Abuse of Process
YORKSHIRE-BASED fraud and business crime
solicitors Rahman Ravelli have been ranked in the elite in the worlds
most prestigious legal directory.
The firm, which has its head
office in Halifax and a base in the City of London, has been classed in
the Tier 1 group of crime lawyers by the authors of "The Legal 500". It
means that the highly-respected international directory has classed
Rahman Ravelli as one of the very best for handling national and
international fraud and corruption cases.
This year's edition of
the legal guide, released today (Thurs Sept 26), describes the Rahman
Ravelli legal team as being diligent and taking "a creative and
innovative approach to case preparation". The guide describes company
founder Aziz Rahman as "charismatic and indefatigable" and praises
Rahman Ravelli's Helen Lynch as a "true specialist" for her proceeds of
crime work.
Rahman Ravelli's London operation also gains
particular praise in the guide. The Legal 500 says one of the firm's
solicitors in the capital, Neil Williams, is "very proactive" and refers
to Aziz Rahman’s work in London as "very tactically aware".
The
Legal 500 has also announced today that Rahman Ravelli has been
shortlisted for the very first Legal 500 UK Awards. Winners will be
announced on October 2.
Aziz Rahman said: "This firm has worked
hard to reach the position we are in. We are delighted that our
dedication, hard work and great track record of success has been
recognised by The Legal 500.
"At Rahman Ravelli, we believe our
clients should be the ones to benefit from our work. But it is pleasing
for all of us to have gained such a prestigious ranking and the chance
of an award."
One of the leading cases in
this area is R (Ebrahim) v Feltham Magistrates’ Court; Mouat v DPP
[2001] 2 Cr. App. R, 23, DC. The High Court considered the situation
where the two defendants, in two separate cases had asserted that video
evidence would have assisted their defences but where the video
material was no longer available. In Mr. Mouat’s case he was videoed
by an unmarked police car exceeding the speed limit. His defence was
that he was trying to get away from a driver who was driving dangerously
close behind him and he had no idea it was a police car; i.e. duress
of circumstances. Once he stopped he was shown the video by the
officers and had the choice to accept a penalty or go to trial – he
elected trial. By the time of the trial the tapes in the police car had
been re-used. The High Court quashed Mr. Mouat’s conviction. Mr.
Ebrahim was not so fortunate. Ebrahim’s case concerned un-seized CCTV
material. On the facts of that case the Court found that the defendant
had a fair trial eventhough the CCTV material was missing. The Court
of Appeal said that when considering an abuse application on this basis a
Judge must consider what the duty was to preserve any video material.
If the court finds that there is no such duty for the material in
question to be seized or preserved then there can be no stay of the
prosecution. If, alternatively, there is such a duty, and it has been
breached, then the court can only consider staying the indictment as an
exceptional measure as the trial process itself can remedy the problem;
e.g. by the Judge warning the jury about missing evidence, or by him
excluding certain other evidence and so on. If, however, the police or
the prosecution appear to have acted with “bad faith or at the very
least some serious fault” then a stay may be more readily granted.
Two Categories of Abuse
In
considering the development of the case law it is clear that the Higher
Courts will sometimes use the abuse of process jurisdiction to
effectively ‘punish’ the police or prosecution for errors or faults.
This ‘serious fault’ limb of the abuse of process jurisdiction
highlights the way abuse applications fall into two broad categories;
Category 1 cases where the defendant cannot receive a fair trial, and
Category 2 cases where it would be unfair for the defendant to be tried:
see R v Beckford (1996) 1 Cr App R 94, 101. Thus, if evidence that
should have been seized by the police but now cannot be obtained, but
would have been helpful to the defence, then that is a ‘Category 1’
situation and the Judge could, exceptionally, stay the trial on the
basis that the defendant could not get a fair trial.
