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Abuse of Process

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General Principles

The basic principle is that it is for the prosecution, not the court, to decide whether a prosecution should be commenced and, if commenced, whether it should continue. In Environment Agency v Stanford [1998] C.O.D. 373, DC, Lord Bingham LCJ said:

"The jurisdiction to stay, as has been repeatedly explained, is one to be exercised with the greatest caution ... The question of whether or not to prosecute is for the prosecutor. Most of the points relied on in support of an argument of abuse are more profitably relied on as mitigation."

This principle was confirmed in Wandsworth London Borough Council v Rashid [2009] EWHC1844 (Admin). Here it was held that the magistrates' court had been wrong to find that a prosecution under the Environmental Protection Act 1990 section 34 was an abuse of process. Although, the prosecuting local authority's waste management enforcement policy allowed for courses of action other than prosecution, it was for the authority to decide when to prosecute, and it was only when an abuse was plainly shown that a court should intervene.

However, the courts have an overriding duty to promote justice and prevent injustice. From this duty there arises an inherent power to 'stay' an indictment (or stop a prosecution in the magistrates' courts) if the court is of the opinion that to allow the prosecution to continue would amount to an abuse of the process of the court.

Abuse of process has been defined as something so unfair and wrong with the prosecution that the court should not allow a prosecutor to proceed with what is, in all other respects, a perfectly supportable case (Hui Chi-Ming v R [1992] 1 A.C. 34, PC). 'Unfair and wrong' is for the court to determine on the individual facts of each case. The concept of a fair trial involves fairness to the prosecution and to the public as well as to the defendant: DPP v Meakin [2006] EWHC 1067.

The inherent jurisdiction of the court to stop a prosecution to prevent an abuse of process is to be exercised only in exceptional circumstances: Attorney General's Reference (No 1 of 1990) [1992] Q.B. 630, CA; Attorney General's Reference (No 2 of 2001) [2004] 2 A.C. 72, HL. The essential focus of the doctrine is on preventing unfairness at trial through which the defendant is prejudiced in the presentation of his or her case. Courts that are asked to exercise their inherent power to stay should first consider whether other procedural measures such as the exclusion of specific evidence or directions to the jury might prevent 'trial unfairness' and allow the prosecution to continue.

The impetus towards abuse applications has increased since the incorporation of the European Convention of Human Rights and Fundamental Freedoms (ECHR) into domestic law, but the appellate courts have maintained a consistently restrictive attitude towards the application of the doctrine. The clear preference remains that cases should continue to trial and that the judge should use other powers (such as the discretion to exclude unfairly obtained evidence) to regulate the conduct of the trial so as to avoid unfairness to the defendant: see, for example, R (Ebrahim) v Feltham Magistrates' Court; Mouat v DPP [2001] 2 Cr. App. R. 23; DPP v Hussain (1994) 158 JP 602.

Courts should not use their inherent power to stay proceedings merely to discipline the prosecution. Case law makes it abundantly clear that the power to stay on the grounds of abuse is NOT designed to be a tool with which the courts can apply direct discipline to the police or the prosecuting authorities. In R v Crown Court at Norwich ex parte Belsham (1992) 94 Cr. App. R. 382, QBD, for instance, Watkins LJ said (at p. 395, emphasis added):

"It should also be borne in mind that a stay on the basis of an abuse of process must never be seen to be used simply as a form of disciplinary disapproval of the CPS. That it should be seen to be so is impermissible."

This principle was confirmed and extended to the police by the House of Lords in the case of Bennett v Horseferry Road Magistrates' Court and Another [1993] 3 All E.R. 138, 151, HL; see also R v Methyr Tydfil Magistrates' Court and Day ex parte DPP [1989] Crim. L. R. 148.

Whilst the courts do not have any power to apply direct discipline to the police or the prosecuting authorities, they can (in Lord Griffiths' words in the Bennett case) "refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution."

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Guidance

Discretion to stay proceedings

The leading case on the application of abuse of process remains Bennett v Horseferry Magistrates' Court (above). This case confirmed that an abuse of process justifying the stay of a prosecution could arise in the following circumstances:

i. where it would be impossible to give the accused a fair trial; or

ii. where it would amount to a misuse/manipulation of process because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.

These categories are not mutually exclusive and the facts of a particular case may give rise to an application to stay involving more than one alleged form of abuse: R v Birmingham and Others [1992] Crim. L.R. 117. The power to stay is available to all courts, but should only be exercised if exceptional circumstances exist which would result in prejudice to the defendant which cannot be remedied in other ways.

