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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kotova v Director of Public Prosecutions  EWHC 4111 (Admin) (08 December 2015)
Cite as:  EWHC 4111 (Admin)
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QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE COULSON
|DIRECTOR OF PUBLIC PROSECUTIONS||First Defendant|
|COMMISSIONER OF POLICE THE CITY OF LONDON||Second Defendant|
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Mr Timothy Cray (instructed by Crown Prosecution Service) appeared on behalf of the First Defendant and Second Defendant
Crown Copyright ©
MR JUSTICE COULSON:
2. The Russian Proceedings
3. The UK Investigation
4. The Relevant Authorities
"80 ..... We have detected the development of what may, if not arrested at an early stage, become a new form of satellite litigation, in which the exercise of the prosecutorial discretion is made subject to a judicial review or abuse of process/stay of proceedings argument in the Crown Court.
84 ..... In summary, when it is sought to advance an argument for a stay by reference to policy or guidance issued by the Director of Public Prosecutions, by way of emphasis it is worth repeating, first, that the decision whether to prosecute or not must always be made by the Crown Prosecution Service and not the court. The court does not make prosecutorial decisions. Second, provided there is evidence from which the jury may properly convict, it can only be in the rarest circumstances that the prosecution may be required to justify the decision to prosecute."
"That is for the good and sound constitutional reason that decisions to prosecute are entrusted under our constitution to the prosecuting authorities, in this case the Director of Public Prosecutions and those who work under him in the Crown Prosecution Service."
5. Double Jeopardy
5.1 The Relevant Authorities
"27 However, in the circumstances of this case the contrast in extent and seriousness between the two sets of proceedings, the extradition criminality confined, as Mr Caldwell acknowledged, to fraud against Serviware, would not be so great. A hypothetical attempt to prosecute both men again in this country on a broader charge based on both Serviware transactions, would, in my view, be vulnerable to the court directing a stay as an abuse of process."
5.2 Preliminary Issue
"There were in effect two investigations within the UK: one relates to the bribe where payment was not completed (the Canbaikal bribe), whilst the other relates to a bribe which was paid (the Kapelson bribe). The latter forms the basis of the ongoing investigation.
Within the sentencing remarks there is reference to unfinished criminal acts as being central to the Russian investigation. It appears to me that the Russian court was only concerned with the Canbaikal bribe where payment was not completed whereas the bribe which was the subject of our ongoing investigation was paid and received. It appears that Judge Gurov has used the limited details of the Kapelson bribe to show that the actions of Miss Kotova were not limited to the attempted bribe for which he had sentenced her and Mr Levedev. He did not, on the face of it, take account of the second bribe which was made to Kapelson which is the position we adopt at present in the absence of any other evidence to the contrary."
5.3 Is there a significant overlap?
"The indictment reflected all the information collected on those matters in the course of the investigation ..... The objective of this was to enable the trial court to consider all those matters on a freestanding basis and independent of the main charge on Canbaikal."
The indictment is twenty-four pages long.
5.4 Conclusions on the Double Jeopardy Point