If, however, the
police had the material but maliciously destroyed it, then that would
be a ‘Category 2’ case and even though the defendant could get a fair
trial it would be unfair to try him – in as much as it would offend our
sense of justice and bring the administration of the criminal justice
system into disrepute to do so, see e.g. R v Mullen [1999] 1 AC 42, HL.
R
v Grant [2005] 2 Cr. App. R 28 is a Category 2 case. The police
eavesdropped on the communications of a suspect and his solicitor. The
Court held that unlawful acts of such a kind, amounting to a deliberate
violation of a suspect’s right to legal privilege were such an affront
to the integrity of the justice system that the prosecution was
rendered abusive. However, this case has now been expressly disapproved
by the Privy Council in Curtis Warren v Att. General for Jersey [2011] 2
ALL ER 513, PC. In that case the police had placed an audio probe in
the defendant's hire car which would be driven through a number of
overseas European countries. The police knew that permission from those
countries had been refused for the use of such devices but went ahead
anyway. The consequent abuse of process application failed, a decision
upheld on appeal. Much turned on the facts of the case but the Council
found that the Court of Appeal was wrong to say that deliberate invasion
of a suspect’s right to legal professional privilege should generally
lead to a stay; it may do but category 2 cases were always a balancing
exercise.
The use of undercover officers in covert operations often
leads to accusations of abuse of process on the basis that the officers
have entrapped or encouraged an offence to take place. This aspect of
abuse deserves a whole article to itself but, in very short order, the
Judge has to look to see if the undercover officer has ‘overstepped the
mark’; R v Loosely; Att. General’s Ref (No 3 of 2000) [2001] 1 WLR
2060, HL.
Disclosure
The area of disclosure has always been
the most contentious area of criminal litigation and most of the great
miscarriage of justice cases have turned on failures to disclose by the
prosecution. The House of Lords laid down final and conclusive
guidance on disclosure and Public Interest Immunity applications in the
case R v H & C [2004] 2 AC 134 (the authors represented ‘H’).
However,
it is a sad fact that today prosecutors are still not getting
disclosure right. With the pressure on the prosecution not to give the
defence the ‘warehouse keys’ there has been an over analysis of Defence
Statements and a willingness to conclude that no further disclosure is
necessary.
In a case called R v O [2007] EWCA Crim 3483 a Crown Court
Judge was so exasperated by H.M. Custom’s failure to properly respond
to the defence’s proper applications for disclosure he stayed the case
as an abuse of process. The prosecution appealed and the Court of Appeal
upheld the decision. The case was a fraud allegation where O was
simply asking for business documents held by customs after they had
searched his premises. Customs had been taking the line that most of the
material neither assisted the defence or undermined the prosecution
case and was therefore not disclosable and refused to even let the
defence have sight of the outer covers of the documents. The defence
were adamant that the business documents could assist. The Judge was
swayed by the obstructive nature of Customs, he did not even make a
decision on the merits of the material in question but was pushed in
the end to saying that Customs had relied too heavily on the precise
rule of law on disclosure, to the extent that they were inflexible and
obstructive. His Honour said “if the prosecution approach the case
without concession then they can expect none” and with that he threw the
case out.
In a case involving indecent images of children, the
defence solicitors wished to view the material and certain directions
were given by the court regarding disclosure. The prosecution were not
content with the security arrangements for the viewing and storage of
this sensitive material and refused to obey the order, the indictment
was stayed; R v R (L) [2010] 2 Cr. App. R 9, CA. The Lord Chief Justice
noted that there will be cases even were the defendant is in custody
where the prosecution will have to provide the material on CD so it can
be examined by the defendant with his lawyers in prison with
undertakings by the lawyers as to the use of the material.
