[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> AXR v Rex [2025] EWCA Crim 454 (11 April 2025) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2025/454.html Cite as: [2025] EWCA Crim 454

[New search] [Printable PDF version] [Help]

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/04/2025

Lord Justice Holroyde:

1. The applicant is charged with a number of serious offences. He applied to the trial judge to stay the proceedings as an abuse of the process of the court. The judge refused that application. The applicant applied to this court, pursuant to s35(1) of the Criminal Procedure and Investigations Act 1996, for leave to appeal against the judge's ruling. The Registrar referred the application to the full court. The court heard detailed submissions on both sides. At the conclusion of the hearing we refused leave to appeal, and indicated that we would give our reasons in writing at a later date. This we now do.
2. Reporting restrictions pursuant to s71 of the Criminal Justice Act 2003 apply to this case. We are however satisfied that publication of anything which would lead to the identification of the applicant would give rise to a real and continuing risk to his life and to the lives of his family, and that further restrictions must therefore be imposed. This necessity arises from the fact that the applicant was for a number of years registered by the police as a Covert Human Intelligence Source ("CHIS"), and in that capacity provided the police with information about serious crimes.
3. We therefore granted anonymity to the applicant, who will be referred to only by the randomly-chosen letters AXR, and heard the application in private. We further directed, pursuant to s11 of the Contempt of Court Act 1981, that there must be no publication in any form of the true name of the applicant or of anything which might lead members of the public to identify him.
4. This short version of the judgment of the court has been drafted for publication in OPEN form. It necessarily omits any reference to the facts or to circumstantial details which could undermine our order prohibiting publication of anything which would lead to the identification of the applicant. The details of the case are given in a CLOSED judgment which will not be published. We are satisfied that it is necessary to derogate to that extent from the important principle of open justice.
5. …
6. The applicant was engaged as a registered informer … . The senior police officer who authorised the use and conduct of the applicant as a CHIS noted that the scope of the applicant's conduct would be restricted to "establishing and maintaining existing and relatively 'superficial' relationships with others in a largely social setting". The officer also stated:

"By virtue of the fact that the CHIS is to be tasked to provide information in respect of crime and disorder, I authorise him to show necessary enthusiasm in these relationships, to enable him to maintain cover.

This authority does not grant any authority to participate in crime or disorder."

7. The applicant signed Terms and Conditions which were described in the document as

"… the rules that govern your action in this role. … If you fail to comply with the following instructions, you will forfeit the protection that they offer".

8. The instructions which followed included these:

"3. If you are arrested/charged for a criminal offence, your handlers are not authorised to make any assurances as to your treatment, charge or bail. You should not intimate to any other person that you are a source. …

5. You must not encourage or incite anybody to commit an offence, assist in any offence, or do or say anything that could be construed as encouragement to commit an offence. …

6. If anybody with you commits an offence, you are not to become involved but should contact your handlers at the earliest opportunity. …

8. Your identity will be protected. You must not reveal your role to anybody without first discussing it with your handlers, this includes other officers, family or friends. … "

9. At the foot of the instructions, the following words appeared, in bold:

"Be aware that should you fail to comply with the above instructions, you may become the subject of a criminal investigation. …

I have read/had read to me and understand the above instructions and will comply with them."

10. …
11. … the applicant became the subject of a separate police operation … . The officer in charge of that investigation was subsequently informed of the applicant's role as a CHIS.
12. … the applicant was identified as a person of interest in the police investigation into [the present offences]. The source unit informed the officer in charge of the investigation of the applicant's past role as a CHIS. On the following day, the source unit decided to revoke his authorisation as a CHIS.
13. … the applicant was informed that his authorisation as a CHIS had been revoked. He signed a notice to that effect.
14. …
15. In the course of the proceedings the applicant's former role as CHIS was disclosed to his legal representatives. …
16. … the applicant served a … defence statement. He denied participation in any of the crimes alleged. He asserted that he … had acted with a view to gaining information to pass on to the police. …
17. His role as a CHIS was disclosed by the source unit to the reviewing CPS lawyer, and the police met senior prosecutors to consider the case.
18. At a later CLOSED hearing, the court was informed that the prosecution would proceed against the applicant. …
19. A more detailed defence statement was later served, which made clear that the applicant intended to rely on his informer status as part of his defence.
20. …
21. The judge … gave his decision [on the application to stay proceedings as an abuse of the process] in a … written judgment. He summarised the submissions made on behalf of the applicant as being that –

