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Anand Beharrylal successfully argued for a stay of proceedings for abuse of process in one of the first Crown Court prosecutions

Anand Beharrylal successfully argued for a stay of proceedings for abuse of process at Woolwich Crown Court in one of the first Crown Court prosecutions brought by the Vehicle Operator Services Agency (‘VOSA').

VOSA initiated a prosecution against two of its Nominated Testers (‘NT') for a number of counts of fraud. In summary VOSA's allegation was that the NTs issued MOT certificates to vehicles without carrying out the proper tests required by the MOT scheme and that this action was deliberate. However, prior to the prosecution being launched VOSA carried out a disciplinary enquiry on the same core evidence and concluded that the actions of the NTs were gross negligence i.e. non-deliberate actions.

The abuse of process argument covered a number of areas. Two important areas were (i) material non-disclosure and (ii) failure to correctly apply the evidential stage test when taking the decision to prosecute. The non-disclosure point related to VOSA's failure to disclose the findings of the disciplinary proceedings before or after the service the defence case statement. In addressing this point criticisms were levelled at VOSA's failure to comply with the Criminal Procedure and Investigations Act 1996 and the Disclosure Protocol 2006.

Of particular concern was VOSA's apparent failure to carry out a review as required by the 1996 Act that would have led to the disclosure of the relevant material and an attitude to disclosure consistent with the pre-Disclosure Protocol position. The defence case statement made clear that the actions of the NTs were non-deliberate and it was not disputed that their actions were negligent as VOSA found. This was also highlighted in their interview under caution. However, the material relating to the disciplinary proceedings did not find its way onto the Non-Sensitive Schedule of Unused Material or even in disclosure received after service of the defence case statement.

The argument on VOSA's failure to correctly apply the evidential stage test centred on the findings in the disciplinary proceedings that if they had concluded that the actions of the NT's were non-deliberate, then it must follow the evidential stage test had not been properly applied. During a voir dire, in which VOSA opted to call evidence, it was revealed under cross-examination that VOSA's own evidential stage test did not include considering the defence explanations or the defence case. This marked an obvious departure from the evidential stage test applied by the Crown Prosecution Service, where consideration of the defence explanations or defence case is the norm.

Furthermore, in an attempt to mitigate the effect of the decision in the disciplinary proceedings VOSA sought to call evidence from the disciplinary adjudicator. The effect of this evidence would have been to qualify/contradict the original disciplinary decision to facilitate the continuance of the criminal prosecution. Objection by the defence was taken to this fresh evidence as being ex post facto reasoning.

His Honour Judge Geoffrey Pegden QC (‘the learned judge') after hearing argument and evidence over the course of two and half days ruled that the proceedings be stayed on the basis that it would be unfair to try the defendants in the circumstances of this case. In a detailed and reasoned ruling the learned judge ruled that the evidence VOSA sought to call from the adjudicator was indeed ex post facto reasoning and could not be taken into account insofar as it contradicted the earlier disciplinary decision as to the NT's actions.

As to VOSA's non-disclosure and application of the evidential stage test the learned judge also ruled that VOSA must have regard to its own prosecution policy and that at the time there appeared to be no clear prosecution policy and procedure leading to a number of instances of unfairness. These included VOSA never informing the NTs that they might be prosecuted before being interviewed, not informing the NTs what the interview was about, informing the NTs before interview that they may only have representation in the interview at their own expense, no co-ordination between disciplinary decisions and prosecution decision (especially at the time of the latter) and failure to follow VOSA's own published policy.

Following the ruling VOSA applied for time to consider whether to appeal. After a review VOSA decided against an appeal, but instead indicated that there would be a review of the policy and procedures that led to the unfairness and criticisms that arose on the facts of this case.

Anand Beharrylal was instructed for the defence by Messrs Kaim Todner Solicitors.

27 February 2009

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