons from being pressurised into pleading guilty and have rigorously excluded evidence obtained as a result of such pressure. These courts should not countenance service personnel being sent for trial as a result of such pressure. To do so would be to allow their process to be abused. It is for these reasons that I hold that the continuance of the proceedings against [the applicant] would be an abuse of process.” Thirdly, the Judge Advocate found, as regards the fact that the prosecution had taken and served on the defence a statement from the applicant’s defending officer: “I accept that ... what happened in this case was no breach of legal privilege, if indeed, legal privilege attaches to a defending officer... I accept that there was no substantial prejudice to the defence case. I accept that no one in the Army Prosecuting Authority proper knew that [he] was the defending officer until much later... I accept that identity would not have been an issue in the case. None of these things can have lessened the perception of [the applicant] as to the chances of justice from the military system when he became aware that his defending officer was to be called as a prosecution witness against him. It was an irregularity of such magnitude that in itself it justifies me in holding that the continuation of these proceedings would be an abuse of the process of this court.” The Judge Advocate went on to recommend that the applicant’s legal aid contributions and any other costs associated with the proceedings should be reimbursed to him. On 13 December 1999 the applicant instituted proceedings claiming damages against the civilian police and the Ministry of Defence for matters arising out of his arrest by the police and the conduct of the proceedings against him by the military authorities. The respective defences were filed in January and February 2000. The proceedings against the police were later settled by the payment to the applicant of GBP 7,500 in damages and costs. The current position as regards the proceedings against the Ministry of Defence is not known. All criminal courts, including courts-martial, have a wide common law jurisdiction to stay proceedings on the grounds of abuse of process. The application to stay proceedings is in the nature of a “plea in bar”, the more conventional “pleas in bar” being autrefois convict or autrefois acquit. A “plea in bar” operates to prevent a case proceeding to trial and, if raised, is ordinarily dealt with before the accused enters a plea to the charge. The ability of a trial judge to stay a criminal prosecution was first confirmed by the House of Lords in the case of Connelly v. Director of Public Prosecutions [1964] A.C. 1254. Lord Reid acknowledged the ability of a criminal court “to prevent a trial from taking place” in the exercise of its “residual discretion to prevent anything which savours of abuse of process” (at p. 1296). In the case of Director of Public Prosecutions v. Humphreys [1977] A.C. 1, Lord Salmon considered this discretion to be of “great constitutional importance” and a power which “should be jealously preserved”. Lord Woolf defined the discretion to stay proceedings as an abuse of process, in the case of Attorney-General of Trinidad and Tobago v. Phillip [1995] 1 A.C. 396, as: “... a formidable safeguard to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so”. In Hui Chi-Ming v. R [1992] 1 A.C. 34, Lord Lowry described an abuse of process as: “... something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all respects a regular proceeding”. The broad basis of this jurisdiction was confirmed by the House of Lords in R v. Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 A.C. 42, where it was held that proceedings may be stayed not only where a fair trial is impossible, but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. The case law was summarised by the Court of Appeal in R. v. Beckford [1996] 1 Cr.App.R. 94 (see Lord Justice Neill, at p. 100G-101A): “The jurisdiction to stay can be exercised in many different circumstances. Nevertheless two main strands can be detected in the authorities: (a) cases where the court concludes that the defendant cannot receive a fair trial; (b) cases where the court concludes that it would be unfair for the defendant to be tried”. Matters considered to constitute an abuse of process include: – unjustifiable delay which results in the defendant suffering serious prejudice to the extent that no fair trial can be held; – the trial of a defendant after extensive and prejudicial pre-trial publicity; – the trial of a defendant after the loss or destruction of relevant material by the prosecution; – where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place because the prosecution have been guilty of investigative impropriety; and – where the prosecution have otherwise been guilty of manipulation or misuse of the process of the court. There is no right for the prosecution to appeal against an order for a stay of a Crown Court trial or court-martial proceedings on the ground of abuse of process. The intention behind such a stay is that there should not be a trial in the future. There is no possibility of lifting a stay where the stay has been granted on the grounds that, due to the unconscionable conduct of the prosecuting authorities and even though the accused could receive a fair trial, it would nonetheless be unfair for the accused to be tried. Such a case could not be re-opened since it would always be an abuse of process to try the accused. The applicant does not dispute the Government’s submission that there are no known cases where a stay made on the grounds of abuse of process has been lifted to allow a prosecution to continue or where the prosecution has even applied for such a stay to be lifted. In R. v. Central Criminal Court ex p. Randle [1991] 1 WLR 1087, Lord Justice Watkins commented that a decision on an application to stay on grounds of abuse of process determines: “... whether there ever should be a trial ... [A] stay on grounds of abuse of process contemplates that there never will be a trial ... It matters not that there are circumstances in which a stay on grounds of abuse of process might be revoked or lifted: the crucial point is that such a stay -- a direction that there shall be no trial -- is intended to be final.”