Industry-Funded Specialist Police Units and Abuse of Process: When Third-Party Funding Does Not Require a Stay

3.1 Precedents Cited

R v Ng and O'Reilly [2024] EWCA Crim 493

The court treated R v Ng and O'Reilly [2024] EWCA Crim 493 as the modern restatement of abuse of process principles. It emphasised:

• Exceptional nature of stays: “a measure of last resort”.
• Two distinct limbs: (1) fair trial impossible; (2) affront to justice/public confidence such that integrity demands a stay.
• Category 2 (limb 2) rarity: “very exceptional”.
• Two-stage approach for limb 2: identify misconduct (serious malpractice/unlawfulness, not mere incompetence), then balance public interests (trial of alleged crime vs confidence in justice).
• No requirement of unfairness to the defendant under limb 2; the focus is systemic integrity, not disciplining misconduct.

This framework disciplined the court’s approach: the appellants’ case could only succeed by demonstrating something truly out of the ordinary—misconduct of a kind and degree that would make a fair trial nevertheless improper to conduct.

R v BKR

The judgment quoted R v BKR for the proposition that limb 2 does not arise merely because something has gone wrong; rather, “something out of the ordinary must have occurred” before a court refuses to try a defendant where a fair trial remains possible. The reference reinforced the high threshold: the inquiry is not whether the funding model is imperfect or controversial, but whether it crosses the line into an affront to public conscience.

R v Hounsham [2005] EWCA Crim 1366

The appellants relied heavily on R v Hounsham [2005] EWCA Crim 1366, where the Court of Appeal warned that police soliciting funds from potential victims to progress a particular investigation is “fraught with danger”: it may compromise independence, lead to selective investigation, partiality, and differential quality of preparation depending on whether the victim pays.

The present court accepted those risks as real in the abstract, but drew a sharp factual and structural distinction:

• In Hounsham, funding was actively sought by junior officers to enable a specific investigation step (interviewing suspects) that otherwise could not be funded.
• That created a close nexus between money and investigative choices, heightening the appearance (and risk) of “paying victim” preferential treatment.
• In contrast, the ABI arrangement was an arm’s-length, written, transparent agreement with fixed funding not tied to any particular case and with express independence protections.

Crucially, the court also noted that even in Hounsham the Court of Appeal had upheld refusal of a stay. That weakened the appellants’ attempt to treat Hounsham as establishing an automatic rule against privately funded investigative activity.

R v Zinga [2014] EWCA Crim 52; [2014] 3 All ER 90

The appellants also cited R v Zinga [2014] EWCA Crim 52; [2014] 3 All ER 90, where Lord Thomas LCJ urged urgent consideration of how police should respond to commercial assistance in confiscation/compensation contexts. The present court treated Zinga as highlighting sensitivity around commercial involvement, but again regarded the facts as “very far removed” from the present case. The decision in Moore is therefore best read as:

• acknowledging Zinga’s policy concern, while
• declining to convert it into a categorical bar where structural safeguards prevent case-specific influence.

3.2 Legal Reasoning

(a) The statutory backdrop: section 93 of the Police Act 1996

The SSA purported to be made under section 93 of the Police Act 1996, allowing a local policing body to accept “gifts of money” on terms including “commercial sponsorship”. The appellants argued that the SSA was not truly “sponsorship” but a contract for services funding core police functions (investigation), said to breach guidance (ACPO guidance in 2011; revised Financial Management Code of Practice 2018).

The Court of Appeal did not decide legality definitively, but made two important interpretive observations:

• “Gift” in section 93 is not confined to unconditional donations; section 93(2) contemplates gifts on terms (including sponsorship).
• It was “far from clear” the SSA was ultra vires; there was “considerable force” in construing “gift” broadly enough to include arrangements like this.

The court also downplayed the role of guidance as determinative of vires: the guidance “focus[ed] on a different type of commercial sponsorship” and did not, in terms, prohibit provision of cash for investigative purposes; DCI Hill’s statement assisted more on abuse than on statutory interpretation.

