R v Horek

• Jurisdiction: Cayman Islands
• Judge: (Owen, Ag. J.)
• Judgment Date: 04 September 2014
• Court: Grand Court (Cayman Islands)
• Date: 04 September 2014

Grand Court, Criminal Division

(Owen, Ag. J.)

R.

and

HOREK

G. Walcolm, Crown Counsel, for the Crown;

N. Dixey for the respondent.

Cases cited:

(1) K v. Chief Immigration Officer, 2014 (2) CILR 174, referred to.

(2) Panday v. Virgil, [2008] 1 A.C. 1386; [2008] 3 W.L.R. 296; [2008] 2 Cr. App. R. 21; [2008] UKPC 24, applied.

(3) R. v. Horseferry Road Mags.” Ct., ex p. Bennett, [1994] 1 A.C. 42; [1993] 3 W.L.R. 90; [1993] 3 All E.R. 138; (1994), 98 Cr. App. R. 114, applied.

(4) R. v. Minzett, 2011 (2) CILR 236, referred to.

(5) Sharma v. Brown-Antoine, [2007] 1 W.L.R. 780; [2006] UKPC 57, applied.

(6) Warren v. Att. Gen., 2011 JLR 424; [2012] 1 A.C. 22; [2013] 3 W.L.R. 464; [2011] 2 All E.R. 513; [2011] 2 Cr. App. R. 29; [2011] UKPC 10, referred to.

Courts-Magistrate”s Court-jurisdiction-Summary Court entitled to stay proceedings if abuse of power to try accused-unfair if laying of charge oppressive, in bad faith, or in circumstances which offend court”s sense of justice and propriety-not to refer issue to Grand Court unless review clearly raises sensitive issues outside scope of prosecution

The respondent was charged in the Summary Court with theft.

The respondent managed several rental properties and was accused of stealing rent payments, although she maintained that she was innocent. She met with the landlord and C, a member of the Royal Cayman Islands Police Service, and agreed that she would pay the stolen money to the landlord and, in return, she would not be arrested for theft. The respondent was unable to keep up with the payments and was subsequently arrested.

During her trial at the Summary Court, C claimed that he had helped the respondent and the landlord reach a deal because he believed that it was the easiest way for the landlord to be repaid. He also admitted that he had not consulted with his superiors or obtained legal advice before doing so and that he was unaware of the crime of compounding. The court (Foldats, Magistrate) found that C had actively acted as a private debt collector, had pressured the respondent into making payments under threat of arrest and had compounded the theft in violation of the Penal Code (2010 Revision), s.108. The officer”s serious misbehaviour had therefore violated the court”s sense of justice and propriety and the court stayed the proceedings.

The Crown conceded that the Summary Court had jurisdiction to stay the proceedings, but submitted that it had not been necessary to do so. Although C had compounded the offence, the Summary Court had not taken into account any mitigating factors (e.g. the fact that C had not acted in bad faith) which should have allowed the prosecution to continue.

The respondent submitted in reply that the Summary Court had been right to stay the proceedings. C”s actions had clearly violated the court”s sense of justice and propriety and it was irrelevant that he had done so in good faith.

Held, dismissing the appeal:

The Summary Court had been right to stay the proceedings. The court was entitled to stay proceedings on the grounds of abuse of power if it was unfair to try the accused because the laying of the charge had been oppressive, in bad faith, or in circumstances which offended the court”s sense of justice and propriety. Although an application to the Grand Court for review might be necessary in certain circumstances, this would require a very clear policy justification where it was obvious that the review would raise sensitive issues which lay outside the range of the prosecution itself. It was clear that the Summary Court had been aware of the principles of law which governed this power and that it was entitled to find that C”s actions offended its sense of justice and propriety, notwithstanding any mitigating factors. Further, the sustained threat of arrest if the respondent breached the agreement was a strong aggravating factor as the court should not allow police officers to take the law into their own hands. The Summary Court had therefore been right to find that it would be unfair to continue the trial (paras. 10–16).

1 OWEN, Ag. J.: This is an appeal by case stated from the ruling of Foldats, Magistrate dated May 3rd, 2012 in which he stayed the prosecution of the respondent on charges of theft as an abuse of the process of the court. Mr. Walcolm, for the Director of Public Prosecutions, seeks to argue that the Summary Court of the Cayman Islands has no jurisdiction to grant a stay on what has become known as the ‘ex p. Bennett limb 2 ground’ (i.e. abuse of power offending the court”s sense of justice and propriety) and that the learned Magistrate erred in law in finding that the conduct of the relevant investigating police officer amounted to serious misconduct such as to justify the grant of a stay of the proceedings.

2 Mr. Dixey for the respondent submits that the nature of the abuse submission was such as to fall well within the jurisdiction of the Summary Court and that the Magistrate was therefore right to entertain and rule on the abuse submission, not least in circumstances in which the...