DS & Ors, R. v [2017] EWCA Crim 1410

[2017] EWCA Crim 1410201703102/111/110/109/107/106/104 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Case No T20167506/T20170336
ON APPEAL FROM INNER LONDON CROWN COURT
HIS HONOUR JUDGE DAVIES QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/09/2017
Before
THE RIGHT HONOURABLE LORD JUSTICE BURNETTTHE HONOURABLE MRS JUSTICE CARR DBETHE HONOURABLE MRS JUSTICE CHEEMA-GRUBB DBE
Between
REGINAAppellantDSRespondentsSWRespondentDHRespondentELRespondentSLRespondentDNRespondentSHRespondent
Mr Dorian Lovell-Pank QC and Ms Catherine Pattison (instructed by Crown Prosecution Service, London Complex Casework unit) for AppellantMr Henry Blaxland QC and Mr Tom Wainwright (instructed by Bindmans LLP) for Respondent DSMr David Malone (instructed by Kellys Solicitors) for Respondent SWMr Daniel Chadwick (instructed by Ally Lindsay Solicitors) for Respondent DNMr Roy Headlam (instructed by AB Mackenzie Solicitors) for Respondent ELMr Imran Mahmood (instructed by David Rubie Mitchell Solicitors) for Respondent SLMr Owen Greenhall (instructed by Kellys Solicitors) for Respondent DH for SH was not represented and did not appearHearing Hearing date: 14th September 2017
Judgment Approved

Introduction

[1]This is an appeal pursuant to section 58(2) of the Criminal Justice Act 2003 against a terminating ruling of HHJ Owen Davies QC given on 5 July 2017. The issue for determination in this court is whether the judge was entitled to stay prosecutions for conspiracy to commit the common law offence of public nuisance applying the principles articulated by the House of Lords in R v Rimmington and Goldstein [2005] UKHL 63, [2006] 1 AC 459.At the conclusion of argument on 14 September 2017 we announced our decision. We granted leave to appeal, allowed the appeal and directed that the trial continue. These are our reasons for doing so.

Prosecution case on the facts

[2]On 31 October 2015 an illegal rave took place at a privately-owned disused London Fire Brigade building in Lambeth, South London. The building was occupied without the permission of its owner. The organisers of the event had not applied for a licence to the local authority to sell alcohol or play music even though, had they applied for one, it is inconceivable it would have been granted. The purpose of the event was to attract large numbers of people to enjoy loud music with the inevitable consequence of causing substantial disturbance to local residents. There is no issue that it did so. Unfortunately, there was also substantial violence and disorder in the immediate vicinity of the building which led to the conviction of eleven people, not any of these respondents, for violent disorder. The prosecution case was that each of the respondents was involved, with a specific role, in the organisation of the illegal rave.[3]The unauthorised event had been arranged by a collective known as “Scumtek” and was advertised via social media networks as an event called “Scumoween”. Some 10,000 flyers were printed (having been ordered by DS). The location and time were to be revealed only on the night via social media. DN was responsible for spreading word of the event. The prosecution case was that the organisers of the event wanted to organise an illegal rave in such a way that the responsible authority could not prevent it. Each Respondent, by being involved in the organisation, must have appreciated that there was a real risk that, if the event happened as planned, it would create noise (from music and from the crowd of people attending) of such volume as to endanger the comfort of local residents.[4]The event in due course took place, as planned, on 31 October 2015. People arrived from 21.15 onwards in vans with alcohol and equipment. They broke into the building. EL, SL, SW and SH were involved in conveying music equipment and beverages. The organisers had arranged marshals to keep control of those who attended. Music was played at a very high volume. DH was advertised on the flyer as being a disc jockey. There was dancing, barbeques and the provision of alcohol.[5]A public nuisance was created, says the prosecution. Police assistance was called for by members of the public. Officers arrived from around 22.15 onwards by which time some 100 people were inside the venue. The operational judgement of the police was that it was impractical to stop the event, given the numbers and conduct involved. Instead, steps were taken to avoid more people joining it. An estimate from one of the Fire Brigade’s security staff on duty at the building when it was invaded put the number of people who managed to get in at about 450. The situation escalated. Large crowds formed outside the cordons which had been constructed. They were angry at being stopped from joining the rave. Several hundred people were involved in the large-scale violence and disorder. More police officers attended, some now in riot gear and with dogs, but were unable to enter the building safely until around 05.30 the following morning. In common parlance, what occurred that evening was indeed a riot.[6]Having entered the building, the police issued a direction pursuant to section 63 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) for those present to leave. We shall return to this statutory provision because it was relied upon before the judge, although not by Mr Blaxland QC on behalf of the respondents before us, in support of the application for a stay on the basis that the police should have used the power earlier. It appears that control was restored at this stage. It is of note that the prosecution accept that they are unable to prove that three of the Respondents, DS, SW and SL, were present at the scene.[7]The prosecution was focussed on the organisation of the event. Each Respondent was said to have been responsible for organising an illegal rave using telephones and social media, each playing a specific role. The evidence of violent disorder was said to be relevant in demonstrating the sheer volume of people attending and also why the police were unable to halt the rave in its early stages.