The list of categories below and in the schedule of cases (Annex 1) is not exhaustive. In referring to the cases, it is important to note that staying a prosecution is a discretionary remedy. Each case will depend on its own facts and the appellate courts have discouraged an overly strict application of precedent or the excessive citing of previous authorities: R v Sheffield Stipendiary Magistrate ex parte Stephens (1992) 156 J.P. 555; R v Newham Justices ex parte C [1993] Crim. L.R. 130.

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Fair Trial Impossible

a. Delay

As the Lord Chief Justice observed in R v Dunlop [2006] EWCA Crim. 1354, [2007] 1 Cr. App. R. 8: "The passage of time is, of itself, no impediment to the fairness of a retrial." Delay per se will not necessarily lead to proceedings being stayed without trial, particularly if there is no evidence of bad faith or manipulation on the part of the prosecution, and/or the defendant has caused or substantially contributed to the period of delay. Reference to the case law on delay reveals that courts are less concerned with the period of time that has elapsed than the effect that delay can be said to have had on the ability of the defendant to mount an effective case.

In R v Gateshead Justices ex parte Smith (1985) 149 J.P. 681, the Divisional Court warned that courts should be careful not to create an artificial limitation period for bringing summary cases to trial when no such period had been prescribed by Parliament. A stay would only be appropriate if (a) there had been inordinate or unconscionable delay due to the prosecution's inefficiency and (b) prejudice to the defence could either be proved or inferred.

Article 6(1) of the European Convention on Human Rights guarantees the right to a fair trial "within a reasonable time." In Attorney General's Reference (No 2 of 2001) (above), the majority in the House of Lords confirmed the earlier statement of the Court of Appeal on the implications of Article 6 for the question whether a prosecution should be stayed by reason of delay alone. The opinion of the House (set out in the speech of Lord Bingham) was:

"Criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in Article 6(1) of the Convention only if (a) a fair hearing is no longer possible or (b) it is for any compelling reason unfair to try the defendant."

This reasoning has been applied subsequently by the Administrative Court in R (on the application of Hereford District Council) v Amanda Jane Wiles [2005] E.W.H.C. 306 Admin. In this case, which concerned the power of magistrates to stay criminal proceedings on the grounds of delay, the court ruled that in order to impose a stay the magistrates had to find that owing to a delay a defendant had suffered serious prejudice to the extent that no fair trial could be held. A stay would not be granted where the trial process itself was equipped to deal with the matters of complaint. This principle was reaffirmed by the Court of Appeal in Altaf v The Crown Prosecution Service, West Midlands [2007] EWCA Crim. 691, in which Moses LJ said:

"A breach of the defendant's right to have a criminal charge determined within a reasonable time, contrary to Article 6(1) of the Convention, will not necessarily require criminal proceedings to be stayed. It will only be appropriate to stay or dismiss proceedings if there can no longer be a fair hearing or it will otherwise be unfair to try the defendant ... Once there has been a conviction, this court should only quash that conviction if the hearing has proved to be unfair, or it was unfair to try the defendant at all."

In R v TBF [2011] EWCA Crim 726, the Court of Appeal quashed convictions for sexual offences as an abuse of process after delays of between 30 and 40 years. There was no good reason for the long delay in this case. The complainants' mother had confronted the appellant 27 years previously but had not reported him to the police. The delay had provided an opportunity for collusion between complainants and other witnesses, a witness for the defendant had died and much of the other documentary evidence on which the defendant would have relied was no longer available.

The Court of Appeal reviewed the case law and laid down the following 5 propositions:

i. the court should stay proceedings on some or all counts of the indictment if and only if it is satisfied on the balance of probabilities that by reason of delay a fair trial is not possible on those counts;

ii. usually the proper time for the defence to make such an application and for the judge to rule upon it is at trial, after all the evidence is called;

iii. in assessing what prejudice has been caused to the defendant on any particular count by reason of delay, the court should consider what evidence directly relevant to the defence case has been lost through the passage of time. Vague speculation that the lost documents or deceased witnesses might have assisted the defendant is not helpful. The court should also consider what evidence has survived the passage of time. The court should then examine critically how important the missing evidence is in the context of the case as a whole;

iv. having identified the prejudice caused to the defence by reason of the delay, it is then necessary to consider to what extent the judge can compensate for that prejudice by emphasising guidance given in standard directions or formulating special directions to the jury. Where important independent evidence has been lost over time, it may not be known which party that evidence would have supported. There may be cases in which no direction to the jury can dispel the resultant prejudice which one or other of the parties much suffer, but this depends on the facts of the case;

v. if the complainant's delay in coming forward is unjustified, that is relevant to the question whether it is fair to try the defendant so long after the events in issue. In determining whether the complainant's delay is unjustified, it must be firmly borne in mind that victims of sexual abuse are often unwilling to reveal or talk about their experiences for some time and for good reason.