"- no fair trial is possible as the prosecution have placed him in a position where he is unable to advance his defence without risk of death or serious injury and because he is unable to participate in his trial because of the circumstances in which the prosecution has placed him;

- it would be unfair to try the defendant because the State did not (and does not) have in place a sufficient robust system to protect a defendant in [the applicant's] position. The absence of a robust system is said to be demonstrated by …

- the relevant guidance should include an obligation on those responsible for the handling of an informer who has been charged with offences to inform those conducting the prosecution at the point of charge of the fact of the informer's status and the continuing consequential obligations to protect his Article 2 and Article 6 rights."

22. The judge referred to the familiar two categories of abuse of process, often referred to as limbs 1 and 2. He noted that a prosecution may be stayed under limb 1 on the ground that it would not be possible for the accused to have a fair trial; and may be stayed under limb 2 on the ground that the accused should not be tried at all and a stay was necessary to protect the integrity of the criminal justice system. …
23. The judge quoted s29(5)(e) of the Regulation of Investigatory Powers Act 2000 ("RIPA"), the terms of which are cited in paragraph [54] below. He went on to refer to the provisions of the CHIS Code of Practice, and to the prosecution submission that dissemination of a CHIS's status is not necessary until such time as that status becomes a relevant issue in criminal proceedings.
24. The judge made the following findings:

"(i) The purpose and effect of the system provided by the statute and the Code is that there should be no revelation unless it is for one of the authorised purposes and it takes place only to those who need to know. In my judgment this serves to provide protection to the informer unless and until a need arises. I am satisfied that there was a need which arose out of the wish of the informer to self-disclose. I am satisfied that the point of needing to know of [the applicant's] status was reached when he self-disclosed and later indicated his wish to rely on his status as part of his defence.

(ii) I find that it was at that point and not before that the revelation of his status became necessary. It became necessary for the purposes of criminal proceedings in order that the prosecution would be able to satisfy the statutory obligations on them which had arisen under the CPIA.

(iii) That was the system I find was in place which protected [the applicant's] Article 2 rights, because the risk to his life arose when, not before, the fact of status was revealed and relied upon as part of his defence. … [emphases in original]"

25. … [The judge] did not accept the submission that the applicant had been left with no alternative but to self-disclose his position to his legal representatives, thus placing himself and his family at risk:

"I am satisfied that a better analysis is that it was for the defendant and only the defendant to elect to reveal his status, to the extent that he considered it was necessary to do so. This is precisely what happened, revealing, in my judgement, no structural defects in the system"

26. The judge then referred to a series of risk assessments which had been carried out. He noted that there had been no challenge to the conclusions reached in those assessments. He rejected the submission that the applicant's status had not been taken into account at every stage.
27. The judge further found that the public interest test had been properly considered at the time when the decision was made to charge the applicant, and reconsidered after the applicant's status had been revealed to those conducting the prosecution. He held that there was nothing to displace the public interest in continuing the prosecution of the applicant.
28. The judge then gave detailed consideration to the submissions on behalf of the applicant which had criticised the prosecution's management of relevant and disclosable material. He considered RIPA, the Criminal Procedure and Investigations Act 1996 ("CPIA"), and a number of Codes of Practice and guidelines. He held that the dedicated source unit does not conduct a criminal investigation, and the records kept by that unit are not "obtained or inspected in the course of an investigation" unless and until the point is reached when revelation of an informer's status is made to the prosecutor. He further held that the CPIA Code of Practice did not apply to the source unit at the point of charge. The CHIS Code of Practice required records of the applicant's authorisation and use as a CHIS to be retained on a secure system. The judge held that decisions in this case to reveal the applicant's status to particular persons had been properly justified and recorded, and that it was not necessary to make a record of a decision not to reveal. He summarised his conclusions as follows:

"The position is that records in respect of [the applicant's] authorisations and use as a CHIS have been maintained on a secure system from which relevant disclosable material has been disclosed not only for the purposes of this application but also for use at any trial, subject of course to relevance and appropriate protective measures being put into place."

