R v Davis (Aine)

The defendant, who was a British citizen, was convicted in Turkey of an offence of being a member of an armed terrorist organisation and sentenced to a term of imprisonment. Having served his sentence he was deported from Turkey to the United Kingdom. There he was charged on indictment with fund-raising for terrorist purposes, entering into funding arrangements for terrorist purposes and possession of a firearm for terrorist purposes, contrary to sections 15, 17 and 57 respectively of the Terrorism Act 2000. At the preparatory hearing held pursuant to Part III of the Criminal Procedure and Investigations Act 1996^F1 the defendant contended, among other things, that the prosecution should be stayed as an abuse of process because (i) it infringed the double jeopardy principle, (ii) there were no special circumstances which justified him being prosecuted a second time in respect of the same facts and (iii) the United Kingdom authorities had procured, colluded or connived in his deportation, which had been illegal. The judge gave a ruling under section 31(3) of the 1996 Act, by which he decided against the defendant. The defendant applied for leave to appeal against that ruling under section 35(1) of the 1996 Act.

On the application and the question whether an appeal lay under section 35 from a ruling on abuse of process—

Held, dismissing the application, (1) that whether an appeal lay under section 35(1) of the Criminal Procedure and Investigations Act 1996 from a ruling made in a preparatory hearing on an application to stay the proceedings on the ground of abuse of process turned on whether the particular ruling was a ruling “on any … question of law relating to the case” within section 31(3) of the 1996 Act; that, in order to determine whether a ruling was a ruling on a question of law relating to the case for the purposes of section 31(3), the focus should be on the nature of the issue that was determined in the ruling, not on the errors or alleged errors which the ruling contained; that, in the present case, the defendant’s application to stay the proceedings on the grounds of abuse of process had been made on three bases, each of which constituted a “question of law relating to the case” within the meaning of section 31(3); and that, accordingly, in principle an appeal under section 35(1) lay to the Court of Appeal (Criminal Division) from the ruling of the judge in the present case (post, paras 38–42).

R v H [2007] 2 AC 270, HL(E) applied.

(2) That it was established law that, in order to determine whether the principle of double jeopardy would be offended by two sets of criminal proceedings, the court should ask whether the proceedings were founded on or arose out of the same incident or were founded on the same or substantially the same facts; that that exercise might include having regard to such matters as the extent and seriousness of the criminality alleged in the respective cases and whether there was any significant difference between the facts founding the charges; that, furthermore, the court might need to consider the detail of the charges, which could be a critical aspect of assessing whether the prosecution in question constituted an abuse of process, because the charges provided the context in which an assessment of the extent of any factual overlap was to be made and might contain factual assertions which were relevant to this decision; that, thus, rather than focusing narrowly on the ingredients of the respective charges, there should be a more holistic approach, by reference to all the circumstances, when assessing whether the charges arose out of the same incident; that, in the present case, the Turkish and the United Kingdom proceedings were not founded on and did not arise out of the same incident, nor were they founded on the same or substantially the same facts, given that (i) the extent and seriousness of the criminality alleged in the two sets of proceedings was markedly different, (ii) the facts founding the proceedings in the two countries were significantly dissimilar and did not relate to the same incident and (iii) there was considerable divergence in the evidence that had been or was relied on to prove those facts; that, therefore, the question of whether there were special circumstances justifying the defendant’s prosecution did not arise for consideration; that, finally, there was no evidence to support the defendant’s allegations of improper behaviour on the part of the United Kingdom authorities; and that, accordingly, leave to appeal would be refused (post, paras 61–67, 92–93, 121).

Per curiam. A conclusion that, in principle, an appeal lies under section 35(1) of the 1996 Act from a ruling made under section 31(3) on abuse of process does not mean that it will be appropriate for the Court of Appeal (Criminal Division) to exercise its appellate jurisdiction by substituting its judgment for that of the first instance judge pursuant to section 35(3). A ruling on abuse of process typically involves findings of fact and a multi-factorial balancing exercise. It is not the function of the Court of Appeal, whether on an interlocutory appeal or on an appeal against conviction, to remake the judge’s findings of fact or to perform the balancing exercise afresh, unless the judge has erred in law or approach, taken into account something irrelevant or failed to consider something relevant or reached a decision that no reasonable judge could reach. It is emphasised that a judge is not obliged to deal in a ruling with every piece of evidence or every submission advanced. Submissions that a judge has left out of account a material consideration should be made sparingly and only where the transcript and ruling, read as a whole, justify it (post, paras 43–44).