Procedural history

[8]The Respondents were jointly indicted for conspiracy to cause public nuisance contrary to section 1(1) of the Criminal Law Act 1977 between 6 October and 2 November 2015.[9]The original Particulars of Offence stated that the Respondents (save for DH):
“….conspired together and with others to cause a nuisance to the public by allowing large numbers of people to commit trespass at the former London Fire Brigade Building, Whitgift Street, London SE11 6AT, cause damage inside and outside the premises and cause large amounts of noise during the night thereby affecting the public.”
[10]On 16 June 2017 the Particulars of Offence were amended to remove reference to trespass and criminal damage, instead specifying that (again between 6 October and 2 November 2015) the Respondents:
“ …conspired together and with others unknown to cause a public nuisance, namely the organising of a large unauthorised gathering of persons on private land, without permission, where loud music would be played”
. By amendment at the same time the Respondent DH was added to the proceedings.[11]The matter was listed for a six week trial commencing on 3 July 2017. All Respondents, led by DS and SW, applied at the outset to stay the proceedings as an abuse of process. In summary, they submitted that there should be a stay since the Crown did not have a “good reason” for charging the Respondents with conspiracy to commit the common law offence of public nuisance and should, instead, have charged them with conspiracy to commit a relevant alternative statutory offence. The words “good reason” are taken from paragraph [30] of the speech of Lord Bingham of Cornhill in Rimmington.[12]The Crown opposed the application. None of the statutory offences would sufficiently reflect the criminality of the conduct alleged. Reliance was placed on R v Ryder-Large & Castrillon [2008] EWCA Crim 2966 to show that there was here a “good reason” to proceed with conspiracy to commit the common law offence.