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b. Adverse media publicity

Excessive and adverse media reporting may make a fair trial impossible and thus lead the court to stay proceedings: R v McCann and Others (1991) 92 Cr. App. R. 239. The defendant's application was successful in R v Stone [2001] Crim. L.R. 465, where a witness at trial had retracted his evidence subsequent to the jury returning its verdict and had later informed journalists that the evidence he had given was false.

However, in the case of R v Dunlop (above), the Court of Appeal rejected the submission that adverse publicity would make a fair retrial impossible (under Part 10 of the Criminal Justice Act 2003). This decision was made on the basis that any recollection that the jury might have of publicity about the case would pale in significance to the legitimate prejudicial effect of being told that the defendant had, on a number of occasions, confessed to the murder and that he had pleaded guilty to perjury in relation to his denial of being guilty of that offence.

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c. Non-disclosure by prosecutor

The prosecution's failure to disclose material may lead the courts to stay proceedings on grounds of abuse of process: R v Birmingham and Others (above). However, a stay should not be imposed unless the defendant can show that he or she would suffer such prejudice that a fair trial would not be possible.

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d. Inability of defence to examine evidence or to question prosecution witnesses

The leading case on the issue of defence inability to examine evidence is R (Ebrahim) v Feltham Magistrates' Court; Mouat v DPP [2001] 2 Cr. App. R. 23. That case concerned the non-availability of a video recording that would have, allegedly, contained relevant material. In such circumstances, the court will first consider the nature and extent of the duty, if any, of the investigating authority and/or of the prosecutor to obtain and/or retain the material in question. If there is no duty (under the CPIA 1996 Code of Practice or in the Attorney General's Guidelines on Disclosure) to obtain and/or retain the material before the defence first seeks its retention, the subsequent trial will not be unfair on that ground. If there has been a breach of the obligation to obtain and/or retain the relevant material, it will be necessary to decide whether the defence has shown, on a balance of probabilities, that owing to the absence of the relevant material, the defendant would suffer serious prejudice to the extent that a fair trial could not take place.

This issue was considered by the European Court of Human Rights in Sofris v S [2004] Crim. L.R. 846. The Court held that Article 6 of the ECHR (the right to a fair trial) would only be violated as a result of the destruction of evidence where the loss of evidence put the defendant at a disadvantage compared with the prosecution.

The defence's inability to question prosecution witnesses can also result in a successful stay of proceedings on the grounds of abuse of process: R v J.A.K. (1992) Crim. L.R. 30.

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Misuse of Process

Examples from decided cases of stays where it would be unfair to try the defendant because there has been a misuse of the court's process are as follows:

a. Proceedings begun or continued in breach of promise not to prosecute

Unfairness may arise where proceedings are commenced or continued in breach of a promise not to prosecute: R v Croydon Justices ex parte Dean [1993] Q.B. 769.

In R v Bloomfield [1997] 1 Cr. App. R. 135, it was held to have been an abuse of process to proceed with a prosecution where, at a previous plea and directions hearing, prosecuting counsel had indicated informally to defence counsel that the prosecutor proposed to offer no evidence against the defendant. This proposal had been repeated before the judge in his chambers, and the matter had then, at the prosecution's request, been adjourned to another day for no evidence to be offered. In these exceptional circumstances, it was an abuse of process to proceed with the prosecution.

However, cases like Bloomfield are likely to be rare. There will be no abuse of process where there is no suggestion of bad faith or substantial prejudice to the defendant: R v Jobe [2004] E.W.C.A. Crim. 3155; R v Mulla [2004] 1 Cr. App. R. 6. In Mulla, the Court of Appeal held that there had been no abuse of process where the prosecution had indicated to the judge in a case of causing death by dangerous driving that it had decided to accept a plea of guilty to careless driving. When invited by the judge to reconsider that decision, the prosecution had decided to pursue the original charge. The appellant had been aware from the outset that the judge was unhappy with the original decision, and it was only a short time before the change of decision. There had been no prejudice to the appellant.