The abuse
of process doctrine also applies to confiscation proceedings, though to a
more limited degree. The Court of Appeal has confirmed the Crown
Court’s jurisdiction to stay confiscation proceedings where, in limited
cases, the Crown’s application for confiscation amounted to oppression:
R v Morgan & Bygrave [2008] EWCA Crim 1323 (20/6/08), para 27. In
that case the defendant had substantially repaid the victim and the
confiscation proceedings in effect punished him twice over. However, the
Court of Appeal has since re-iterated that confiscation proceedings
are by design draconian and cases where such proceedings amount to an
abuse will be rare indeed; see R (BERR) v Lowe [2009] 2 Cr. App. R (S)
81, see now R v Nelson & Others [2010] 1 Cr. App. R (S) 82.
Conclusion
Abuse
of process applications should not be made lightly. However, they can
arise in any number of situations – too many to properly deal with in
this short article. What is required in any abuse application is
material and authorities upon which such an application can be properly
supported. This usually means early and focussed pressure on disclosure
where a possible abuse of process application might be made. In order
to persuade a court to stay an indictment a defendant has to have the
ammunition to support the application. That means the lawyers have to
be alive to the possibilities that might arise in any case and think
long-term; e.g. early written, and properly justified, requests for
material – when months later the Crown have failed to comply then the
ammunition is starting to build up enabling the defence to submit that
the defence are trying their best but facing difficulties form the
prosecution. In other words if there is any hint of an abuse of process
application then it must be kept at the forefront of the defending mind
from the very outset.
Jonathan Lennon is a Barrister specialising in
serious and complex criminal defence case at 23 Essex Street Chambers
in London. He is a contributing author to Covert Human Intelligence
Sources, (2008 Waterside Press) and has extensive experience in all
aspects of the Proceeds of Crime Act 2002.
Aziz Rahman is a
Solicitor- Advocate and Partner at the leading Criminal Defence firm
Rahman Ravelli Solicitors, specialising in Human Rights, Financial Crime
and Large Scale Conspiracies/Serious crime. Rahman Ravelli are members
of the Specialist Fraud Panel and have recently been ranked by Legal
500 as an 'excellent' firm with Aziz Rahman being described as 'first
class and very experienced'.
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Abuse of Process1 October 2012
When will a Judge throw a case out of Court because of the behaviour of the Prosecution?
There
are many reasons why a Judge might conclude that it would not be proper
for the courts to be used to prosecute a defendant. For example, delay
in bringing proceedings, manipulation of the court’s procedures,
entrapment by police officers, loss of evidence and so on. The
prosecution facing an abuse of process application will always argue
that the Judge can ensure fairness by, for example, excluding any
evidence which is causing dispute, or by warning the jury that the
defendant has been unable to call certain evidence because it has been
destroyed – in other words anything except throw the case out before it
even starts.
Leading Case
One of the leading cases in this
area is R (Ebrahim) v Feltham Magistrates’ Court; Mouat v DPP [2001] 2
Cr. App. R, 23, DC. The High Court considered the situation where the
two defendants, in two separate cases had asserted that video evidence
would have assisted their defences but where the video material was no
longer available. In Mr. Mouat’s case he was videoed by an unmarked
police car exceeding the speed limit. His defence was that he was trying
to get away from a driver who was driving dangerously close behind him
and he had no idea it was a police car; i.e. duress of circumstances.
Once he stopped he was shown the video by the officers and had the
choice to accept a penalty or go to trial – he elected trial. By the
time of the trial the tapes in the police car had been re-used. The
High Court quashed Mr. Mouat’s conviction. Mr. Ebrahim was not so
fortunate. Ebrahim’s case concerned un-seized CCTV material. On the
facts of that case the Court found that the defendant had a fair trial
eventhough the CCTV material was missing. The Court of Appeal said that
when considering an abuse application on this basis a Judge must
consider what the duty was to preserve any video material. If the court
finds that there is no such duty for the material in question to be
seized or preserved then there can be no stay of the prosecution. If,
alternatively, there is such a duty, and it has been breached, then the
court can only consider staying the indictment as an exceptional measure
as the trial process itself can remedy the problem; e.g. by the Judge
warning the jury about missing evidence, or by him excluding certain
other evidence and so on. If, however, the police or the prosecution
appear to have acted with “bad faith or at the very least some serious
fault” then a stay may be more readily granted.
