Introduction

The case of Seru, R. v ([2023] EWCA Crim 1102) before the England and Wales Court of Appeal (Criminal Division) addresses critical issues surrounding prosecutorial discretion and the principles governing the continuation of prosecution after an initial indication of discontinuance. Corporal Seru, a member of the British Army, was charged with two counts of sexual assault against a fellow soldier. The central legal dispute emerged when the Service Prosecution Authority (SPA) initially communicated an intention not to proceed with the prosecution, only to reverse this decision following a victim's request for a review.

Summary of the Judgment

Criminal Division Vice President presided over the appeal brought forward by Corporal Seru, challenging the Assistant Judge Advocate General's decision to dismiss his application to stay proceedings on the grounds of abuse of process. The SPA initially indicated, via an email from a junior officer, that no evidence would be offered against Seru. This decision was contested by the complainant, who, invoking the SPA's Victim's Right to Review Policy, prompted a formal review. The Director of Service Prosecutions subsequently reversed the initial indication, leading Seru to argue that continuing prosecution under these circumstances constituted an abuse of process. The court ultimately upheld the Assistant Judge Advocate General's ruling, finding no merit in Seru's appeal.

Analysis

Precedents Cited

The judgment extensively references key legal precedents that have shaped the understanding of prosecutorial discretion and abuse of process:

• R v Bloomfield [1997] 1 CrAppR 135: Established the principle that if the Crown indicates it will not offer evidence, reversing this decision can undermine the administration of justice.
• R v Killick [2012] 1 CrAppR 10: Confirmed that proceedings should not be stayed unless there is an unequivocal representation of discontinuance that the defendant has acted upon to their detriment.
• R v Abu Hamza [2007] QB 659: Emphasized that there should not be an abuse of process in prosecutions, especially concerning the legitimacy of continuing prosecution after an initial decision not to prosecute.
• Barber v The Administrator of the Sovereign Base Areas [2021] EWHC 2858 Admin: Although cited, the court found it inapplicable due to differing facts and legal questions.

Legal Reasoning

The court meticulously analyzed whether the SPA's initial communication of intent to discontinue prosecution constituted a binding decision that, if reversed, would amount to an abuse of process. The key points in the legal reasoning include:

• Authority of SPA Communications: The email sent by a junior SPA officer was deemed an indication of intent rather than a formal, irrevocable decision. It lacked the authority to bind the SPA definitively.
• Victim's Right to Review: The complainant exercised her right to review under the SPA's policy, triggering a formal reassessment by the Director of Service Prosecutions, which resulted in the decision to proceed with prosecution.
• No Prejudice to Defendant: The court found that the reversal of the initial indication did not cause any prejudice or detriment to Seru, as there was no substantial reliance on the initial communication in preparing his defense.
• Public and Service Interest: Upholding the ability to prosecute ensures the integrity of military discipline and the rights of the victim, aligning with public interest.

Impact

This judgment reinforces the SPA's authority to reverse initial prosecutorial decisions without constituting an abuse of process, provided the initial communication was not a formal offer of no evidence. It clarifies that intentions conveyed informally or prematurely do not bind the prosecution and do not prevent the continuation of legal proceedings upon formal affirmation. This has significant implications for future military cases, ensuring that prosecutorial discretion remains robust while safeguarding the rights of both defendants and victims.

Complex Concepts Simplified

Conclusion

The R v Seru judgment underscores the supremacy of formal prosecutorial decisions over preliminary indications, even within the military justice system. By upholding that the reversal of an informal intent not to prosecute does not constitute an abuse of process, the court affirms the SPA's ability to diligently review and act upon prosecutorial decisions based on comprehensive assessments. This decision reinforces confidence in the military justice system's fairness and its commitment to both victim rights and the integrity of prosecutions.