9.11.2017 A & Ors v Secretary of State for the Home Department [2004] EWCA Civ 1123 (11 August 2004) police or prosecuting authority has been such as to justify a stay on grounds of abuse of process. 13. Next, the common law also has developed since the decision in R v Sang… In … Ex p Bennett… your Lordships' House held that the court has jurisdiction to stay proceedings and order the release of the accused when the court becomes aware there has been a serious abuse of power by the executive. The court can refuse to allow the police or prosecuting authorities to take advantage of such an abuse of power by regarding it as an abuse of the court's process. Lord Griffiths, at p 62, echoed the words of Lord Devlin that the courts 'cannot contemplate for a moment the transference to the executive of the responsibility for seeing that the process of law is not abused': see Connelly v Director of Public Prosecutions [1964] AC 1254, 1354. 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': [1994] 1 AC 42, 62. … 19. As already noted, the judicial response to entrapment is based on the need to uphold the rule of law. A defendant is excused, not because he is less culpable, although he may be, but because the police have behaved improperly. Police conduct which brings about, to use the catchphrase, state-created crime is unacceptable and improper. To prosecute in such circumstances would be an affront to the public conscience, to borrow the language of Lord Steyn in R v Latif [1996] 1 WLR 104, 112. In a very broad sense of the word, such a prosecution would not be fair." The next citation (also from Lord Nicholls' opinion) is important for Mr Emmerson's argument based on ECHR Article 6(1). It is convenient to collect the passage at this stage. "30. The question raised by Attorney General's Reference (No 3 of 2000) is whether, in a case involving the commission of an offence by an accused at the instigation of undercover police officers, the judicial discretion conferred by section 78 of the Police and Criminal Evidence Act 1984 or the court's power to stay proceedings as an abuse of the court has been modified by article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the jurisprudence of the European Court of Human Rights. I would answer that question in the negative. I do not discern any appreciable difference between the requirements of article 6, or the Strasbourg jurisprudence on article 6, and English law as it has developed in recent years and as I have sought to describe it. 31. Teixeira de Castro v Portugal 28 EHRR 101 concerned a conviction for trafficking in heroin, based mainly on statements of two police officers. The European Court of Human Rights held, at p 116, para 38, that the necessary inference from the circumstances was that these officers had 'exercised an influence such as to incite the commission of the offence'. The court concluded there had been a violation of the applicant's right to a fair trial under article 6(1). The court's statement of principle, at p 115, para 36, is not divergent from the approach of English law." Lastly I will set out just this paragraph from Lord Hoffmann's opinion: "40. … [In Ex p Bennett] the House of Lords decided that a criminal court had power to inquire into allegations that the accused had been kidnapped abroad by authorities acting in collusion with the UK police and, if it found them proved, had a discretionary jurisdiction to stay the proceedings. Lord Griffiths said that the jurisdiction was necessary to enable the courts to refuse to countenance behaviour which threatened basic human rights or the rule of law. The stay is sometimes said to be on the ground that the proceedings are an abuse of process, but Lord Griffiths described the jurisdiction more broadly and, I respectfully think, more accurately, as a jurisdiction to prevent abuse of executive power." http://www.bailii.org/ew/cases/EWCA/Civ/2004/1123.html 63/113