§ 'Where in criminal proceedings the prosecution has any excluded material which has been removed from the possession or control of a person accused in those proceedings, and an application is made at any stage of the proceedings by the accused person that such removal was an abuse of the process of the court, the court—
- (a) where the removal was unlawful, shall and
- (b) where the removal was lawful, may order that the proceedings against the accused person be stayed.'.—[Mr. Alex Carideo]
§ Brought up, and read the First time.
§ Mr. Alex CarlileI beg to move, That the clause be read a Second time.
The hour is late and a great deal of work remains to he done. Believe it or not after the debate of the last hour or so, we are still discussing the Police and Criminal Evidence Bill. I am not diluting the importance of new clause 24 if I move its Second Reading quickly. It is designed to overcome the decision of the Court of Appeal in the case of Regina v. Heston-Francois, which was reported in [1984], 1 All England Reports, at page 785.
It has long been the practice in civil actions in the High Court for the defendant to the claim to be able to make an application to strike out a claim that is frivolous, vexatious, or an abuse of the process of the court in any way other than being frivolous or vexatious. It is a jurisdiction which the courts have frequently exercised. Although precise figures of such cases are not readily available, even claims made by or on behalf of Government Departments have occasionally been struck out for being an abuse of the process of the court.
As a result of the case of Heston-Francois, it appears that, in contradistinction to the circumstances in civil proceedings, where a case can be struck out for being an abuse of the court's process, in criminal proceedings there is no preliminary jurisdiction to strike out a prosecution to stop it before it is proceeded with, on indictment, on the ground that it is an abuse of the process of the court. As a result, it is possible that trials will be proceeded with when the Crown has acted quite disgracefully.
I shall use the case of Heston-Francois as example. The conduct complained of involved police searching premises in relation to an offence charged against the accused, finding files that related to the accused person's defence on an entirely different charge and taking them away and handing them over to police officers involved in the first charge. That was such an abuse of the process of the court, and such monstrous misbehaviour, that the prosecution should not have been entitled to proceed with the trial of the charge to which the removed documents related. At the very least, at the preliminary stage the court should have the discretion in such circumstances to prohibit the prosecution from proceeding. The Court of Appeal held in the case of R v. Heston-Francois that there was not even such a discretion.
There have been cases in the past in which the prosecution was not allowed to proceed. I recall a case in which, as prosecuting counsel, I was forbidden by a High Court judge from proceeding with a prosecution on the ground that there had been an abuse of the process of the court by the Crown. It was thought that the power could be exercised, and it was exercised in some cases. Now we find that that may not be so.
257 It is fundamentally offensive for the Crown to be entitled to proceed in criminal proceedings when there has been monstrous misbehaviour of the type which I have mentioned and which is illustrated in the case that I mentioned.
I hope that we shall hear from the Minister that at least the principle of the new clause is acceptable. Otherwise, I fear that we must force the House to a Division.
§ Mr. HurdI shall outline the present law briefly, starting at a slightly earlier point than the hon. and learned Member for Montgomery (Mr. Carlile). In 1964, in the course of his speech in the case of Connelly v. DPP, Lord Devlin added to the accepted grounds for a stay of proceedings — that, where criminal proceedings constitute an abuse of process the court may refuse to allow the indictment to go for trial. All of the noble and learned Lords who gave judgment in Connelly were agreed that the court has a general and inherent power to protect its process from abuse and that that includes a power to safeguard an accused person from oppression or prejudice.
The question raised by the new clause is whether the seizure by the prosecution of excludable material from the accused amounts to an abuse of the court process and, if so, whether it is necessary to enshrine in statute a pre-trial review procedure, together with the power to order a stay of proceedings as a sanction against such activities by the police.
As the hon. and learned Member for Montgomery has told us, the issue was the subject of a recent judgment in the case of R v. Heston-Francois. The police had seized documents prepared for the accused's defence. Before arraignment, the defendant alleged that the prosecution was guilty of oppressive conduct that was said to constitute an abuse of the court's process. The trial judge refused a pre-trial review on the issue and the accused was convicted.