(b) The abuse of process question: limb 2 requires an affront to justice/public confidence

The court’s core reasoning lay in its application of limb 2 principles. It asked whether the SSA or its operation was such that trying the appellants would offend justice/propriety or undermine public confidence so seriously that a stay was necessary to safeguard integrity.

It found no such affront, relying on a detailed list of SSA features (effectively a checklist of safeguards) that collectively neutralised the risks of purchased policing or biased prioritisation:

1. Arm’s-length funding path: ABI paid COLP (police authority/force), not IFED directly.
2. Not unique in policing: similar arrangements existed for other specialist units (Intellectual Property Office; UK Finance).
3. Strong public interest: insurance fraud affects premiums and the public at large; funding advanced an “extant interest” of police/public.
4. Transparency and accountability: written agreement open to inspection; police authority answerable to Parliament.
5. Trade body rather than individual payers: ABI had no financial interest in any particular investigation’s outcome.
6. No case-specific payments: no money advanced to further a particular investigation.
7. Fresh revenue stream: not diversion from other policing budgets, undermining the “resource shift” thesis.
8. Express independence clauses: SSA terms preserved operational independence (recital H; paragraphs 2.6 and 20).
9. No day-to-day funder management: operational control remained with the Commissioner and officers.
10. No exclusivity: no duty to investigate only ABI-member victim cases; IFED had pursued matters without ABI member interest.
11. Fixed and formulaic funding: capped/fixed sums with RPI indexing; no “incentive element”.

Two doctrinal points emerge from this reasoning:

• Connection matters: the closer the nexus between money and a specific investigative/prosecutorial decision, the more likely limb 2 concerns become acute (as in Hounsham); the more general, arm’s-length, fixed and transparent the funding, the less likely it is to undermine confidence.
• Illegality ≠ abuse automatically: even if an administrative arrangement were unlawful, the criminal court’s stay jurisdiction focuses on integrity/public confidence in the prosecution of the defendant for the alleged crime, not on providing a remedy for every species of public law defect.

(c) Why the court could avoid deciding vires

The court endorsed (as did the trial judge) a pragmatic sequencing: where the alleged abuse claim fails even on the assumption of illegality, it is permissible to decline a definitive ruling on statutory vires. This is consistent with the idea that a criminal stay is not a general supervisory jurisdiction for public law compliance; the question is whether the circumstances make the trial itself improper.

3.3 Impact

The decision is likely to have practical influence in three ways.

(1) A workable threshold for challenges to third-party funded policing

Moore signals that defendants cannot obtain a stay merely by pointing to the fact of industry funding, or by asserting abstract risks of bias. Future applicants will likely need to show:

• case-specific influence (or credible appearance of it),
• incentivised funding tied to outcomes or investigative steps,
• lack of transparency/accountability,
• or operational control/management by funders.

(2) A “safeguards template” for SSAs and similar agreements

The court’s enumerated features function as a de facto compliance checklist. Public bodies and funders will likely design or revise agreements to mirror these indicia: arm’s-length payment routing, express operational independence clauses, fixed budgets, prohibition of case-specific payments, transparency, and avoidance of exclusivity.

(3) Clarifying the relationship between administrative law defects and criminal abuse of process

The judgment reinforces that the abuse jurisdiction is not triggered automatically by arguable ultra vires conduct. That stance limits the “collateral” use of criminal proceedings to litigate public law challenges, while still leaving open the possibility that sufficiently serious, case-linked misconduct could justify a stay under limb 2.

Importantly, Moore does not immunise privately supported policing from scrutiny: it accepts the dangers identified in R v Hounsham [2005] EWCA Crim 1366 and implicitly marks out the danger zone—solicitation or receipt of money to advance a particular investigation, or arrangements that create a reasonable suspicion of purchased prioritisation.