On 28 November 2006, the Lord Chief Justice (LCJ) delivered a judgment for the Court of Appeal in R v Abu Hamza [2007] 1 Cr. App. R. 27. This judgment is highly relevant to cases where abuse arguments are raised on the basis of breach of an undertaking not to prosecute. The LCJ stated at paragraph 50:

"... circumstances can exist where it will be an abuse of process to prosecute a man for conduct in respect of which he has been given an assurance that no prosecution will be brought. It is by no means easy to define a test for those circumstances other than to say that they must be such as to render the proposed prosecution an affront to justice."

He went on to say that:

"Only in rare circumstances will it be offensive to justice to give effect to [the public interest that those who are reasonably suspected of criminal conduct should be brought to trial]. Such circumstances can arise if the police, who are carrying out a criminal investigation, give an unequivocal assurance that a suspect will not be prosecuted and the suspect, in reliance on that undertaking, acts to his detriment."

The Court of Appeal's decision in Abu Hamza, and the authorities noted above suggest that it is not likely to constitute an abuse of process to proceed with a prosecution unless there has been:

(a) an unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted; and

(b) the defendant has acted on the representation to his detriment.

Even then, if facts come to light that were not known when the representation was made, this may justify proceeding with a prosecution despite the representation.

However, when considering the reinstitution of proceedings, it is important to remember that merely because such a course of behaviour does not amount to an abuse, it still nevertheless needs to accord with our overall policy on reinstitution.

Further guidance can be found in the Legal Guidance Reconsidering a Prosecution Decision.

In the case of Crown Prosecution Service v Mattu [2009] EWCA Crim 1483, a case of conspiracy to import Class A drugs, a detailed basis of plea had been agreed and approved by the court. The court found that it would be an abuse of process for a prosecution to take place for related money-laundering matters where the case advanced by the prosecution was wholly inconsistent with the basis of plea in the earlier case. In this case the basis of plea had been carefully drafted and was extremely comprehensive. The prosecution had been involved in agreeing its terms for submission to the court, following which the judge had considered it suitable and proceeded to sentence. The court confirmed that the basis of plea had therefore achieved a status which precluded the prosecution from attempting to go behind it.

The court (Pill LJ at para.20) observed that there will be cases where fresh evidence emerges and circumstances change so that it may sometimes be possible for the prosecution to circumvent a basis of plea to which they had previously agreed. However in this case it would be an abuse of process to do so.

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b. Decisions as to the institution/continuation of prosecutions

The jurisdiction to stay proceedings on this basis will be sparingly exercised; the courts have repeatedly stressed that the decision whether or not to prosecute is for the prosecutor. In Hui Chi-Ming v R (above), it was held not to be an abuse of process to prosecute a secondary party for murder when the principal had been convicted of manslaughter and when pleas of guilty to manslaughter had been accepted from other secondary parties. There had been abundant evidence of murder against the appellant; the acquittal of the principal on the charge of murder appeared perverse; and the appellant had chosen to run a defence that would have resulted in his complete acquittal had it succeeded, rather than accept a conviction for manslaughter.

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c. Prosecutions following the imposition of cautions or conditional cautions

The House of Lords and the Divisional Court have made it clear that the decision to administer either a simple or conditional caution may be judicially reviewed: Jones v Whalley [2006] UKHL 41 and R (on the application of Guest) v DPP [2009] E.W.H.C. 594 (Admin). This may occur where it is shown: that proper procedures have not been followed; the offence is outside the Director's Guidance on Conditional Cautioning; the Director's Guidance on Youth Conditional Cautioning; or is otherwise unreasonable on Wednesbury principles. The decision to authorise and then administer a caution or conditional caution may be quashed and the caution or conditional caution set aside.

With respect to conditional cautions where a re-review discloses that the original decision to authorise a conditional caution was wrong, immediate action should be taken to rescind the decision.

Where re-review leads to the decision being rescinded and the conditional caution being set aside in favour of prosecution, this fact should be specifically stated in the CPS response to any originating summons for judicial review. The single judge at the Divisional Court is likely to take into account the steps that have been taken to undo the effect of the erroneous decision when deciding whether permission should be granted for the judicial review to be heard.

The principle has been clear for some time that even when a caution has been administered this may not preclude a private prosecution: Hayter v L [1998] 1WLR 654. In this case there was no abuse of process even though the two defendants agreed to be cautioned and admitted their guilt. They had both signed a form indicating that they knew that the caution did not prevent commencement of proceedings by an aggrieved party. The court held that the decision to bring a private prosecution should not be fettered by the court and that the court could exclude any admission under section 78 of PACE or at common law to ensure fairness.