29. The judge next addressed the submissions that the prosecution of the applicant was an abuse of the process of the court, under both limbs of that jurisdiction. Under limb 1, it was argued that the applicant could not have a fair trial. Under limb 2, it was argued that it would be unfair to try the applicant because the state did not have in place a robust system to protect someone in his position, so that the prosecuting authority was made aware of the need to protect the applicant's art 2 and art 6 rights at the time when the decision to prosecute was made.
30. The judge accepted that there was no system whereby the status of a CHIS was automatically provided to a prosecutor at the point of charge. He held, however, that such a system would be contrary to s29(5)(e) of RIPA; contrary to the RIPA Codes of Practice; and contrary to the reasonable expectation of a CHIS that his status and activity would remain confidential. The judge held:

"The risk to the safety of the [applicant] flows from the dissemination of his status. The more who know of it, the greater the risk to him. It is only when his status becomes an issue in the criminal proceedings brought against him that revelation of the fact that he is (or was) a CHIS is required by law."

31. The judge concluded that the applicant could fairly be tried. He had elected to place his status as an informer before a jury, as he was entitled to do. The prosecution were alive to the risks to the safety of the applicant and his family, and would be able to put in place measures to manage that risk. …
32. The judge further concluded that no basis had been shown for a stay of the proceedings under limb 2. The applicant had failed to identify any feature(s) which made it necessary in this case for his status to be revealed to the prosecutor at the point of charge. The judge held that the necessity to reveal the applicant's status arose, not when he decided to waive confidentiality by telling his lawyers, but when he made his status an issue in the case by filing his latest defence statement. The judge rejected the criticisms which had been made of the system for informing the CPS that a defendant was a CHIS. He held that, consistently with the CHIS Code, the system created a presumption of confidentiality which permitted revelation of the status of a CHIS only when it was necessary for an identified authorised purpose, and which limited the revelation to the minimum necessary for that purpose. On the facts of the present case, he concluded that the system had ensured that the applicant's handlers learned of other police interest in him; had led to the revelation of the applicant's status to senior officers investigating him; and had resulted in reviews and risk assessments which were fully and properly considered.
33. The judge concluded that there was no ground to challenge the decision to prosecute the applicant. At the time of charge, it could not be known whether the applicant would make his status an issue at trial. When he did so, there was a necessity for those with conduct of the prosecution to be made aware of his status. The judge held that a process which operated on a need-to-know basis must, as a pre-condition of the revelation of highly confidential information, ensure that there was a genuine need to do so, especially in circumstances where it would trigger engagement of an informer's art 2 rights. The judge was therefore satisfied that it was not unfair or oppressive to try the applicant, who could receive a fair trial, and that the applicant had not made good the submission that it would be an abuse of the process to proceed to trial.
34. The judge therefore refused the application for the proceedings to be stayed.
35. The applicant puts forward four grounds of appeal. He argues that the judge failed to take into account relevant matters relating to the applicant's status (ground 1); erred in finding an art 2-compliant system (ground 2); misdirected himself as to the relevance of the prosecutor's decision to prosecute (ground 3); and failed to take into account relevant considerations in relation to the possibility of a fair trial (ground 4).
36. It is submitted on behalf of the applicant that the circumstances of this case engage the public interest in two ways: the need for allegations of serious crime to be tried fairly; and the need to protect informers, and not to deter others from assisting the police. It is submitted that those interests are not in conflict and that they, and an informer's art 2 and art 6 rights, can and should all be accommodated. But, it is argued, the present system for handling informers does not do so, either because an adequate system is not in place or because those who handle informers are not given sufficient guidance.
37. The central problems, it is submitted, are:

i) there is a lack of guidance to handlers in relation to disclosure of information to prosecutors when an informer comes under investigation;

ii) there is no requirement for handlers to record any of their decisions other than a decision to disseminate information about an informer.