Rimmington

[13]Rimmington was a case in which the House of Lords reviewed the development of the common law offence of public nuisance and defined its parameters. The appellants had been convicted of public nuisance. They argued that the offence lacked certainty and offended the European Convention on Human Rights. That argument failed. In the course of the appeal it was argued(1) that conduct formerly chargeable as the crime of public nuisance had now become the subject of express statutory provision;(2) that where conduct was the subject of express statutory provision it should be charged under the appropriate statutory provision and not as public nuisance; and(3) that accordingly the crime of public nuisance had ceased to have any practical application or legal existence.[14]Public nuisance covers a wide range of activities many of which have engaged Parliament’s attention and resulted in discrete legislation which provides powers to various bodies to prevent nuisance and creates many offences in connection with different categories of nuisance. Lord Bingham commented (at [29]) that there was a “large measure of truth” in the first of the appellants’ contentions. He noted a large range of statutory offences that could be prosecuted for behaviour that would fall within the definition of public nuisance. Of particular note for the purposes of these appeals, he referred to section 79(1) of the Environmental Protection Act 1990 (“the 1990 Act”) which identified nine categories of statutory nuisance (including noise injurious to health or amounting to a nuisance) and the criminal consequences of failing to obey an abatement notice in respect of them. Lord Bingham touched on section 63 of the 1994 Act which confers powers of the police to remove persons attending or preparing for a rave “at which amplified music is played during the night …and is such as, by reason of its loudness and duration and the time at which it is played, is likely to cause serious distress to the inhabitants of the locality.” He continued:
“30. There is in my opinion considerable force in the appellants’ second contention under this head. Where Parliament has defined the ingredients of an offence, perhaps stipulating what shall and shall not be a defence, and has prescribed a mode of trial and maximum penalty, it must ordinarily be proper that conduct falling within that definition should be prosecuted for the statutory offence and not for a common law offence which may or may not provide the same defences and for which the potential penalty is unlimited…..It cannot in the ordinary way be a reason for resorting to the common law offence [of public nuisance] that the prosecutor is freed from mandatory time limits or restrictions on penalty. It must rather be assumed that Parliament imposed the restrictions which it did having considered and weighed up what the protection of the public reasonably demanded. I would not go to the length of holding that conduct may never be lawfully prosecuted as a generally expressed common law crime where it falls within the terms of a specific statutory provision, but good practice and respect for the primary statute do in my judgment require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise. 31. It follows from the conclusions already expressed in paragraph 29 to 30 above that the circumstances in which, in future, there can properly be resort to the common law crime of public nuisance will be relatively rare. It may very well be, as suggested by JR Spencer in his article, “There is surely a strong case for abolishing the crime of public nuisance”
. But as the courts have no power to create new offences…so they have no power to abolish existing offences. That is a task for Parliament, following careful consideration (perhaps undertaken in the first instance by the Law Commission) whether there are aspects of the public interest which the crime of public nuisance has a continuing role to protect. It is not in my view open to the House in resolving these appeals to conclude that the common law crime of causing a public nuisance no longer exists.”[15]Lord Nicholls of Birkenhead, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood all agreed with Lord Bingham. Lord Rodger (at [52] to [54]) noted that Parliament did not abolish the common law offence, as it might have done. He recorded the explanation given by counsel for the Crown for charging public nuisance in respect of one of the appellants as being to avoid a time-bar which Parliament had chosen to enact. He concluded this part of his speech by observing:
“It is not for the Crown to second-guess Parliament’s judgment … by deliberately setting out to reject the applicable statutory offences and to charge the conduct in question under common law in order to avoid the time-limits … which Parliament has thought appropriate. … [U]nless and until it is changed, its provisions should be respected and the Crown should not devise a strategy to avoid them.”

Other Authority

[16]In Ryder-Large the court dismissed an appeal against the judge’s rejection of the submission that a prosecution for public nuisance caused by arranging, organising and conducting a rave, contrary to common law, was an abuse of process in the light of Rimmington. Reference was made to the 1990 Act and section 63 of the 1994 Act. At [16] Bennett J said:
“Section 63 gives powers to the police which are additional to the common law offences of causing a public nuisance. But more particularly, so far as Mr Castrillon is concerned, there is no, so far as we understand it, statutory provision under which he could have been prosecuted. The essence of the offence under section 63 is that the police give a direction to somebody to leave the land and if they fail to leave then an offence may be committed. Mr Castrillon was not asked to leave. What the police were anxious to do was to get the music turned down to an acceptable level; something in which unfortunately they did not succeed.”
The short point was that the appellant could not be prosecuted for disobeying a direction, because no such direction was given.[17]In R v Dady and others [2013] EWHC 475 (QB) the court declined to order a voluntary bill of indictment on an application to dismiss charges of conspiracy to defraud contrary to common law, where the offending was captured by the statutory offence under s. 297 of the Copyright, Designs and Patents Act 1988. Coulson J said:
“21. The matters of difficulty created by section 3 of the Criminal Law Act 1977, such as the six month time limit and the need for permission from the DPP, are procedural safeguards which were plainly regarded by Parliament as important. In my judgment, it would be wrong to allow the Crown now to ignore these safeguards, and to charge what would otherwise be a precise statutory offence under the wide common law offence of conspiracy to defraud. 22. In addition, of course, to allow the Crown to prefer this voluntary Bill would be contrary to Lord Bingham’s guidance in Rimmington, because it would be depriving the defendant of the protection of being charged with an offence which was summary only.”

