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This case considered the circumstances in which it was appropriate for a court to stay proceedings on the ground that an abuse of process offends the court’s sense of justice and propriety. The Privy Council refused to stay the proceedings. They took the opportunity to restate the proper principles on staying proceedings for abuse of process where the abuse does not prevent the defendants from having a fair trial. Along the way, they held that a key authority which has been relied on in Hong Kong was wrongly decided.

Warren, with others, was prosecuted for importing illegal drugs into Jersey. The plan to import the drugs required them to drive through various European countries before they arrived in Jersey. The Attorney General of Jersey sought the consent of the authorities in those countries to attach audio recording and tracking devices to the car. The French and Dutch authorities refused permission for audio recording.

Subsequently legal advice was obtained that the Jersey courts would not exclude audio recording evidence obtained without the consent of the French or Dutch authorities. As a result an audio recording device was fitted to the car. Neither the Attorney General nor the French authorities were told that the audio recording device was functional. The French Authorities were actively misled as to the nature of the device. Conversations were subsequently recorded that were crucial to the prosecution case. The defendants applied for the prosecution to be stayed on the grounds that it amounted to an abuse of process. The application was rejected at first instance and on appeal.

The Privy Council rejected the appeal. Lord Dyson, giving the unanimous judgment of the Privy Council, held that cases where a stay application was based on the affront to the court’s sense of justice and propriety, it was important to remember the rationale for such a stay. The rationale was to maintain public confidence in the judicial system. There were two conflicting aspects of the public confidence here (1) the importance in prosecuting suspects for serious crimes and (2) the importance of preventing executive misconduct in investigating crimes. This was a delicate balancing exercise in which there were no fixed rules and no rigid classifications. The relevant factors were properly considered by the first instance judge. There were therefore no grounds on which the decision ought to be set aside.

The Privy Council condemned the English Court of appeal decision in R v Grant [2005] EWCA Crim 1089. They emphasised that it was not the role of the court to supervise the conduct of the executive and to stay proceedings to express its disapproval of the methods by which evidence was obtained. Therefore, the fact that there would have been no proceedings but for the executive’s misuse of their powers was nothing more than one of the relevant factors. In this light Grant, where those two factors were determinative parts of the reasoning, was wrongly decided.

The doubt cast on Grant is likely to be of substantial importance in Hong Kong. The leading case on the stay of proceedings on the grounds of abuse of process in Hong Kong is Secretary for Justice v Shum Chiu [2008] 1 HKLRD 155. It was decided on the basis that a line of authorities, including Grant, was the appropriate course to adopt in Hong Kong. Warren must now put this into question.

Shum Chiu was applied by the Court of Appeal in HKSAR v Wong Hung-Ki & Anor [2010] 4 HKC 118 (which concerned the 2nd and 3rd Defendants in Shum Chiu). The Court of Appeal stayed the proceedings as an abuse of process. They framed the critical issue as the balance between “the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means.” On the facts of the case, the starting point was the importance of legal professional privilege and the importance of communication between a client and his legal advisors. This was to be balanced against the serious nature of the offences charged. Any assessment of the balance was one to be made with regard to the operational constraints of the ICAC but with due regard to the rule of law. In the Court’s view, the there had been an abuse of process which was an affront to the conscience of the court and to which the court should not lend itself by permitting the proceedings to continue.

In its view of the balancing exercise, the oversight over the action of the executive authorities and the degree to which executive action is considered to be something that impinges on the court’s own process, there are clear conflicts between the decision in Warren and Shum Chiu as it was applied in Wong Hung-Ki. It remains to be seen how this conflict will be resolved.

Full text of the judgment here.

Summary prepared by the Press Office here.