38. The consequences of those defects in the system are said to be that the applicant, having been arrested and held in custody, had no means of contacting his handlers, and they did not contact him. … [The applicant] was therefore compelled to disclose his status to his legal representatives in circumstances where they were not subject to any vetting, and there could be no management of the risk arising from such self-disclosure. The duty of confidentiality owed by the legal representatives does not, it is submitted, eliminate that risk.
39. The focus of ground 1 is the submission made to the judge that the prosecution, in breach of its obligations, was unaware of the applicant's status at the point of charge. …
40. As part of his argument, counsel submits that where an informer is being investigated for a crime, his handler is part of "a criminal investigation" within the meaning of section 2 of the CPIA Code of Practice, and is therefore subject to the duties imposed on investigators by that Code, including the duty under paragraph 4.1 to record "material which may be relevant to the investigation" and the duty under section 6 to prepare schedules of unused material or, exceptionally, to reveal sensitive information separately to the prosecutor (see paragraphs 6.15, 6.16). It is further submitted that disclosure should be made to the prosecutor before a decision is taken whether to charge an informer.
41. As to ground 2, it is submitted that the State must conduct these proceedings so as to protect the applicant's rights under articles 2 and 6. …
42. Reliance is placed on Kolyadenko and others v Russia (2012: application no 17423/05) [2012] ECHR 338 in which the European Court of Human Rights stated at [151] that art 2 covers not only situations where an act or omission on the part of the State led to a death, but also situations where, although the person concerned survived, there clearly existed a risk to his or her life.
43. Counsel argues that the system shown by the facts of this case was focused on the need not to reveal the applicant's status, and did not reflect the need for the prosecution, defence and court to be aware of his status in order to ensure a fair trial. It is submitted that, in compliance with the State's art 2 systems duty, the prosecutor needs to know of an informer's status in order to consider the public interest in proceeding, to avoid taking false points against the accused, and to comply with its duties of disclosure to the accused; the defence needs to know, in order to be able to advise about potential defences or about the admissibility of evidence; and the court needs to know, in order to ensure appropriate trial management. …
44. In the alternative it is submitted that, even if disclosure of the applicant's status was not required, a record should have been made of any decision either to disclose or not to disclose.
45. Counsel accepts that the CPS have not been guilty of any misconduct in prosecuting the applicant. He does not submit that it could never be fair to charge the applicant … . But, he argues, those responsible for handling informers had no system of review to enable them to decide whether to make disclosure to a prosecutor, and no system to vet or approve any lawyer who may be told of an informer's status. As a result, it is submitted, the applicant is being prosecuted in circumstances which endanger his life. It is submitted that, in the absence of any proper system of notification and/or of record keeping, pursuing the trial of the applicant is executive misconduct of such gravity as to offend the court's sense of justice and propriety and to undermine public confidence in the criminal justice system. It is therefore submitted that the proceedings should have been stayed as a limb 2 abuse of process. …
46. Ground 3 …
47. As to ground 4, …
48. Each of the grounds is resisted by the respondent. …
49. As to ground 2, the respondent submits that the judge applied the correct test. Reliance is placed on R v BKR [2023] EWCA Crim 903 in which the court noted at [34] that limb 2 abuse of process only arises where a defendant can receive a fair trial:

"It seems clear that something out of the ordinary must have occurred before a criminal court may refuse to try a defendant charged with a criminal offence when that trial will be fair."

50. At [63], the court emphasised that when considering the second limb of the abuse of process jurisdiction –

"… the relevant factor … is the impact on the court and the system of justice. Impact on the defendant may be relevant, but it will only be one factor in the balance which has to be struck."