The Divisional Court stated in the case of Guest that if the offender was put back in the position he was in had the decision not to prosecute never been taken, any subsequent prosecution of the offender would not necessarily amount to an abuse of process. Indeed, Lord Justice Goldring and Mr Justice Sweeney stated that it would be more of an affront to justice were such a prosecution not brought.

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Authority to set aside conditional cautioning decisions

The duty of public authorities to act fairly and the concept of legitimate expectation underpin English administrative law. This concept is closely linked with the rule of law entitling individuals to foresee with some certainty the consequences of their actions.

A legitimate expectation can arise in a number of circumstances: R v North and East Devon Health Authority ex parte Coughlan (1999), but in this context perhaps the most relevant is where a public body makes a representation to a claimant or pursues a course of conduct in relation to it which was relied on by the claimant and the body subsequently seeks to resile from the representation or the course of conduct. Authorities are clear that the court must decide whether the frustration of the expectation is so unfair that to take a new and different course of action would amount to an abuse of power. Several cases illustrate the development of this concept.

R v Inland Revenue Commissioners, ex parte Preston [1985] AC 835: The applicant was assured by the Inland Revenue that it would not raise further inquiries on certain tax affairs if he agreed to forgo interest relief which he had claimed and to pay a certain sum in capital gains tax. The House of Lords ruled that if a public body gives undertakings which conflict with its statutory duty, it was in principle entitled to go back on the undertaking. However, if the authority made an assurance and then exercised its statutory power in a manner which caused unfairness, that exercise could be viewed as an abuse of power and the undertaking upheld by the courts.

R v Inland Revenue Commissioners, ex parte MFK Underwriting Agencies Ltd [1990] 1 WLR 1545: The court held that the Inland Revenue could not withdraw from a representation if it would cause: substantial unfairness to the applicant; if the conditions for relying upon any such representation were fulfilled; and if holding the Inland Revenue to the representation did not prevent it from exercising its statutory duties.

R v Inland Revenue Commissioners ex parte Unilever Plc [1996] STC 681: The Court of Appeal held that the Inland Revenue could not discontinue a practice, applied consistently for 25 years, of accepting annual tax refund claims from the applicant after the expiry of a statutory time limit and without providing notice. Although the Inland Revenue had neither followed any deliberate general policy, nor made a clear and unambiguous representation, its sudden change of conduct was an unfair breach of the applicant's legitimate expectations and therefore an abuse of power.

R v (Nadarajah) v SoS Home Department, R (Abdi) v Same [2005] TLR 14 December: In this case the Court of Appeal said:

"where a public authority has issued a promise or adopted a practice which represented how it proposed to act in a given area, the law would require the promise or practice to be honoured unless there was a good reason not to do so".

These public law authorities are consistent with criminal jurisprudence. They recognise the capacity of pubic bodies to set aside or reverse their own decisions provided that an unconscionable unfairness does not ensue. Indeed, the revocation of some decisions is governed by statute. For example, section 97 of the Town and Country Planning Act 1990 sets out the legislative framework in relation to revoking and modifying planning permission and section 76 of the Nationality, Immigration and Asylum Act 2002 gives the Secretary of State the power to revoke indefinite leave to enter or remain in the UK.

Therefore, where a conditional caution is given which conflicts with the Director's Guidance on Conditional Cautioning and the Conditional Cautioning Code of Practice, or the Director's Guidance on Youth Conditional Cautioning and the Code of Practice for Youth Conditional Cautions, the conditional caution can in principle be set aside.

Having established this core principle, each case then falls to be considered on its merits as to whether such a setting aside leads to unfairness or abuse of process.

In the case of R v Bloomfield [1997]1 Cr Ap Rep.135 the Court of Appeal upheld an abuse of process on the basis that no explanation had been given for the reversal of a decision not to prosecute. The court considered that an injustice had been done to the appellant. The same reasoning was applied to grant a stay in R (on the application of the DPP) v Taylor [2004] EWHC Admin 1554. But helpfully in R v Yacub Ebrahim [2003] EWCA Crim 1881 the court was reminded that Bloomfield is not to be regarded as a guideline decision. Where an abuse is alleged because the prosecution has changed its mind, cases have to be decided by reference to their own particular facts.

In R v Yacub Ebrahim, the CA upheld the decision of the judge to allow the prosecution to go back on a decision given in court to accept a plea to a lesser offence and try the defendant on a more serious charge instead. The particular circumstances of that case were that the judge himself had asked the prosecution to reconsider their earlier decision and they did so within a couple of hours. The defendant had come to court that day fully expecting to be tried so there was no particular hardship for him.

Further Guidance can be found in the Legal Guidance chapter, Incorrect or inappropriate conditional cautioning decisions.

