21.
The premises of the Court of Appeal’s decision in R v Mullen
[2000] QB 520 were similar to those in Bennett, save that a fair trial had
already taken place and Mullen had already been convicted of very
serious terrorist offences, and sentenced to 30 years’ imprisonment,
before he was alerted to the misconduct surrounding his abduction from
Zimbabwe. Despite the fairness of the trial, his conviction was quashed.
Giving the reserved judgment of the court, Rose LJ said (at pp 535-536):
“This court recognises the immense degree of public
revulsion which has, quite properly, attached to the
activities of those who have assisted and furthered the
violent operations of the I.R.A. and other terrorist
organisations. In the discretionary exercise, great weight
must therefore be attached to the nature of the offence
involved in this case. Against that, however, the conduct
of the security services and police in procuring the
unlawful deportation of the defendant in the manner which
has been described represents, in the view of this court, a
blatant and extremely serious failure to adhere to the rule
of law with regard to the production of a defendant for
prosecution in the English courts. The need to discourage
such conduct on the part of those who are responsible for
criminal prosecutions is a matter of public policy to which,
as appears from R v Horseferry Road Magistrates’ Court,
Ex p Bennett [1994] 1 AC 42 and R v Latif [1996] 1 WLR
104, very considerable weight must be attached.”
22.
The fourth authority relied on for its statements of principle was
R v Looseley, Attorney General’s Reference (No 3 of 2000) [2001]
UKHL 53, [2001] 1 WLR 2060, which concerned cases of alleged
entrapment. At the outset of his opinion (para 1) my noble and learned
friend Lord Nicholls of Birkenhead declared that:
“every court has an inherent power and duty to prevent
abuse of its process. This is a fundamental principle of the
rule of law. By recourse to this principle courts ensure
that executive agents of the state do not misuse the
coercive, law enforcement functions of the courts and
thereby oppress citizens of the state.”
A stay is granted in a case of entrapment not to discipline the police
(para 17) but because it is improper for there to be a prosecution at all
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