51. The respondent further submits that the purpose and effect of the system provided for by RIPA s29 and by the CHIS Code of Practice is that there should be no revelation of an informer's status unless it is necessary for one of the five authorised purposes set out in paragraph 8.4 of the Code of Practice, and then only to those who need to know. The informer's art 2 rights are thereby protected: his status remains confidential unless and until revelation of it is necessary for an authorised purpose. A system of monthly intelligence checks was and is in place to ensure that source handlers become aware of the fact that a CHIS is under investigation and has been detained. The handlers are then able to make a judgement as to what disclosure, if any, should be made to a prosecutor. Revelation of a source's status to a prosecutor will not be necessary in every case, and indeed will seldom be necessary; but the applicant's submissions would lead to a necessity to disclose an informer's status in every case, which would not assist his safety.
52. It is submitted that an informer should have the right to decide whether to rely on his role as an informer in support of his defence. If he decides to do so, the State then comes under a duty to take steps to guard against risk. That, it is submitted, is what happened in this case.
53. The necessity for revelation of an informer's status, it is submitted, must therefore be judged on a fact-specific basis. The RIPA Code of Practice requires dissemination of information about an informer's status to be made as narrowly as possible, and the provisions of that Code protect an informer's art 2 rights. …
54. So far as is material for present purposes, s29 of RIPA provides:

"s29 Authorisation of covert human intelligence sources

(1) Subject to the following provisions of this Part, the persons designated for the purposes of this section shall each have power to grant authorisations for the conduct or the use of a covert human intelligence source.

(2) A person shall not grant an authorisation for the conduct or the use of a covert human intelligence source unless he believes–

(a) that the authorisation is necessary on grounds falling within subsection (3);

(b) that the authorised conduct or use is proportionate to what is sought to be achieved by that conduct or use; and

(c) that arrangements exist for the source's case that satisfy –

…

(iii) the requirements of subsection (5) …

(3) An authorisation is necessary on grounds falling within this subsection if it is necessary –

…

(b) for the purposes of preventing or detecting crime or of preventing disorder …

(4) The conduct that is authorised by an authorisation for the conduct or the use of a covert human intelligence source is any conduct that–

(a) is comprised in any such activities involving conduct of a covert human intelligence source, or the use of a covert human intelligence source, as are specified or described in the authorisation;

(b) consists in conduct by or in relation to the person who is so specified or described as the person to whose actions as a covert human intelligence source the authorisation relates; and

(c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described. …

(5) For the purposes of this Part there are arrangements for the source's case that satisfy the requirements of this subsection if such arrangements are in force as are necessary for ensuring–

…

(c) that there will at all times be a person holding an office, rank or position with the relevant investigating authority who will have responsibility for maintaining a record of the use made of the source;

(d) that the records relating to the source that are maintained by the relevant investigating authority will always contain particulars of all such matters (if any) as may be specified for the purposes of this paragraph in regulations made by the Secretary of State; and

(e) that records maintained by the relevant investigating authority that disclose the identity of the source will not be available to persons except to the extent that there is a need for access to them to be made available to those persons. …"

55. By s71 of RIPA, the Secretary of State is required to issue codes of practice relating to the exercise and performance of the powers and duties under a number of provisions, including s29. By s72, persons exercising or performing such duties or powers must have regard to the provisions of any code of practice then in force. The codes of practice are admissible in evidence.
56. Pursuant to s71, the Secretary of State has issued and revised the CHIS Code of Practice. For present purposes, the August 2018 revision of that Code of Practice is relevant.
57. Paragraph 2.12 of the Code of Practice requires public authorities to ensure that all use or conduct of a CHIS is in compliance with relevant articles of the Convention, particularly articles 6 and 8.
58. By paragraph 6.6, the day-to-day responsibilities of the officer appointed as a handler of a CHIS include –

"recording the information supplied by the CHIS

monitoring the CHIS's security and welfare"

59. Paragraph 7.4 requires the keeping of detailed records of the authorisation and use made of a CHIS.
60. Section 8 of the Code of Practice provides guidance on the procedures and safeguards to be applied in relation to the handling of any material obtained through use or conduct of a CHIS. By paragraph 8.3, all material so obtained must be handled in accordance with safeguards which the authority has implemented in line with the requirements of the Code. By paragraph 8.4, dissemination, copying and retention of such material "must be limited to the minimum necessary for the authorised purposes". The circumstances in which something is necessary for the authorised purposes include where the material:

" is necessary for the purposes of legal proceedings, or

is necessary for the performance of the functions of any person by or under any enactment."

61. Paragraph 8.7 provides:

"Where material acquired through use or conduct of a CHIS could be relevant to pending or future criminal or civil proceedings, it should be retained in accordance with established disclosure requirements."