Statutory offences

[18]Before the judge, the Respondents had relied upon three statutory offences. We have touched on two of them. Section 63 of the 1994 Act creates an offence of failing to comply with a direction given by a police superintendent or above to leave the land or premises in which persons are gathered or gathering to hold a rave. Section 79 of the 1990 Act identifies the noise-related statutory nuisance. Section 80 creates the mechanisms for preventing or abating such nuisance. In outline, a local authority which is satisfied that a statutory nuisance exists, or is likely to occur or recur, may serve an abatement notice. The person served with a notice may appeal to the Magistrates’ Court. A person who fails without reasonable excuse to abide by such a notice is guilty of a summary offence.[19]The third statutory offence referred to before the judge was created by the Licensing Act 2003 (“the Licensing Act”).[20]The Crown accepts that it might be possible to prove a breach of section 136 of the Licensing Act by one or more of the respondents. Section 1(1) of that Act provides:
“(1) For the purposes of this Act the following are licensable activities- a) The sale by retail of alcohol; b) The supply of alcohol by or on behalf of a club to, or to the order of a member of the club, c) The provision of regulated entertainment, and d) The provision of late night refreshment.” “Regulated entertainment”includes the playing of recorded music in the presence of an audience.” a) The sale by retail of alcohol; b) The supply of alcohol by or on behalf of a club to, or to the order of a member of the club, c) The provision of regulated entertainment, and d) The provision of late night refreshment.”
[21]Section 4 provides that a licensing authority must carry out its functions under the Licensing Act with a view to promoting the following licensing objectives:
“a) the prevention of crime and disorder; b) public safety; c) the prevention of public nuisance; d) the protection of children from harm.”
[22]Section 136 then creates a criminal offence in relation to unauthorised licensable activities: “(1) A person commits an offence if-(a) he carries on or attempts to carry on a licensable activity on or from any premises otherwise than under and in accordance with an authorisation, or(b) he knowingly allows a licensable activity to be so carried on. (2) Where the licensable activity in question is the provision of regulated entertainment, a person does not commit an offence under this section if his only involvement in the provision of the entertainment is that he-….e) plays recorded music… … (4) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding £20,000, or to both.” (a) he carries on or attempts to carry on a licensable activity on or from any premises otherwise than under and in accordance with an authorisation, or (b) he knowingly allows a licensable activity to be so carried on.

The terminating ruling

The Judge stayed the proceedings, in summary, for the following reasons:

[23](a) The continuation of the prosecution would have been a manipulation of the court process. It was not for the court to make up for the shortcomings of legislation or to give effect to the desire of the prosecution as to which charges were to be brought where the “proper charges”were thought to be inadequate;(b) There were statutory offences applicable: under the 1990 Act; the 1994 Act and the Licensing Act. In each case, potential statutory defences existed that were not available to the respondents on a charge of conspiracy to cause a public nuisance;(c) No “good reason” had been provided to justify bringing a charge of conspiracy to cause a public nuisance as opposed to one of the statutory offences;(d) The answer to the argument that any statutory offence would be inadequate to reflect the criminality was that Parliament had had the opportunity to make the causing of a public nuisance a statutory offence, and not seen fit to do so;(e) Ryder-Large was distinguishable since it did not relate to a conspiracy and did not necessarily involve the commission of a nuisance as defined by common law;(f) It was necessary to stay the proceedings in order to preserve the integrity of the justice system. This appeal The Crown’s position