Two Categories of Abuse
In
considering the development of the case law it is clear that the Higher
Courts will sometimes use the abuse of process jurisdiction to
effectively ‘punish’ the police or prosecution for errors or faults.
This ‘serious fault’ limb of the abuse of process jurisdiction
highlights the way abuse applications fall into two broad categories;
Category 1 cases where the defendant cannot receive a fair trial, and
Category 2 cases where it would be unfair for the defendant to be tried:
see R v Beckford (1996) 1 Cr App R 94, 101. Thus, if evidence that
should have been seized by the police but now cannot be obtained, but
would have been helpful to the defence, then that is a ‘Category 1’
situation and the Judge could, exceptionally, stay the trial on the
basis that the defendant could not get a fair trial.
If, however,
the police had the material but maliciously destroyed it, then that
would be a ‘Category 2’ case and even though the defendant could get a
fair trial it would be unfair to try him – in as much as it would
offend our sense of justice and bring the administration of the criminal
justice system into disrepute to do so, see e.g. R v Mullen [1999] 1 AC
42, HL.
R v Grant [2005] 2 Cr. App. R 28 is a Category 2 case.
The police eavesdropped on the communications of a suspect and his
solicitor. The Court held that unlawful acts of such a kind, amounting
to a deliberate violation of a suspect’s right to legal privilege were
such an affront to the integrity of the justice system that the
prosecution was rendered abusive. However, this case has now been
expressly disapproved by the Privy Council in Curtis Warren v Att.
General for Jersey [2011] 2 ALL ER 513, PC. In that case the police had
placed an audio probe in the defendant's hire car which would be driven
through a number of overseas European countries. The police knew that
permission from those countries had been refused for the use of such
devices but went ahead anyway. The consequent abuse of process
application failed, a decision upheld on appeal. Much turned on the
facts of the case but the Council found that the Court of Appeal was
wrong to say that deliberate invasion of a suspect’s right to legal
professional privilege should generally lead to a stay; it may do but
category 2 cases were always a balancing exercise.
The use of
undercover officers in covert operations often leads to accusations of
abuse of process on the basis that the officers have entrapped or
encouraged an offence to take place. This aspect of abuse deserves a
whole article to itself but, in very short order, the Judge has to look
to see if the undercover officer has ‘overstepped the mark’; R v
Loosely; Att. General’s Ref (No 3 of 2000) [2001] 1 WLR 2060, HL.
Disclosure
The
area of disclosure has always been the most contentious area of
criminal litigation and most of the great miscarriage of justice cases
have turned on failures to disclose by the prosecution. The House of
Lords laid down final and conclusive guidance on disclosure and Public
Interest Immunity applications in the case R v H & C [2004] 2 AC 134
(the authors represented ‘H’).
However, it is a sad fact that
today prosecutors are still not getting disclosure right. With the
pressure on the prosecution not to give the defence the ‘warehouse keys’
there has been an over analysis of Defence Statements and a
willingness to conclude that no further disclosure is necessary.
In
a case called R v O [2007] EWCA Crim 3483 a Crown Court Judge was so
exasperated by H.M. Custom’s failure to properly respond to the
defence’s proper applications for disclosure he stayed the case as an
abuse of process. The prosecution appealed and the Court of Appeal
upheld the decision. The case was a fraud allegation where O was
simply asking for business documents held by customs after they had
searched his premises. Customs had been taking the line that most of the
material neither assisted the defence or undermined the prosecution
case and was therefore not disclosable and refused to even let the
defence have sight of the outer covers of the documents. The defence
were adamant that the business documents could assist. The Judge was
swayed by the obstructive nature of Customs, he did not even make a
decision on the merits of the material in question but was pushed in
the end to saying that Customs had relied too heavily on the precise
rule of law on disclosure, to the extent that they were inflexible and
obstructive. His Honour said “if the prosecution approach the case
without concession then they can expect none” and with that he threw the
case out.