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d. Prosecutions following the imposition of Fixed Penalty Notices

The Divisional Court has adopted a similar stance in respect to Fixed Penalty Notices imposed by police officers. In R v Gore and Maher [2009] E.W.C.A Crim 1424 the Divisional Court confirmed that where a Fixed Penalty Notice had been issued erroneously it would not be an abuse of process to subsequently prefer charges. In this particular case, police officers attended a street incident. They relied on verbal reports and issued Fixed Penalty Notices to two individuals at the time for minor public order offences. However, the police officers subsequently reviewed CCTV evidence and obtained a statement confirming the victim in the street incident had in fact suffered a fractured elbow that required two operations. Both defendants were charged with inflicting grievous bodily harm. Applications to stay proceedings on the basis this was an abuse of process were refused.

This decision was upheld in the Divisional Court where it was confirmed that, at the time of issuing the Fixed Penalty Notices, the police had not been in possession of all of the facts. If they had, the Fixed Penalty Notices would have been wholly inappropriate. Distinguishing the case of Jones and Whalley, Simon LCJ confirmed that, "The reality is that on the night in question the defendants must have been thanking their lucky stars that they got away with the serious violence they had perpetrated. It was not an abuse of process for justice to catch up with them".

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e. Manipulation of particular procedures

Unfairness may arise where prosecutors deliberately manipulate court procedures. In R v Rotherham Justices ex parte Brough [1991] C.O.D. 89, the CPS had deliberately taken steps to ensure that a defendant who was charged with an offence that would be triable only on indictment in the case of an adult did not appear before the court until he had reached the age where the justices ceased to have a discretion whether or not to deal with him themselves. This was held not to amount to an abuse of process because, on the facts, the conduct of the prosecution showed, at most, a lack of judgment rather than misconduct or bad faith. Furthermore, there was no prejudice to the defendant because the justices would probably have committed the case to the Crown Court anyway, and in the event of conviction the judge would take account of the defendant's age at the time of the offence and the circumstances of his committal.

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f. Avoidance/manipulation of statutory time limits

The prosecution may be open to abuse arguments where it brings additional charges on the expiry of custody time limits in order to prevent the release of an accused on bail (R v Great Yarmouth Magistrates ex parte Thomas and Others [1992] Crim. L.R. 116), or where it lays an information just within the time limit for commencing a prosecution simply to keep its options open and fails to serve a summons for some months thereafter (R v Brentford Justices ex parte Wong [1980] 73 Cr. App. R. 67).

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g. Improper substitution of a charge

In R v Harlow Magistrates' Court ex parte O'Farrell [2000] Crim. L.R. 589, it was an abuse of process for the prosecution, upon realising after the magistrates had retired to consider sentence that the charge was punishable only by way of a fine, to invite the magistrates back into court and then invite them to substitute a charge in respect of the same facts which carried the possibility of a custodial sentence. However, in R v Sheffield Justices ex parte DPP [1993] Crim. L.R. 136, the Divisional Court held that the prosecution was entitled to substitute a charge of common assault for section 47 OAPA assault where the defendant had elected trial.

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h. Unconscionable behaviour by the executive

This category of the doctrine of abuse is more exceptional than those described above. It arises from the duty of the High Court (first articulated in the case of Bennett v Horseferry Magistrates' Court) to oversee executive action so as to prevent the State taking advantage of acts that threaten either basic human rights or the rule of law (including international law).

Applications for a stay based on this ground cannot be determined in any tribunal below the High Court because they involve the judiciary exercising a supervisory function over the actions of the executive (Bennett v Horseferry Road Magistrates' Court, per Lord Griffiths at 152 H-J). Where the defence wishes to make such an application at the beginning or as a preliminary to trial, the proper procedure is for the instant proceedings to be adjourned and for the defence to commence proceedings in the High Court for a declaration that continuing the prosecution would amount to an abuse of the process.

It is unlikely that the relevant circumstances will arise very often. They are most commonly encountered in relation to attempts to avoid the normal extradition procedures or where oppressive methods have been used to investigate crime (although the category is not limited to these areas alone).

In Bennett v Horseferry Road Magistrates' Court, there was a challenge to proceedings where the defendant had been brought to the UK from South Africa. It was held that it was an abuse of process for a person to be forcibly brought into the jurisdiction of the court in disregard of extradition procedures.

The principles explained in Bennett were applied in R v Mullen [1999] 2 Cr. App. R. 143, although in that case the Court of Appeal stressed that there may be cases in which the seriousness of the crime is so great, relative to the nature of a particular abuse of process, that it would be a proper exercise of judicial discretion to allow the prosecution to succeed.