62. Paragraph 8.16 notes that material so acquired may need to be disseminated within and between public authorities. It requires that material which tends to indicate the activity or identity of a specific CHIS should be classified and handled as highly sensitive material. The paragraph goes on to state that the obligation of the public authority, to limit disclosure to the minimum that is necessary for the authorised purposes, is enforced –

"… by prohibiting disclosure to persons who have not been appropriately vetted and also by the need-to-know principle in accordance with section 29…(5)(c) of RIPA: material must not be disclosed to any person unless that person's duties, which must relate to one of the authorised purposes, are such that he or she needs to know about the material to carry out those duties. In the same way, only so much of the material may be disclosed as the recipient needs."

63. Later paragraphs of the Code of Practice provide for the protection of the identity of a CHIS. They point out that those who take on the role of a CHIS may place themselves at considerable risk. Paragraph 8.22 emphasises the responsibility of all organisations to protect the identity of a CHIS and of others who may be affected by disclosure of the identity of a CHIS. It continues:

"Organisations using CHIS should attempt to protect the identities of CHIS by all reasonable and lawful means possible and where appropriate by neither confirming nor denying the existence or identity of the CHIS."

64. The CPIA Code of Practice (as revised in September 2020) contains provisions relating to the recording of information and the retention and disclosure of material. The definitions in paragraph 2.1 include the following:

"1 a criminal investigation is an investigation conducted by police officers with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it. …

3 an investigator is any police officer involved in the conduct of a criminal investigation. All investigators have a responsibility for carrying out the duties imposed on them under this code, including in particular recording information, and retaining records of information and other material."

65. …
66. As a preliminary point, we are satisfied that this court has jurisdiction to hear an appeal against an interlocutory ruling on abuse of process: see R v BHQ [2023] EWCA Crim 1018, in which it was held at [43] that the court should not

"… remake the judge's findings of fact or … perform the balancing exercise afresh, unless the judge has erred in law or approach, taken into account something irrelevant or failed to consider something relevant, or reached a decision that no reasonable judge could reach."

67. Turning to the issues in this case, we begin by commending the care and thoroughness with which the judge addressed in his ruling the detailed submissions which he had received.
68. We think it logical to start by considering the applicant's submission that, in circumstances where a CHIS is suspected of crime, the present system of handling a CHIS does not satisfy the State's art 2 duty.
69. We accept the applicant's submission that in such circumstances, the rights of the CHIS under both art 2 and art 6 are engaged. We do not, however, accept the criticisms which the applicant makes of the present system.
70. The essence of the scheme established by RIPA s29 and the CHIS Code of Practice is that the fact that a person acts or has acted as a CHIS may only be disclosed where it is necessary for one of the authorised purposes, and only to the extent that disclosure is necessary. We have no doubt that accords with the understanding and the anxious wishes of all who are prepared to act as a CHIS.
71. We cannot accept that a necessity for disclosure to a prosecutor inevitably arises, or generally arises, whenever a CHIS comes under investigation for a suspected crime. We reject the submission that, when a CHIS is arrested for suspected criminality, his handler somehow becomes an investigator of that criminality and is immediately subject to the requirements of the CPIA and the associated Code of Practice. The necessity for disclosure of the suspect's role as a CHIS only arises when it becomes relevant to the investigation which other officers are conducting; and it will often only become relevant if the suspect relies on his CHIS role in support of his defence. Save perhaps in exceptional circumstances, we agree with the respondent that it must be for the CHIS to decide whether he chooses to take that course.
72. When the role of a CHIS does become relevant, then the source unit must consider what disclosure is necessary, and to whom. The prosecutor, having received information from the source unit, will then come under the usual disclosure obligations under the CPIA and the Code of Practice, with any relevant material being listed on a sensitive schedule and treated accordingly.
73. The submissions on behalf of the applicant would in our view lead to a most unsatisfactory outcome. If source handlers were required always, or generally, to disclose the suspect's status as a CHIS to the prosecutor whenever a CHIS was being investigated, they would often be making such disclosure when there was no necessity to do so at all, and/or to persons to whom disclosure was not necessary. They would be doing so without the agreement of the person who would be exposed to risk if information as to his status fell into the wrong hands. That would be doing so, even if – as not infrequently happens – a CHIS did not even want his own legal representatives to know of his role. We have no doubt that it would become harder to recruit and make use of CHIS if it became known that any arrest would be likely to trigger disclosure of very sensitive information.
74. The role of a CHIS can be a difficult and dangerous one. Those who agree to act in that role, and agree to be bound by rules such as were imposed on the applicant in this case, know that is so. If a CHIS is accused of criminality, whether connected with the subject matter of his informing or not, he may have a difficult decision to make as to whether to rely on his CHIS role in support of his defence. He, of all people, is in the best position to decide whether he wishes to take the risk involved in doing so. If he wishes to rely on his role in support of his defence, he must of necessity give instructions about it to his legal representatives; and any disclosure which the prosecution has to make must of necessity be given to his legal representatives.
75. True it is that a CHIS who is arrested and held in custody may not immediately be able to alert his handler to his predicament. The system of monthly intelligence checks does, however, protect the CHIS against his position remaining completely unknown to the source unit. We find it difficult to think of any circumstances in which it could fairly be said that a delay in the source unit's learning of an arrest would compel a CHIS to disclose his role against his own wishes.
76. Counsel representing the applicant is not, of course, required to spell out the features of a system which it is submitted would more fully meet the applicant's art 2 rights. Nonetheless, the fact that no alternative system was suggested is an indication that in this sensitive area, no better system of protection for a CHIS can readily be identified.
77. We are therefore satisfied that the present system is compliant with the art 2 rights of a CHIS.
78. We turn to the specific points raised in the grounds of appeal. …
79. As to abuse of process, we consider below the submissions that no fair trial is possible. As to the submission that it was an affront to justice for the applicant to be tried, we note that in R v BKJ [2024] EWCA Crim 1354 at [35], the court accepted that category 2 abuse is not confined exclusively to cases involving prosecutorial misconduct; but –