On appeal, the Court of Appeal held that the trial judge was under no special duty to conduct a pre-trial inquiry on that issue, either on agreed facts or after hearing evidence, and on so finding to exercise discretion on whether to stay the proceedings. The Court of Appeal took the view that such conduct by the prosecution falls to be dealt with in the trial, whether by judicial control on the admissibility of evidence, or by the judicial power to direct, usually at the close of the prosecution's case, a verdict of not guilty, or by the jury taking account of it in evaluating the evidence before them.
Naturally, the court, as one would expect, affirmed that the unlawful and unjustified seizure of the defendant's documents should not occur and was, in the words of the judgment:
deserving of censure, and probably the activation of the police disciplinary code".That seems to be the sensible and proper view to take on the matter.The hon. and learned Member for Montgomery clearly believes— I have heard him say so in Committee in other contexts — that the best way to control police behaviour is through the sanction of a stay of proceedings. We do not agree that that prospect is a more effective deterrent to police misconduct than the existing prospects of the officer facing disciplinary proceedings, possibly losing his job and perhaps facing separate criminal and 258 civil proceedings. We would be misunderstanding human nature to suppose that those deterrents are lesser ones than the stay of proceedings sought by the hon. Gentleman. The court's inherent powers already provide protection to the accused from an abuse of process. The new clause would materially alter the role of the judge and the function of the trial in our criminal justice system—
§ Mr. Alex CarlileWill the right hon. Gentleman tell us in what way the court's inherent powers can be operated to prevent an abuse of the process of the court, in the light of the Heston-Francois decision? My understanding of the effect of that decision is that the trial judge should not consider such applications any more but should deal with the issues arising in them in some way during the trial, presumably when the evidence is being given, is about to be given, or has just been given.
§ Mr. HurdI listed in my account of the judgment the three ways in which the court believed that there was a remedy during the trial.
The new clause, in trying to deal with the situation, would materially alter the role of the judge and the function of the trial in our criminal justice system in a way that we, and I believe the judges, would regard as unsatisfactory, by turning it into an instrument for disciplining the police. I therefore urge the House to reject the new clause.
§ Mr. Stuart Holland (Vauxhall)Heston-Francois was one of my constituents. I stress to the Minister that the situation was inadequate. I have raised the case several times on the Floor of the House, as well as when his appeal was thrown out in the other place. I wrote to the Minister about it, expressing grave concern and asking whether he would clarify or re-issue instructions to the police on the search of premises.
In the Heston-Francois case, the premises were entered and his defence files taken away by the local police, who then made them available to police at another police station, who were so inadvertent and careless that they returned the files first to Brixton police station and then to Mr. Francois himself with a photocopied note saying, "Thank you very much for sight of the Francois files. Do contact us further if necessary on another phone number." In such a case, when the man's defence files had been seen, and it is clear that he could not defend himself, the Minister and the House must reflect on the seriousness of the sitution, where a series of appeals had been made and rejected, and where the individual concerned languished at pleasure in detainment at one of Her Majesty's prisons without having been able properly to defend himself.
I urge the Minister to reconsider the matter. It is just conceivable that he could consider it under new clause 29, on the search of premises. The situation is inadequate. It is a blatant miscarriage of the natural principles of justice for which this country is renowned. For the Minister to reply that he cannot even issue instructions to the police in such matters is quite unacceptable.
§ Mr. Alex CarlileWith the leave of the House, I should like to make one fundamental point in reply to the Minister.
The Minister is saying that if the prosecution has committed a monstrous act against justice amounting to an abuse of the process of the court, it is adequate to leave 259 that to police disciplinary procedures, which, with great respect to the Minister, is unworthy both of him and of the House. Surely the position should be exactly as it is in civil proceedings, when important issues may also be involved. If there is an abuse of the process of the court—such extreme conduct as to fall clearly within that category—the prosecution should be forbidden from proceeding.
