Richard Ekins: Amnesty and Abuse of Process

RichardEkins_profileOn 21 February 2014, Mr Justice Sweeney ordered a stay in the proceedings against John Anthony Downey, who had been charged with four counts of murder and one of doing an act with intent to cause an explosion. The charges related to the 1982 Hyde Park bombings. This post briefly explores the judgment’s constitutional significance.

Mr Downey was one of the so-called “on the runs” (or “OTRs”), that is, persons suspected of but not charged with offences relating to the Troubles, or persons charged who thereafter escaped, or persons charged and convicted who thereafter escaped. In accordance with the Good Friday Agreement, the Northern Ireland (Sentences) Act 1998 made provision for early release of some prisoners then serving sentences for offences relating to the Troubles. However, no such provision extended to the OTRs. Sinn Fein argued this was an anomaly, and the British Government, at first in private but then in public, agreed.

In an attempt to deal with the anomaly, the Government developed an “administrative scheme” whereby the authorities would review a list of names put forward by Sinn Fein, with a view to determining if there was sufficient evidence to prosecute and perhaps also whether any prosecution would be in the public interest. Successive Attorneys-General noted that there could be no amnesty apart from legislative action and that no decision to prosecute could be made about a class of person as opposed to some particular case. Reviewing the evidence in each case proved tricky, such that the focus shifted instead to whether the person was wanted by any police force in the United Kingdom.

The Government proposed a kind of amnesty by way of the Northern Ireland (Offences) Bill, introduced to Parliament in November 2005. However, the Bill was widely opposed, with even Sinn Fein, which had agitated for its introduction, withdrawing support in view of its extension to security personnel. Having withdrawn the Bill, the Government returned to the administrative scheme, reviewing the position of each of the remaining OTRs, including Mr Downey, and sending to some a standard letter to this effect:

 “The Secretary of State for Northern Ireland has been informed by the Attorney General that on the basis of the information currently available, there is no outstanding direction for prosecution in Northern Ireland, there are no warrants in existence nor are you wanted in Northern Ireland for arrest, questioning, or charge by the police. The Police Service of Northern Ireland are not aware of any interest in you from any other police force in the United Kingdom. If any other outstanding offence or offences came to light, or if any request for extradition were to be received, these would have to be dealt with in the usual way”.

 In 2007, such a letter was sent to Mr Downey. The letter was in error because in fact he was still wanted by the Metropolitan Police in relation to the Hyde Park bombings. Mr Justice Sweeney termed the error in question “catastrophic”, at [173], and understandably much attention has been paid to the error, which remains somewhat mysterious. Having received this letter, Mr Downey travelled within the United Kingdom a number of times, before being arrested in May 2013, passing through Gatwick Airport.

Much of the judgment’s 57 pages concern the background to the administrative scheme in general and the position of Mr Downey in relation to the scheme in particular. The main legal question concerned whether it would be an abuse of process to allow the prosecution to proceed, viz. whether “it offends the court’s sense of justice and propriety to try the accused in the particular circumstances of the case” (R v Maxwell [2011] 1 WLR 1837, per Lord Dyson at [13]). Mr Justice Sweeney noted, at [147], but did not analyse in detail, the various cases on abuse of process which turn on breach of a promise not to prosecute. In a critical passage, at [175], he reasoned that while “the public interest in ensuring that those who are accused of serious crime should be tried is a very strong one”, in this particular case:

 “it seems to me that it is very significantly outweighed in the balancing exercise by the overlapping public interests in ensuring that executive misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute, and the public interest in holding officials of the state to promises they have made in full understanding of what is involved in the bargain”.

 There is to be no appeal, which the Attorney-General maintains would certainly fail. However, the First Minister of Northern Ireland, Peter Robinson, has been “incandescent with rage” on hearing about the administrative scheme (the relative secrecy of which is disputed), and his threat to resign has prompted the Prime Minister, David Cameron, to announce an inquiry into the scheme, to be led by Lady Justice Hallett.

The administrative scheme seems to me in urgent need of close examination, for which the stay of proceedings has been the spur. Still, it seems to me a pity that there is to be no appeal for, with respect to the Attorney-General, the decision was certainly contestable.

Consider again the reasoning of Mr Justice Sweeney, which turns, without extensive elaboration, on the public interest in (a) ensuring that executive misconduct does not undermine public confidence in criminal justice and (b) in holding officials to promises they make. The abuse of process jurisdiction is not disciplinary, but the gravity of executive wrongdoing is relevant, for that gravity goes to the integrity of the resulting trial and thence to public confidence in the justice system. What was the executive misconduct here? It was incompetence in relaying (and correcting a misstatement about) the facts about the interest other police forces had in Mr Downey. There was no intention to deceive, no sharp practice, no unconscionable treatment of the defendant. The misconduct may well shake public confidence in the criminal justice system – but only because it has resulted in Mr Downey’s effective immunity to prosecution by reason of the stay. Absent that consequence, I suggest that the incompetence in question would be thought problematic but not such as to undermine public confidence. However, perhaps public confidence is merely the label one gives to any process that would be disreputable or otherwise unconscionable. That is: the actual confidence of the actual public is irrelevant.

