Queen v Nigel James Brown & Gary Ryan Taylor (No. 2)

JurisdictionNorthern Ireland
JudgeHart J
Judgment Date25 September 2009
Neutral Citation[2009] NICC 58
CourtCrown Court (Northern Ireland)
Date25 September 2009
Year2009
1
Neutral Citation No. [2009] NICC 58 Ref:
HAR7619
Judgment: approved by the Court for handing down Delivered:
25/9/2009
(subject to editorial corrections)*
IN THE CROWN COURT IN NORTHERN IRELAND
_________
BELFAST CROWN COURT
________
THE QUEEN
-v-
NIGEL JAMES BROWN
AND
GARY RYAN TAYLOR
(NO. 2)
_________
HART J
[1] Gary Ryan Taylor has been returned for trial for the murder of Thomas
Devlin and other charges relating to the death of Thomas Devlin and the
injury of Jonathan McKee on 10 August 2006 in circumstances which I have
already described in some detail in my judgment of 2 July 2009. In that
judgment I gave my reasons for refusing to enter a No Bill against both
defendants, and I held that there was sufficient evidence to justify Taylor
being put on trial on the charges which he faces.
[2] Taylor has now applied for a stay of the prosecution against him on
the basis that there has been an abuse of process because the Public
Prosecution Service (PPS) informed him that he was not to be prosecuted, but
subsequently decided after a review of the case and obtaining an opinion
from a second senior counsel that he should be prosecuted. I have had the
benefit of skeleton arguments and oral submissions from Mr Farrell (who
appears on behalf of Taylor with Mr John Orr QC), and from Mr Hedworth
QC (who appears for the prosecution with Mrs McKay). I am indebted to
them for their arguments and submissions which were a model of what
skeleton arguments and oral submissions should be.
[3] In the course of his submission Mr Farrell stated that his client relied
upon the second limb of the test laid down in R v Horseferry Road Court, ex
2
parte Bennett as formulated by Carswell LCJ in DPP’s Application [1999] NI
406 at p. 116, when he stated that one of the only two main strands or
categories of abuse of process was:
(b) Those like the ex parte Bennett case, where by
reason of some antecedent matters the court
concludes that although the defendant could receive a
fair trial it would be an abuse of process to put him on
trial at all.”
Mr Farrell expressly conceded that despite the prosecution indicating at one
stage that the defendant would not be prosecuted he could have a fair trial.
However, Mr Farrell relies upon the following arguments.
(i) That the line of authorities commencing with R v Croydon Justices ex
parte Dean (1994) 98 Cr App R at 76 establishes that where the prosecution
give an unequivocal representation to a defendant that he will not be
prosecuted, and then prosecute the defendant, that is capable of being an
abuse of process.
(ii) That the decision to refer the matter to different senior counsel for a
second opinion was in breach of the PPS Code for Prosecutors.
(iii) Whilst accepting that the delay in itself would not be sufficient to
justify granting a stay, the delay from the date of the commission of the
alleged offence, and from the date of the PPS decision not to prosecute,
amount to an additional factor justifying a stay of the proceedings.
[4] Mr Hedworth accepted that a clear and unambiguous statement was
made to the defendant that he would not be prosecuted, but argues that it
was open to the PPS to seek a second opinion, and, in the light of that
opinion, to change its position and to decide to prosecute the defendant, a
decision vindicated by the dismissal of the No Bill application to which I have
already referred. He argued that in following this course there was no breach
of the PPS Code, pointing out that it is not a statute but a statement of general
principles.
[5] In particular Mr Hedworth relies on the principles formulated by Lord
Phillips LCJ in R v Abu Hamza [2006] EWCA Crim 2918 at paragraph 54
where he stated:
These authorities suggest that it is not likely to
constitute an abuse of process to proceed with a
prosecution unless -

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2 cases
  • Director of Public Prosecutions v Patrick O’Neill
    • United Kingdom
    • Magistrates' Court (Northern Ireland)
    • October 7, 2013
    ...representation.” 26. These principles were adopted by Weatherup J in Tsang’s Application [2008] NIQB 135. In R v Brown and Taylor (No.2) [2009] NICC 58, Hart J also highlighted that unfairness to the defendant is not the test, quoting Richardson J in Moevao v Department of Labour [1980] 1 N......
  • Queen v (1) SOLDIER A (2) SOLDIER C
    • United Kingdom
    • Crown Court (Northern Ireland)
    • January 30, 2020
    ...[122] Abu Hamza has been followed in Northern Ireland in a slightly different context on more than one occasion. In R v Brown and Taylor [2009] NICC 58 the second named defendant, Taylor, in respect of a murder charge, had been told by the prosecution that he would not be prosecuted. Howeve......

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