In a case involving indecent images of children, the
defence solicitors wished to view the material and certain directions
were given by the court regarding disclosure. The prosecution were not
content with the security arrangements for the viewing and storage of
this sensitive material and refused to obey the order, the indictment
was stayed; R v R (L) [2010] 2 Cr. App. R 9, CA. The Lord Chief Justice
noted that there will be cases even were the defendant is in custody
where the prosecution will have to provide the material on CD so it can
be examined by the defendant with his lawyers in prison with
undertakings by the lawyers as to the use of the material.
The
abuse of process doctrine also applies to confiscation proceedings,
though to a more limited degree. The Court of Appeal has confirmed the
Crown Court’s jurisdiction to stay confiscation proceedings where, in
limited cases, the Crown’s application for confiscation amounted to
oppression: R v Morgan & Bygrave [2008] EWCA Crim 1323 (20/6/08),
para 27. In that case the defendant had substantially repaid the victim
and the confiscation proceedings in effect punished him twice over.
However, the Court of Appeal has since re-iterated that confiscation
proceedings are by design draconian and cases where such proceedings
amount to an abuse will be rare indeed; see R (BERR) v Lowe [2009] 2 Cr.
App. R (S) 81, see now R v Nelson & Others [2010] 1 Cr. App. R (S)
82.
Conclusion
Abuse of process applications should not be
made lightly. However, they can arise in any number of situations – too
many to properly deal with in this short article. What is required in
any abuse application is material and authorities upon which such an
application can be properly supported. This usually means early and
focussed pressure on disclosure where a possible abuse of process
application might be made. In order to persuade a court to stay an
indictment a defendant has to have the ammunition to support the
application. That means the lawyers have to be alive to the
possibilities that might arise in any case and think long-term; e.g.
early written, and properly justified, requests for material – when
months later the Crown have failed to comply then the ammunition is
starting to build up enabling the defence to submit that the defence are
trying their best but facing difficulties form the prosecution. In
other words if there is any hint of an abuse of process application then
it must be kept at the forefront of the defending mind from the very
outset.
Jonathan Lennon is a Barrister specialising in serious and
complex criminal defence case at 23 Essex Street Chambers in London. He
is a contributing author to Covert Human Intelligence Sources, (2008
Waterside Press) and has extensive experience in all aspects of the
Proceeds of Crime Act 2002.
Aziz Rahman is a
Solicitor- Advocate and Partner at the leading Criminal Defence firm
Rahman Ravelli Solicitors, specialising in Human Rights, Financial Crime
and Large Scale Conspiracies/Serious crime. Rahman Ravelli are members
of the Specialist Fraud Panel and have recently been ranked by Legal
500 as an 'excellent' firm with Aziz Rahman being described as 'first
class and very experienced'.
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Updated
WikiLeaks founder and Australian Senate candidate Julian Assange has accused the Obama administration of waging a war on whistleblowers.
Mr Assange made the comments after a military judge found US soldier Bradley Manning guilty of several counts of espionage but not of aiding the enemy. "Barack Obama has proceeded with more prosecutions against whistleblowers for espionage than all previous presidents combined going all the way back to 1917," he told the ABC's AM program on July 31, 2013.
"In fact he's done double," he said.
Mr Assange said the case was "part of Obama's war on whistleblowers, part of Obama's war on journalism in fact".
- The claim: Julian Assange says Barack Obama has prosecuted more whistleblowers for espionage than all previous US presidents combined since 1917. He says the number was double.
- The verdict: Seven whistleblowers have been prosecuted for espionage during Mr Obama's presidency. The number for all previous presidents since 1917 is six.
