The Court of Appeal has upheld a ruling by the Supreme Court that ended the prosecution of two police officers accused of sexually assaulting a colleague.

Puisne Judge Juan Wolffe stayed proceedings before the two defendants were arraigned in the Supreme Court, but the Director of Public Prosecutions called on the Court of Appeal to overturn the decision.

However, counsel for the defendants argued that the DPP could not bring the matter to the Court of Appeal because the matter was halted before they were asked to enter a plea.

In a written ruling delivered this week, penned by Justice of Appeal Sir Anthony Smellie, the Court of Appeal found that the law did not permit the decision to be appealed.

“Such a finding of a right of appeal in the DPP would carry far-reaching implications for the rights of respondents such as those presently before the court,” the ruling stated.

The decision noted that the officers had been given assurances by a former DPP that they would not be prosecuted, and were then discharged from the subsequent indictment on grounds of abuse of process.

“It must now be regarded as settled that the DPP has no right of appeal against a stay of indictment where the stay is imposed other than in the context of a trial,” the ruling concluded.

“While it may seem illogical that the right of appeal arises in the context of a trial but not where a stay is imposed prior to trial, the position for which the DPP contends can now only be attained by way of express legislative change by Parliament.”

The officers involved in the case cannot be identified for legal reasons.

The complainant, a male police officer, had alleged that he was invited to play cards with two other male officers at one of their homes in April 2019.

He claimed the game turned into strip poker and consensual sexual activity.

However, he alleged, the situation escalated and the two officers “tried to rape him” as he rebuffed their advances.

He remained at the house afterwards as the other two officers engaged in sexual activity before one of them drove him home.

No complaint was made about the incident until November 2019, about seven months after the alleged event, when another officer reported the matter.

Charges against the defendants were approved in 2020. However, Larry Mussenden, then the Director of Public Prosecutions, determined that the case should not go forward.

The complainant launched a judicial review of the decision but it was upheld by Chief Justice Narinder Hargun.

Mr Mussenden was replaced as DPP that year by Cindy Clarke, who approved charges against the two men in January 2021.

The defendants appeared in the Supreme Court that year but called on the courts to stay the prosecution on the basis of an abuse of process.

Mr Justice Wolffe found that the defendants had been disadvantaged by the decision to prosecute them after they had received assurances by the former DPP that they would not be charged.

Ms Clarke brought the matter to the Court of Appeal, who heard the case this year.

Adley Duncan, for the Crown, argued that the DPP had a general right to appeal decisions in addition to options specified in the Court of Appeal Act.

He said that otherwise the courts would not have ways to challenge judges who had thrown out cases before indictment based on errors or even corruption.

“If that application is made before arraignment and a judge, being a human being, makes an error and rules, that is the end of the matter,” he said.

However, Jerome Lynch, KC, counsel for the accused officers, said the DPP could not take their complaint to the Court of Appeal because the trial had not legally begun.

He argued that the legislation did not include a general right for aggrieved parties to appeal decisions and such an interpretation could open the doors for appeals on matters of fact in addition to matters of law.

“It simply cannot be the case that it was intended that the section extend that far,” Mr Lynch said.

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