9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) of this nature could have are obvious. The role of the courts is to stand between the state and its citizens to make sure this does not happen." 396. He went on to point out in paragraph 11 that "in this field English criminal law has undergone substantial development over the comparatively short period of 20 years …". Accordingly, observations in cases such as Ping Lin and Sang must be read and applied bearing in mind these modern developments. 397. At paragraph 13, Lord Nicholls went on to say that: "The judiciary should accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that 'threatens either basic human rights or the rule of law' ….". 398. As Lord Nicholls went on to explain in paragraphs 15 and 16, where executive abuse has occurred, the appropriate reaction of the court may depend on the circumstances. Thus, where the crime was committed purely as a result of entrapment, the only course for the court may be to stay the proceedings. In other cases, for instance where certain statements have been obtained unfairly by the authorities, the proper course may be to permit the prosecution to proceed, while excluding the unfairly obtained statements (see also per Lord Hoffmann at paragraphs 40, 42-44.) 399. It is also relevant to observations from members of the House of Lords in two other cases, which Lord Nicholls no doubt had in mind. First, in R -v- Horseferry Road Magistrates' Court ex p Bennett [1994] 1 AC 42, at 76C-D, Lord Lowry said: "[T]he court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it, and have only been made possible by acts which affect the court's conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court's process has been abused. … It affects the proper administration of justice according to the rule of law and with respect to international law." 400. In that case, as Lord Bridge made clear at 67G, the executive had only been able to prosecute the defendant "by participating in violations of international law and of laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court". 401. In R -v- Latif [1996] 1 WLR 104 at 112H - 113B, Lord Steyn said: "Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed …. [P]roceedings may be stayed in the exercise of the judge's discretion not only where a fair trial is impossible, but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. … General guidance as to how the discretion should be exercised in particular circumstances will not be useful. But it is possible to say that in a case such as the present, the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means." 402. In my view, it does not follow from cases such as Looseley and Bennett that the common law, or the inherent powers of the court, can be invoked to exclude, as of right, as to a statement improperly obtained by someone unconnected with the UK authorities. Those cases were concerned with wrongful acts carried out by, or participated in by, agents of the UK executive. It does not follow that the principles enunciated are to be applied to cases where nothing wrong was done by or on behalf of the executive. http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 90/113