From the Court of Appeal of Jersey
In June or early July 2007, the States of Jersey Police received intelligence that the appellants were planning to import a large quantity of drugs into Jersey. They believed that one Mr Welsh was intending to collect the consignment in Amsterdam and take it to a port in Normandy from where it would be shipped to Jersey. The original plan was for Mr Welsh to take his own Jersey-registered car to St Malo and drive from there to Amsterdam.
The police wished to deploy two surveillance devices in the car: a tracking device which would enable them to follow its progress and an audio recording device which would enable them to listen to and record conversations of any occupants in the car. They knew that they would need the authority of the Attorney General to install and use these devices in the car both in Jersey and abroad: article 33 of the Regulation of Investigatory Powers (Jersey) Law 2005 (“RIPL”). They also knew that they would need the consent of the French, Belgian and Dutch authorities. The police obtained authority from the Attorney General under article 33 of RIPL to install a tracking and audio device in Mr Welsh’s car. The Attorney General and the Chief of Jersey Police did not give authority to install the audio device without the consent of the relevant foreign authorities; and that the foreign authorities also refused their consent.
The appellants were convicted of conspiracy to import into Jersey 180 kg of cannabis, a class B controlled drug. The drugs had a street value in excess of £1m. Curtis Warren, who masterminded the conspiracy, was sentenced to 13 years’ imprisonment. John Welsh was sentenced to 12 years’ imprisonment. James O’Brien was sentenced to 10 years’ and the other appellants each to 5 years’ imprisonment.
Before the Commissioner the appellants applied for a stay of the proceedings on the grounds of abuse of process. The basis of the application was that crucial evidence on which the prosecution wished to rely had been obtained as a result of serious prosecutorial misconduct. The Commissioner heard evidence and dismissed the application. The appellants then made an application for a ruling that the evidence obtained by the use of the audio device should be excluded under article 76(1) of the Police Procedures and Criminal Evidence (Jersey) Law 2003 This application was also dismissed. The Court of Appeal of Jersey heard a renewed application for leave to appeal against both decisions and dismissed both applications.
The appellants appealed to the Board only against the refusal of a stay. A successful appeal would inevitably lead to the quashing of the convictions.
Some of the leading authorities on the abuse of process jurisdiction in cases of prosecutorial misconduct were reviewed by the Supreme Court of the United Kingdom in R v Maxwell  UKSC 48. That was a case about a decision by the Court of Appeal of England and Wales to order a retrial following the quashing of a conviction on the grounds of serious misconduct by the police.
The Board considered that this was a useful summary of some of the factors that were frequently taken into account by the courts when carrying out the balancing exercise referred to by Lord Steyn in R v Latif. But it was also necessary to keep in mind his salutary words that an infinite variety of cases could arise and how the discretion should be exercised will depend on the particular circumstances of the case. Appellant suggested that it was possible to identify categories of cases where the court would always grant a stay like unlawful abduction cases (such as Ex p Bennett  1 AC 42 and R v Mullen  QB 520); entrapment cases (such as R v Looseley  1 WLR 2060); and cases which involve the breach of an assurance that there will be no prosecution in circumstances such as those that occurred in R v Croydon Justices, Ex p Dean  QB 769.
The Board recognised that, at any rate in abduction and entrapment cases, the court would generally conclude that the balance favoured a stay. But rigid classifications were undesirable. The Board held that it was clear from Latif and Mullen that the balance must always be struck between the public interest in ensuring that those who are accused of serious crimes should be tried and the competing public interest in ensuring that executive misconduct did not undermine public confidence in the criminal justice system and bring it into disrepute. The Board did not consider that the “but for” test would always or even in most cases necessarily determine whether a stay should be granted on the grounds of abuse of process. The facts of the present case demonstrated the dangers of attempting a classification of cases in the area of the law and of disregarding the salutary words of Lord Steyn. The Board concluded that the Commissioner reached the right conclusion in the present case, or at least a conclusion which he was entitled to reach. And yet it was accepted at all times by the prosecution that but for the unlawful and misleading misconduct of the Jersey police in relation to the installation and use of the audio device, the prosecution in this case could not have succeeded and there would have been no trial unless the police were able to obtain the necessary evidence by other (lawful) means.
The Court of Appeal concluded that what underlies the jurisdiction to stay proceedings as an abuse of process was the “court’s inescapable duty to secure fair treatment for those who come or are brought before it”. It had jurisdiction to stay proceedings which had been made possible by executive action “done in breach of the rule of law and where, as a result of such action, it would be unfair to try the accused at all”. Having considered the criticisms of the Commissioner’s decision, the court concluded that he was entitled to make the findings that he did and that his conduct of the balancing exercise was unimpeachable.
The Board concluded that police were unquestionably guilty of grave prosecutorial misconduct in the case. They acted in the knowledge that the Attorney General and the Chief of Jersey Police had not given authority to install the audio device without the consent of the relevant foreign authorities and would not do so; and that the foreign authorities had refused their consent. To some extent, they no doubt felt encouraged to take the approach that they took by the unwise advice given by Crown Advocate Jowitt on 11 July. But nothing can detract from the seriousness of the misconduct. The Commissioner was right to characterise it as “most reprehensible”. So the case for a stay in the case was of considerable weight. The misconduct was very serious. It involved misleading the Attorney General and the Chief of Police and the authorities of three foreign states. But as against that, there were factors which, taken cumulatively, the Commissioner was entitled to conclude weighed heavily against a stay. Like the offence with which the appellants were charged was very serious, the ringleader Mr Warren, was a professional drug dealer of the first order as he had committed the index offence only a few weeks after his release from prison following a 13 year sentence. Also to some extent the unwise advice of Crown Advocate Jowitt mitigated the gravity of the misconduct of the police.
The Board thus held that appeals should be dismissed