This appeal

[24]Section 67 of the Criminal Justice Act 2003 provides that this court may not reverse a ruling on an appeal such as this “unless it is satisfied a) that the ruling was wrong in law b) that the ruling involved an error of law or principle, or c) that the ruling was a ruling that it was not reasonable for the judge to have made.”[25]Whilst the Crown has brought this appeal under both sections 67(a) and (c) of the Criminal Justice Act 2003, there is in reality but a single ground of appeal here, namely that the judge was wrong in law to stay the proceedings for abuse of process. The Crown acknowledges that there is an overlap between the two grounds that it advances.[26]The Crown’s argument under section 67(a) proceeds as follows:(a) The ruling amounted to an unwarranted intrusion into the prosecutorial discretion to select what the Crown considers to be an appropriate charge best reflecting the overall criminality of those involved;(b) The judge’s interpretation of relevant statutory alternatives was wrong in law. There was no relevant statutory alternative;(c) In such circumstances, and in the absence of bad faith and where the respondents could have a fair trial, the ruling was wrong in law.[27]Under section 67(c) the Crown contends that the judge’s decision was not reasonably open to him:(a) Ryder-Largewas not distinguishable;(b) It was unreasonable for him to determine that there was a relevant statutory alternative;(c) It was unreasonable for the judge to reject overall criminality as a “good reason” for the Crown to have departed from any relevant statutory alternative;(d) It was unreasonable for the judge to exercise his discretion to stay in circumstances where it involved interfering with prosecutorial discretion as to charge, where there was no relevant statutory alternative, where there was no bad faith by the Crown, and where the defendants could have a fair trial.[28]Mr Lovell-Pank QC for the Crown emphasised that the police and CPS were faced with a well organised illegal rave, sprung in the night on a densely populated part of London which took a large number of police officers to bring under control and close down.[29]The Code for Crown Prosecutors (at paragraph 6.1) directs that prosecutors should select charges which:(a) Reflect the seriousness and extent of the offending supported by the evidence;(b) Give the court adequate powers to sentence and impose appropriate post-conviction orders; and(c) Enable the case to be presented in a clear and simple way.[30]The prosecution here considered and rejected the statutory offences in this area of offending, including under the 1990 Act, the 1994 Act and the Licensing Act 2003. Each was considered and rejected as insufficient. This was not simply a licensing case, or a case of loud music to be dealt with by way of the service of an abatement notice or a case of asking people to leave premises. It was pre-eminently a public nuisance case.

The Respondents’ position

[31]As to the first ground of appeal, the Respondents submit variously:(a) In Rimmington the House of Lords clearly established that it would be wrong for a prosecution to be brought for the offence of causing a public nuisance where there is an appropriate statutory alternative. Where the prosecution offends that principle, then the remedy is to stay the proceedings. If the court considers that there is no “good reason” that is a sufficient basis to impose a stay. The Crown does not have an unfettered right to prosecute;(b) The question of whether or not a relevant statutory alternative exists is a question of fact. There have been instances where organisers of raves have been prosecuted for statutory alternatives. (Mr Malone for SW reminded us of this again orally by reference to certain examples.) The existing police powers and various statutory alternatives provide ample tools to deal with raves and ravers. If Parliament had intended a specific offence to deal with rave organisers, it would have enacted the same;(c) A finding that a relevant statutory alternative exists does not mean that the alternative captures the criminality in precisely the same way. The differences may be relevant to sentence;(d) Section 79(1) of the 1990 Act EPA and section 63 of the 1994 Act were stated expressly to be statutory alternatives to causing noise by public nuisance in Rimmington. The Crown accepted that an offence was committed under section 136 of the Licensing Act; the objection was that this offence did not catch precisely the criminality alleged.[32]As to the second ground, the judge’s ruling to stay was a decision within the generous ambit of his discretion.[33]Mr Blaxland QC, in oral submissions for DS to us adopted by all of the Respondents, emphasised the narrowing of the Particulars of Offence by way of amendment in June 2017. The reduced particulars focussed on the organising of a “large unauthorised gathering…without permission”, which he submitted reflected the language of licensing, and the playing of “loud music”,the mischief at which the charge was aimed. Rimmington opened the door to the court treating a failure to follow good practice as an abuse of process. The judge was perfectly entitled to rule as he did on the basis of the amended indictment, in the light of a clear statutory alternative under the Licensing Act.