In R v Looseley; Attorney General's Reference (No 3 of 2000) [2002] 1 Cr. App. R. 29, the House of Lords held that:

i. it is not acceptable for the state to lure its citizens into committing illegal acts and then to seek to prosecute them for doing so;

ii. the courts can use their inherent power to stay proceedings in order to ensure that executive agents of the state do not misuse the coercive law enforcement functions of the court;

iii. a useful guide to identifying the limits of acceptable police conduct is to consider whether, in the particular circumstances, the police did no more than present the defendant with an unexceptional opportunity to commit a crime (although each case will depend on its own facts); and

iv. the courts will need to carefully consider whether to exclude the evidence under section 78 PACE 1984, or to stay proceedings.

Where the court is faced with illegal conduct by police or prosecutors, so grave as to threaten to undermine the rule of law, the court is likely to regard itself as bound to stop the case: R v Grant [2005] 2 Cr. App. R. 28.

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Relationship between autrefois pleas and abuse of process

At least since the decision of the House of Lords in DPP v Humphrys [1977] A.C. 1, the courts have recognised a close relationship between the pleas of autrefois acquit and autrefois convict (which operate as a bar to subsequent trial) and stays based on an abuse of process. Where a plea of autrefois acquit or autrefois convict has been entered but rejected by the court, the defendant may still seek to argue that to allow the prosecution to continue in the particular circumstances of the case would amount to an abuse of process. If persuaded by the defence argument, it is open to the court to stay the proceedings, notwithstanding its earlier rejection of the plea in bar: R v Horsham Justices ex parte Reeves 75 Cr. App. R. 236; R v Beedie (1997) 2 Cr. App. R. 167; but contrast R v Willesden Justices ex parte Clemmings 87 Cr. App. R. 280. It would appear, however, that the doctrine of autrefois is now closed and that further expansion in this area will fall to be dealt with under the principle of abuse of process: R v I.K. and Others [2007] EWCA Crim. 971 (see, in particular, paragraph 60).

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Burden of Proof

No matter which ground of abuse is alleged, the burden of establishing that the bringing or continuation of criminal proceedings amounts to an abuse of the court's process is on the defendant; the standard of proof is the balance of probabilities: R v Telford Justices ex parte Badhan [1991] 2 Q.B. 78; R v Great Yarmouth Magistrates ex parte Thomas [1992] Crim. L.R. 116. Again it is important to remember that, as a general principle, it will normally be necessary for the defence to prove not only that an abuse has taken place but that the accused has been prejudiced in the presentation of his or her case as a result, so that a fair trial is no longer possible. As Lord Woolf LCJ said in the Court of Appeal hearing in Attorney General's Reference (No 2 of 2001) (above):

"... if there has been prejudice caused to a defendant which interferes with his right to a fair trial in a way which cannot otherwise be remedied, then of course a stay is an appropriate remedy. But in the absence of prejudice of that sort, there is normally no justification for granting a stay."

In respect to delay, the defence argued: R v S Stephen Paul [2006] EWCA Crim 756 that once the issue of delay had been raised it was for the prosecution to satisfy the court that a fair trial was still possible. However, it was confirmed that the correct approach is for the judge to bear in mind the following;

1. a permanent stay is the exception rather than the rule, even where delay is justifiable;
2. where there is no fault on the part of the prosecution such a stay will be rare;
3. no stay should be granted in the absence of serious prejudice so that no fair trial can be held;
4. when assessing prejudice the judge should bear in mind his powers to regulate the admissibility of evidence; and if
5. having considered these factors, a Judge's assessment is that a fair trial will be possible, a stay should not be granted.

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ECHR Implications

In determining whether a defendant can receive a fair trial, a court is bound to take into account the protections guaranteed under Article 6 of the ECHR.

As to cases where a defendant seeks to argue that his or her ECHR right to a fair trial has been breached by delay, see Attorney General's Reference (No 2 of 2001) (above).

The prosecution might also be confronted with an argument that a criminal prosecution amounts to an abuse of process on the ground that the offence-creating provision in question is incompatible with the ECHR. Whenever an abuse of process argument is brought on this basis, it will be necessary to consider whether: 

  • on the existing principles of statutory construction the provision in question is compatible with the Convention. If so, no difficulty arises. If not,
  • it is possible to read and give effect to the provision in a way which is compatible with Convention rights. If so, no difficulty arises.