"… given that cases in which a clear finding of misconduct leads to a conclusion that criminal proceedings offend the court's sense of justice and propriety, we think it inevitable that cases will be still more rare in which such a conclusion is reached in the absence of any misconduct."

80. In the present case, we are unable to accept that the judge should have stayed the prosecution as a category 2 abuse of process. It was the applicant's choice to rely in his defence on his role as a CHIS. He was entitled to make that choice, but we do not accept that he was compelled to do so: it was open to him to defend himself without reference to that role.
81. Moreover, neither the applicant's complaint that he was "left out in the cold" after his arrest, nor his complaint that he felt obliged to disclose his CHIS role to his legal representatives, can be said to have given rise to an imminent risk to his life. The decision in Kolyadenko v Russia, on which the applicant relies, is therefore adverse to his case on art 2.
82. We see no substance in the complaint that the source unit failed to keep adequate records: it seems to us that a handler might usefully record a considered decision not to make a disclosure to a prosecutor in relation to a suspect's role as CHIS; but we are not persuaded that there is any duty to record what is no more than a maintaining of the norm. …
83. It must also be remembered that when considering category 2 abuse of process, a balance has to be struck between the interests of the accused and the public interest in the prosecution of crime. In the circumstances of this case, there can in our view be no realistic suggestion that the prosecution should have been stayed even if a fair trial was possible. The judge was correct to assess the reasonableness of the prosecutor's decision as part of the necessary balancing exercise. It was plainly in the public interest to prosecute the serious charges against the applicant. He had chosen to raise the issue of his former CHIS role; but as case law clearly shows, that was not a trump card which could entitle him to escape prosecution. If the decision to prosecute was reasonable, and if a fair trial could be held, it is impossible in the circumstances of this case to argue that the prosecution should not proceed to trial.
84. As to ground 4, which was not strongly pursued in oral submissions, we have no doubt that the judge considered all relevant matters, and that he reached a decision which cannot be said to be wrong. … We are satisfied … that a fair trial is therefore possible.
85. It was for those reasons that we refused the application for leave to appeal.
86. We conclude by expressing our thanks to counsel for their submissions. We cannot name them in our OPEN judgment, as to do so may lead to identification of the applicant.