Discussion

[34]We cannot accept that the House of Lords in Rimmington created a new and free-ranging category of abuse of process which allows a court to stop a prosecution in these circumstances whenever it considers that the prosecution lacks a good reason for having charged public nuisance rather than a statutory alternative. No question arises that the Respondents cannot have a fair trial. As the judge recognised, before staying the proceedings it was necessary to be satisfied that the prosecution amounted to a manipulation of the process which the court could not sanction. That reflected well-known principles.[35]In R v Crawley [2014] EWCA Crim 1028 Sir Brian Leveson P summarised the scope of abuse of process at (at [17]-[18]):
“[T]here are two categories of case in which the court has the power to stay proceedings for abuse of process. These are, first, where the court concludes that the accused can no longer receive a fair hearing; and, second, where it would otherwise be unfair to try the accused or, put another way, where a stay is necessary to protect the integrity of the criminal justice system. The first limb focuses on the trial process and where the court concludes that the accused would not receive a fair hearing, it will stay the proceedings; no balancing exercise is required. The second limb concerns the integrity of the criminal justice system and applies where the Court considers that the accused should not be standing trial at all, irrespective of the potential fairness of the trial itself…..[T]here is a strong public interest in the prosecution of crime and in ensuring that those charged with serious criminal offences are tried. Ordering a stay of proceedings, which in criminal law is effectively a permanent remedy, is thus a remedy of last resort.”
[36]As regards the second limb in Crawley (at [21]) the President added:
“…cases in which it may be unfair to try the accused…will include, but are not confined to, those cases where there has been bad faith, unlawfulness or executive misconduct.”
In such cases, “the court is concerned not to create the impression that it is condoning malpractice by law enforcement agencies or to convey the perception that it will adopt the approach that the end justifies the means: the touchstone is the integrity of the criminal justice system.”[37]The categories of abuse under the second limb are not closed. But tactical manipulation or misuse of procedures in order to deprive the accused of some protection provided by the law is one such accepted category. However, we note that in DPP v Humphrys [1977] AC 1 Lord Salmon said (at 46) that a judge did not have “any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene”.[38]In our opinion, Lord Rodger captured the essence of the matter in cases of this sort in his discussion (set out above) of respecting the will of Parliament. A prosecution for public nuisance brought instead of a statutory offence which covers substantially the same ground to avoid an awkward time limit or seek a sentence beyond the statutory maximum might well be such an abuse. So too might be a calculated decision to deny a defendant the benefit of a statutory defence not available when charged with public nuisance. The fact that a prosecutor has not followed good practice, as Lord Bingham put it, would not be enough.[39]The judge, in indicating that Parliament had not created a statutory offence of public nuisance and that the court should not be expected to fill the gap, appeared to overlook that the statutory offences which might apply in cases which concern nuisance supplement, but do not entirely replace, the common law offence of statutory nuisance. That was part of the ratio decidendi of Rimmington. We were shown the Law Commission report Simplification of the Criminal Law: Public Nuisance and Outraging Public Decency, (2015) Law Com No.358 which recommended that the offence should be put on a statutory footing and, in doing so, recognised that it should retain a place over and above the existing technical statutory offences. True it is that Parliament has not, at least as of yet, adopted the recommendation. But in the meantime, the common law offence survives and can be prosecuted.[40]Furthermore, the judge appears to have strayed beyond looking at whether statutory offences could be charged, why they were not charged and whether the failure to do so amounted to an abuse of process, into considering whether the local authority should have used the abatement notice procedure under the 1990 Act, or the police given a direction earlier than they did under the 1994 Act. He appears to have taken the view that the statutory procedures designed to enable the authorities to prevent or curtail public nuisances somehow substituted for the offence of causing a public nuisance. We recognise that were the local authority or police cynically to refrain from using their powers of prevention so as to enable a prosecution for public nuisance to follow, something we consider to be verging on the unimaginable, an abuse argument might run.[41]We pressed Mr Blaxland in oral argument about the relevance of the 1990 Act and the 1994 Act. No abatement notice had been served by the local authority under section 80 of the 1990 Act. There was no possibility of that procedure being activated in the circumstances of this case. To serve an abatement notice before an event occurs requires the local authority to have both notice of its happening and sufficient information to enable the use of the statutory scheme. There was no abatement notice for these respondents to breach. The way in which the event was alleged to have been organised made that inevitable. A prosecution for failing to comply with an abatement notice was an impossibility. In the circumstances of this case, as Mr Blaxland accepted, consideration of the 1990 Act was an irrelevance.[42]So too the 1994 Act. The police did not give a direction to anyone, including those of the respondents present, to leave the premises until the very end of the disturbances. There was no question of a prosecution for a failure to comply. This provision, too, was an irrelevance. Moreover, as was highlighted in Ryder-Large, the police powers under section 63 of the 1994 Act are additional to, not in substitution for, the common law offence of causing of a public nuisance. We would add that even if a direction had been given at the outset of the rave and those respondents present failed to leave, that failure would not cover the essence of the criminality being alleged and a prosecution for public nuisance would have been appropriate.[43]Mr Blaxland retreated to the firmer ground of section 136 of the Licensing Act. Even assuming that the prosecution could prove that the involvement of each of these Respondents was such that individually they had a legal duty to obtain a licence (itself uncertain), the first question is whether breach of the licensing laws captures the essence of the offending. The clear answer to that question is “no”. The Licensing Act establishes a single integrated scheme for licensing premises which are used for the sale or supply of alcohol, to provide regulated entertainment, or to provide late night refreshment. Liability falls on someone who fails to obtain or comply with a necessary licence. Section 136 is not aimed at the organisation of an illegal rave or its consequences, certainly not of the magnitude in question here. Mr Lovell-Pank informed us that this rave involved the largest deployment of Metropolitan Police since the 2011 London riots. A charge under section 136 would not reflect the seriousness and extent of the offending supported by the evidence and (at least arguably) would not give the courts adequate powers to sentence and impose post-conviction orders. It is inevitable, in the event of conviction, that aggravating factors will include the consequences of the rave, even if the respondents were not directly involved in, for example, the criminal damage inflicted or the violent disorder that occurred. The prosecution say they were entirely foreseeable consequences.[44]The offence under section 136 is thus not a realistic alternative to the common law offence of public nuisance on the facts of this case. At best, as the Crown submits, breach of the licensing laws is part and parcel of the overall conspiracy.[45]In short, the gravamen of the alleged offending here, namely the agreement to organise a secret, largescale and illegal rave in a residential built-up area, the location of which was to be deliberately withheld from the relevant authorities, does not fall comfortably or at all within the identified statutory alternatives. The common law offence of public nuisance goes above and beyond the statutory offences identified which is why, for example, Lord Bingham in Rimmington was unable to exclude the possibility that there might be circumstances when the common law offence would need to be invoked. This is not a case like Dady where the judge was able (at [21]) to conclude that the statutory offence in question “precisely caught”the criminal conduct being alleged.[46]For these reasons, we conclude that the judge was wrong in law to conclude that there was one or more relevant alternative statutory offence. The absence of a relevant alternative statutory offence makes it impossible to impugn the prosecution’s decision to charge as it did. The basis for the judge’s decision to stay falls away. Furthermore, contrary to the judge’s conclusion, there was no conduct which could properly be considered as falling into the second type of abuse to which we have referred.