The Obama administration's record
Since Mr Obama took office in 2009, charges have been laid against seven current or former federal government employees or contractors:- Edward Snowden, 2013
- John Kiriakou, 2012
- Jeffrey Sterling, 2010
- Bradley Manning, 2010
- Thomas Drake, 2010
- Stephen Kim, 2010
- Shamai Leibowitz, 2009
They included the former National Security Agency contractor now living in Russia, Edward Snowden, a state department contractor accused of leaking classified information about North Korea to Fox News, Stephen Kim, and a CIA officer who was charged in 2010 with leaking information about Iran's nuclear program to the New York Times, Jeffrey Sterling.
No journalist who received the leaks has been prosecuted, but James Risen of the Times has been ordered to testify in the Sterling case.
Prosecutions before 2009
Before the Obama administration, the Espionage Act was used three times against five individuals who leaked information to the media.Daniel Ellsberg and Anthony Russo were indicted together in 1971 for the leaking of the Pentagon Papers. Formal charges against them were later dropped.
Samuel Morison, a civilian analyst with the Navy, was convicted in 1985.
Larry Franklin, an employee of the US Department of Defence, Steve Rosen, the director of the American Israel Public Affairs Committee in Washington, and Keith Weissman, an analyst at AIPAC, were prosecuted together in 2001.
Assange's terminology
Professer Steven Vladeck from the Washington College of Law has told ABC Fact Check Mr Assange's statement could have been clearer.
In relation to prosecutions before Mr Obama took office, Professor Vladeck says: "I think it's right to say those were the three incidences where the Espionage Act was used on someone that was not a spy - so, an information leaker, whistleblower or otherwise."
He says when Mr Assange used the term "prosecutions", he should have been less precise and instead spoken about "charges laid".
Other commentators have referred to the prosecution of James Hitselberger under the Espionage Act as the administration pursuing a whistleblower, but he retained the information and did not leak it.
The verdict
Mr Assange is right that the Obama administration has proceeded with more whistleblower prosecutions than all other presidents combined since the Espionage Act was passed in 1917.However, he went too far when he added that the number was double previous prosecutions.
Seven whistleblowers have been prosecuted under the Espionage Act during Mr Obama's presidency.
Before 2009, charges were laid against six whistleblowers, albeit in only three cases.
If Mr Assange had not gone on to say that Mr Obama had prosecuted twice the number of whistleblowers than all other presidents combined, ABC Fact Check would have rated his claim as correct.
Whether seven prosecutions amounts to a "war on whistleblowers" or journalists is a matter of opinion.
Sources
- Julian Assange, AM, July 31, 2013
- Edward Snowden criminal complaint
- John Kiriakou indictment
- Jeffrey Sterling indictment
- Bradley Manning charge sheet
- Thomas Drake indictment
- Stephen Kim indictment
- Shamai Leibowitz charge
- Samuel Morison indictment
- Daniel Ellsberg and Anthony Russo inidictment
- Lawrence Franklin, Steve Rosen and Keith Weismann indictment
- James Hitselberger indictment
- Cory Currier, ProPublica, 'Charting Obama's Crackdown on National Security Leaks', July 31, 2013
- Zach Dyer, Journalism in the Americas, 'The Obama administration has aggressively prosecuted leaks and whistleblowers. Who are they?', May 14, 2013
- David Carr, The New York Times, 'Blurred Line Between Espionage and Truth', February 26, 2012
- Sharon LaFraniere, The New York Times, 'Math Behind Leak Crackdown: 153 Cases, 4 Years, 0 Indictments', July 20, 2013
- The University of Texas, College of Education, 'The Espionage Act and The Limitations of the First Amendment'
- US Merit Systems Protection Board, 'Blowing The Whistle: Barriers to Federal Employees Making Disclosures'
- US Securities and Exchange Commission, Office of the Whistleblower
- Criminal Prohibitions on the Publication of Classified Defense Information