§ Mr. CarlileI am obliged to the hon. Member for reminding me that in civil proceedings it is necessary to go to court with clean hands. Why should the prosecution — the guardian of the public conscience, which sets public standards and asks the jury to confirm them—not also be required to go to court with clean hands?
§ Question put, That the clause be read a Second time:—
§ The House divided: Ayes 33, Noes 186.
260| Division No. 301] | [11.50 pm |
| AYES | |
| Alton, David | Loyden, Edward |
| Ashdown, Paddy | Madden, Max |
| Banks, Tony (Newham NW) | Marek, Dr John |
| Barron, Kevin | Maxton, John |
| Bell, Stuart | Nellist, David |
| Bermingham, Gerald | Parry, Robert |
| Bruce, Malcolm | Penhaligon, David |
| Campbell-Savours, Dale | Randall, Stuart |
| Carlile, Alexander (Montg'y) | Rogers, Allan |
| Cook, Robin F. (Livingston) | Ross, Stephen (Isle of Wight) |
| Corbett, Robin | Skinner, Dennis |
| Davis, Terry (B'ham, H'ge H'l) | Smith, Cyril (Rochdale) |
| Dubs, Alfred | Steel, Rt Hon David |
| Fisher, Mark | Wallace, James |
| Holland, Stuart (Vauxhall) | |
| Howells, Geraint | Tellers for the Ayes; |
| Hughes, Simon (Southwark) | Mr. Alan Beith and |
| Kaufman, Rt Hon Gerald | Mr. Robert Maclennan. |
| Kirkwood, Archibald |
| NOES | |
| Alexander, Richard | Butler, Hon Adam |
| Amess, David | Carlisle, John (N Luton) |
| Ancram, Michael | Carlisle, Kenneth (Lincoln) |
| Arnold, Tom | Carttiss, Michael |
| Ashby, David | Cash, William |
| Atkinson, David (B'm'th E) | Chalker, Mrs Lynda |
| Baker, Nicholas (N Dorset) | Chapman, Sydney |
| Baldry, Anthony | Chope, Christopher |
| Batiste, Spencer | Clark, Dr Michael (Rochford) |
| Beaumont-Dark, Anthony | Clarke, Rt Hon K. (Rushcliffe) |
| Bellingham, Henry | Conway, Derek |
| Bendall, Vivian | Coombs, Simon |
| Benyon, William | Cope, John |
| Berry, Sir Anthony. | Corrie, John |
| Biffen, Rt Hon John | Couchman, James |
| Biggs-Davison, Sir John | Cranborne, Viscount |
| Blaker, Rt Hon Sir Peter | Currie, Mrs Edwina |
| Bonsor, Sir Nicholas | Dorrell, Stephen |
| Boscawen, Hon Robert | du Cann, Rt Hon Edward |
| Bottomley, Peter | Dunn, Robert |
| Bottomley, Mrs Virginia | Dykes, Hugh |
| Bowden, A. (Brighton K'to'n) | Eggar, Tim |
| Bowden, Gerald (Dulwich) | Evennett, David |
| Braine, Sir Bernard | Eyre, Sir Reginald |
| Brandon-Bravo, Martin | Fairbairn, Nicholas |
| Brinton, Tim | Fallon, Michael |
| Brittan, Rt Hon Leon | Favell, Anthony |
| Brooke, Hon Peter | Fenner, Mrs Peggy |
| Brown, M. (Brigg & Cl'thpes) | Fookes, Miss Janet |
| Browne, John | Forman, Nigel |
| Bruinveis, Peter | Forsyth, Michael (Stirling) |
| Buck, Sir Antony | Fox, Marcus |
| Burt, Alistair | Franks, Cecil |
| Fraser, Peter (Angus East) | Moynihan, Hon C. |