Abuse of process even if there were a relevant alternative statutory offence or offences

[47]We have indicated that, had the police given the relevant direction for the purpose of the 1994 Act, a failure to comply with it would not have captured the criminality alleged in this case. In the context of this case, consideration of the noise abatement notice procedure is unreal, even on a hypothetical basis.[48]We emphasise that the court should be slow to interfere with a prosecutorial decision taken in good faith where there is no suggestion that the respondents could not receive a fair trial. We have rejected the Respondents’ submission that a failure to follow “good practice”as identified in Rimmington will amount to an abuse of process without more. As the authorities referred to above demonstrate, an abuse of process arises when the integrity of the justice system is under threat, not merely where good practice is not followed, serious though that may be.[49]The view that the charge of conspiracy to cause public nuisance was the most appropriate course in all the circumstances, even on the basis of the amended indictment was a reasonable, indeed obvious, one for the prosecution to take, following the criteria laid down in paragraph 6 of the Code for Crown Prosecutors.

Conclusion

[50]The staying of criminal proceedings is an option of last resort, requiring clear and compelling justification. We are satisfied that the Respondents’ prosecution for conspiracy to cause a public nuisance does not represent an abuse of process on the facts alleged. There is no assault on the integrity of the criminal justice system such as to justify in any way the effective termination of these proceedings.[51]Mr Blaxland submitted that even were we to come to that conclusion we should refuse leave because the interests of justice, including the passage of time since the alleged offending, do not require the decision to be overturned and the prosecution to continue. We disagree. In those circumstances, we granted leave, allowed the appeal and directed that the trial continue.

Cited in 1 later judgment