Law Report: Judge wrong to refuse Spens not guilty verdict: Regina v Central Criminal Court, Ex parte Spens - Queen's Bench Divisional Court (Lord Justice Glidewell and Mr Justice Hidden), 27 November 1992

A Crown Court judge has no power under section 17 of the Criminal Justice Act 1967 to order a permanent stay of criminal proceedings where the prosecution offers no evidence but was required to enter a verdict of not guilty or empanel a jury and direct them to return a not guilty verdict.

The Divisional Court quashed Mr Justice Henry's order (the Independent, 18 March 1992) of a permanent stay of the indictment against Lord Spens in the second Guinness trial and remitted the matter for redetermination, but decided it had no jurisdiction to review Mr Justice Henry's decision in relation to Lord Spens' costs. Lord Spens was arrested in 1988 and charged with offences arising out of the takeover of Distillers plc by Guinness plc. The second Guinness trial, in which Lord Spens and Roger Seelig were defendants, was aborted in February 1992 on its 69th day after Mr Seelig's mental health broke down under the strain of conducting his own defence.

The Attorney General directed a nolle prosequi to stay all proceedings on the indictment against Mr Seelig without a verdict being entered. The Serious Fraud Office decided, on the ground that further proceedings would be oppressive, to offer no evidence against Lord Spens. Lord Spens applied to Mr Justice Henry to enter a verdict of not guilty under section 17 of the Criminal Justice Act 1967, and for an order that Lord Spens' costs of pounds 400,000 incurred before trial and before he was granted legal aid be paid out of public funds.

Mr Justice Henry decided that he had an unfettered discretion under section 17 whether to order a permament stay of the prosecution of the indictment or to enter a not guilty verdict. He ordered a permanent stay of the prosecution of Lord Spens as that would leave Lord Spens in the same position as Mr Seelig, and ordered the indictment lie on the file marked 'not to be proceeded with'. He declined to order payment of the costs out of public funds. Lord Spens applied for judicial review of those orders.

Andrew Collins QC, David Hood and Simon Stafford-Michael (Garstangs, Bolton) for Lord Spens; Michael Beloff QC (Treasury Solicitor) for the Lord Chancellor; Elizabeth Gloster QC (SFO) for the Crown.

LORD JUSTICE GLIDEWELL said that the first issue was whether the Divisional Court had jurisdiction to oversee either or both of the judge's orders.

Section 29(3) of the Supreme Court Act 1981 excluded the Divisional Court's jurisdiction in relation to the Crown Court's 'jurisdiction in matters relating to trial on indictment'.

In Re Smalley (1985) AC 622 the House of Lords construed the phrase as meaning 'an order affecting the conduct of the trial'. In Re Sampson (1987) 1 WLR 194 the House of Lords decided that an order that an acquitted defendant pay a contribution to his legal aid costs was 'an integral part of the trial process', and therefore not subject to judicial review.

Applying those tests, the courts, from the Divisional Court to the House of Lords, had distinguished between challenges to orders in two categories: (1) A Crown Court order that a prosecution was 'not to be proceeded with without the leave of the court', which left open the prospect of a future trial. It thus did affect the conduct of the trial and was an order which the High Court could not review; (2) A Crown Court order for a stay of proceedings on the grounds of abuse of process which 'is not concerned with the conduct of the trial': R v Norwich Crown Court, Ex p Belsham (1992) 1 WLR 54.

There was no logical distinction between Mr Justice Henry's order refusing payment of Lord Spens' pre-trial costs out of public funds and the order in Sampson. Lord Spens' costs were incurred in preparation for the hearing of the trial before the jury and there was a 'trial' which lasted for 69 days. The costs were incurred as an integral part of the process of that trial, within the test in Sampson.

Mr Justice Henry's decision as to costs was exercised in his jurisdiction in a matter relating to trial on indictment and therefore the Divisional Court had no power to interfere with it.

Turning to the Divisional Court's jurisdiction of Mr Justice Henry's order staying further prosecution of Lord Spens, the clear effect of the order was to remove any chance of the prosecution of Lord Spens on these charges proceeding again and was in accordance with the distinction made in Belsham between a stay and an order, that a prosecution was not to be proceeded with without leave.

If the fact that there had been an abortive trial were to make an effective difference, the jurisdiction of the court would depend on mere semantics. Mr Justice Henry's order was intended to prevent any trial of Lord Spens on these charges in the future. It was not an order which was concerned with the conduct of such a trial and the Divisional Court had jurisdiction to oversee it.

Mr Justice Henry was wrong in his interpretation of section 17. Section 17 was merely a piece of machinery which enabled the judge to enter a verdict of not guilty instead of empanelling a jury to enter a not guilty verdict where the prosecution offered no evidence. Section 17 gave the judge no discretion to adopt some other different course.

Abuse of process was the essential foundation of the court's power to stay a prosecution.

If, after the prosecution offered no evidence, a not guilty verdict had been entered, that would not have been an abuse of process. Mr Justice Henry had no power to order a permanent stay and his order to that effect would be quashed.

MR JUSTICE HIDDEN concurred.

Ying Hui Tan, Barrister