Was prosecution in this case disreputable, unconscionable? It is hard to see how if the executive misconduct was incompetence in communicating facts about the intentions of other police forces, facts to which the person in question had no lawful right and on which he was not lawfully entitled to place any reliance. The judgment turns instead, it seems to me, on tacitly characterising the misconduct in question to be no mere incompetence in conveying facts but rather to be the making and breaching of a promise not to prosecute. Mr Justice Sweeney, at [173], takes Mr Downey – like all the other recipients of the standard letter – in effect to have been unequivocally assured that unless new facts came to light he would not be prosecuted in relation to offences predating the Good Friday Agreement. The letter would seem to state no such thing, but it is plausible that it may have been intended to convey this and to have been understood to convey as much.

Say the point of the letter was to promise Mr Downey (as with others who received similar letters) that he would not be prosecuted. It is not obvious that this is a promise that the court should respect, which it should effectively enforce by way of its jurisdiction to avoid an abuse of its processes. The discretion to prosecute may of course be exercised so as not to prosecute, if, after considering the sufficiency of evidence and the public interest, the prosecutor chooses to refrain from exercising his or her legal power to initiate proceedings. However, apart from any statute of limitations, this exercise of the discretion does not extinguish the continuing legal power to initiate proceedings, which may be exercised quite apart from the discovery of any new evidence. Enforcing a promise not to prosecute is to uphold a fetter on what should be a continuing discretion. (I note also that enforcing the promise in this case may permit officials in Northern Ireland to bind prosecutors in England; perhaps the unity of Her Majesty’s Government supports this outcome, although it may be hard to square with the constitutional position of prosecutors in England.)

Is there not then a public interest in holding officials to the promises they make “in full understanding of what is involved in the bargain”? Here, there was no “bargain”, not only because the relevant officials were mistaken about the relevant facts but also because there was no exchange. Nothing was required of Mr Downey in exchange for this “promise” nor was anything undertaken. The judgment mentions that he was a supporter of the peace process, but such support was not a quid pro quo of immunity. And there would be very real dangers to the rule of law in respecting such bargains not to prosecute. True, there are cases in which breach of a promise not to prosecute has been held to be an abuse of process, but those cases involve detrimental reliance. The reliance in this case was Mr Downey’s entry into the jurisdiction in the mistaken belief that he was not wanted by the police. This is sharply different to volunteering evidence that incriminates oneself or cooperating with the authorities in a way that risks life and limb or is otherwise costly. The present case is analogous instead to coming out of hiding – ceasing to flee the reach of the law – in the mistaken belief that proceedings will not be initiated. The law should have no respect for any such “reliance” and the extra-territorial dimension here does not change matters.

The situation would be different had the promise in question been a deception intended to lure the defendant out of hiding or into the jurisdiction, for in that case the judicial process would plausibly be thought to be being abused, to rest on unconscionable executive conduct. The matter might remain finally balanced for recall that the jurisdiction is not disciplinary and the public interest in prosecuting serious crimes may (and should) often be decisive.

There was never any executive power to provide an amnesty for the OTRs or anyone else. The Government’s efforts to secure an amnesty by legislation failed, hence it may have attempted to square the circle by way of an administrative scheme that provided information to the OTRs about prosecutorial decisions already made or about the intentions of police forces but which did not amount to an assertion of immunity. The irony of this judgment would seem to be that it in effect confers on the executive a legal power to realise an amnesty apart from legislative action: the act of assuring someone that he will not be prosecuted, notwithstanding the absence of any power to grant an immunity to prosecution to that person, has the effect that he cannot lawfully be brought to trial.

Perhaps Mr Justice Sweeney was right to stay these proceedings and perhaps the Attorney-General was right that any appeal against that judgment must fail. All the more reason then, one might say, to review urgently the administrative scheme with a view to securing the rule of law and to avoid instituting or maintaining an unlawful amnesty by way of the courts’ jurisdiction to avoid an abuse of process.

 Richard Ekins is an Associate Professor in the University of Oxford and the TC Beirne School of Law, University of Queensland.

Suggested citation: R. Ekins, ‘Amnesty and Abuse of Process’ U.K. Const. L. Blog (3rd April 2014) (available at