202501491 B4 - [2025] EWCA Crim 969

The prosecution contends that the judge did not err in his ruling. It remains the prosecution’s case that the cases of Saunders and Bayode were not only decided on substantially different facts but they do not definitively determine the issue of whether a re-trial in such circumstances would be an abuse of the court’s process. However, if the judge’s ruling is deemed to be incorrect or if the consequence of his ruling is that a retrial for the appellant on count 1 is deemed to be unfair, then the indictment should not be stayed as an abuse of process. It is submitted that the conviction on count 2 could simply be excluded from the jury’s consideration. Alternatively the court could quash the conviction on count 2 and allow a retrial to proceed on both counts as per R v Fernandez.