| Gale, Roger | Newton, Tony |
| Galley, Roy | Nicholls, Patrick |
| Gardiner, George (Reigate) | Ottaway, Richard |
| Garel-Jones, Tristan | Powell, Rt Hon J. E. (S Down) |
| Goodhart, Sir Philip | Powley, John |
| Gorst, John | Raffan, Keith |
| Gregory, Conal | Robinson, Mark (N'port W) |
| Griffiths, E. (B'y St Edm'ds) | Ross, Wm. (Londonderry) |
| Griffiths, Peter (Portsm'th N) | Rumbold, Mrs Angela |
| Ground, Patrick | Ryder, Richard |
| Hamilton, Neil (Tatton) | Sackville, Hon Thomas |
| Hanley, Jeremy | Sainsbury, Hon Timothy |
| Hannam, John | Scott, Nicholas |
| Hargreaves, Kenneth | Shelton, William (Streatham) |
| Harvey, Robert | Sims, Roger |
| Hawksley, Warren | Smith, Tim (Beaconsfield) |
| Hayward, Robert | Smyth, Rev W. M. (Belfast S) |
| Heathcoat-Amory, David | Soames, Hon Nicholas |
| Henderson, Barry | Speed, Keith |
| Hickmet, Richard | Spencer, Derek |
| Hind, Kenneth | Squire, Robin |
| Hirst, Michael | Stanbrook, Ivor |
| Hogg, Hon Douglas (Gr'th'm) | Stanley, John |
| Holt, Richard | Steen, Anthony |
| Hooson, Tom | Stern, Michael |
| Howard, Michael | Stevens, Lewis (Nuneaton) |
| Howarth, Gerald (Cannock) | Stevens, Martin (Fulham) |
| Howell, Ralph (N Norfolk) | Stewart, Allan (Eastwood) |
| Hubbard-Miles, Peter | Stewart, Andrew (Sherwood) |
| Hunt, David (Wirral) | Stewart, Ian (N Hertf'dshire) |
| Hunt, John (Ravensbourne) | Sumberg, David |
| Hunter, Andrew | Taylor, Teddy (S'end E) |
| Hurd, Rt Hon Douglas | Temple-Morris, Peter |
| Johnson-Smith, Sir Geoffrey | Thompson, Donald (Calder V) |
| Jones, Robert (W Herts) | Thompson, Patrick (N'ich N) |
| Jopling, Rt Hon Michael | Thorne, Neil (Ilford S) |
| Kershaw, Sir Anthony | Tracey, Richard |
| Key, Robert | Trippier, David |
| King, Rt Hon Tom | van Straubenzee, Sir W. |
| Knight, Gregory (Derby N) | Viggers, Peter |
| Lamont, Norman | Wakeham, Rt Hon John |
| Lang, Ian | Waldegrave, Hon William |
| Latham, Michael | Walden, George |
| Lawler, Geoffrey | Walker, Cecil (Belfast N) |
| Lawrence, Ivan | Waller, Gary |
| Leigh, Edward (Gainsbor'gh) | Ward, John |
| Lennox-Boyd, Hon Mark | Wardle, C. (Bexhill) |
| Lilley, Peter | Watson, John |
| McCurley, Mrs Anna | Watts, John |
| MacGregor, John | Wells, Bowen (Hertford) |
| Maclean, David John | Wheeler, John |
| Maginnis, Ken | Whitfield, John |
| Major, John | Winterton, Mrs Ann |
| Malins, Humfrey | Winterton, Nicholas |
| Mather, Carol | Wolfson, Mark |
| Maxwell-Hyslop, Robin | Wood, Timothy |
| Mellor, David | Woodcock, Michael |
| Meyer, Sir Anthony | |
| Mills, Iain (Meriden) | Tellers for the Noes: |
| Molyneaux, Rt Hon James | Mr. Michael Neubert and |
| Moore, John | Mr. Archie Hamilton. |
§ Question accordingly negatived.