Cases where the primary legislation in question is irretrievably incompatible with the Convention are likely to be extremely rare. Even where this situation arises, the incompatibility does not deprive the provision of its force and validity, and therefore, it should not affect the criminal trial.

Where, in these circumstances, the defence argues that a trial should be stayed as an abuse of process because of incompatibility with the ECHR, the notice of the court should be drawn to the following provisions of the Human Rights Act 1998: 

  • Section 4(5) provides a list of courts that may make a "declaration of incompatibility" where it is satisfied that the incompatibility between the legislation and ECHR cannot be resolved. The courts include the High Court, Court of Appeal and House of Lords. The list does not include the Crown Court or magistrates' courts. 
  • Section 3(2)(b) provides that, as far as possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. However, where there is incompatibility between the domestic legislation and the Convention, the validity of the legislation is not affected if primary legislation prevents the removal of the incompatibility. 
  • Section 6(2) provides that a public authority is not acting unlawfully if, as a result of primary legislation, it could not have acted differently (i.e. the CPS cannot be held to be acting unlawfully for prosecuting in accordance with existing legislation).

Relying on these provisions, the prosecution can safely respond that a decision to stay a prosecution on the ground that the Act establishing the offence is allegedly incompatible with the ECHR is not a matter for either the magistrates' courts or the Crown Court to consider. Moreover, it may also be asserted that under the HRA a finding of incompatibility is no bar to trial. The removal of any incompatibility is a matter exclusively for Parliament.

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Procedure

Review Process

When reviewing a file, prosecutors will need to anticipate whether or not there is likely to be an abuse of process. It would, however, be wholly exceptional to refuse to prosecute because of an alleged abuse; you must be satisfied that the abuse argument would inevitably succeed. Usually a court will be able to ensure that there is some other method of remedying any prejudice to a defendant (R v S (2006) 170 J.P. 434). Such methods include: 

  • the power of the courts at common law and under sections 76 and 78 PACE 1984 to regulate the admissibility of evidence; 
  • the trial process itself, which should ensure that all relevant facts arising from issues such as delay are placed before the jury as part of the evidence for their consideration; 
  • the power of the judge to give appropriate directions to the jury before they consider their verdict; and 
  • the power of the judge to mitigate the sentence if the accused has suffered as a result of issues such as delay.

Where potential abuse of process issues arise in any case, prosecutors should adopt a robust approach and examine the issues critically. Defence assertions of prejudice should not be accepted at face value; they must be carefully analysed and challenged where they cannot be sustained in law.

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The need for skeleton arguments criminal courts

Applications for a stay on the grounds of abuse of process can be raised in either the magistrates' courts or the Crown Court. Where the application is before the Crown Court, the procedure set out in the Consolidated Criminal Practice Direction, paragraph IV.36 (see Annex 2) must be followed.

While this Direction is not strictly applicable in the magistrates' courts, prosecutors in the magistrates' courts should always ask the court to order skeleton arguments from both sides (defence first, prosecution response) so that the issues can be identified and the matter properly argued on the basis of agreed facts, principles, and law.

The prosecution response skeleton argument must specify any propositions of law to be advanced (together with the authorities relied on in support), and, where appropriate, include a chronology of events and a list of key people in the case. A sample skeleton argument for the Crown is provided at Annex 3.

An application involving abuse of process based on a prior promise not to prosecute should normally be made at the beginning of the trial (R v Croydon Justices ex parte Dean [1993] 3 All E.R. 129, 135, QBD). In cases involving delay, it is preferable for such an application to be made after the evidence of the complainant(s): R v Smolinski [2004] 2 Cr. App. R. 40.

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Appeals

All prosecutions stayed on the ground of abuse of process should be reported to the CCP or another senior lawyer specifically appointed for this purpose so that a decision can be made whether to challenge the ruling.

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Administrative Court

A decision made by the magistrates' courts may be challenged in the Crown Court under section 108, Magistrates' Courts Act 1980. Such a decision may also be challenged in the Administrative Court by either the prosecution or defence, using the case stated or judicial review procedure.

If a ruling on a stay application is made in the magistrates' courts, the court should give its reasons, however briefly. It is the duty of the prosecuting advocate to take a note of the decision. On an application for judicial review, the Administrative Court will expect to see a note of the lower court's reasons before deciding whether to grant permission for the application to proceed, and, if any oral evidence was given, an agreed note should be prepared, summarising its effect (R (Ebrahim) v Feltham Magistrates' Court; Mouat v DPP (above).

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Appeal from the Crown Court to the Administrative Court

Neither side can appeal a decision made by a Crown Court judge to the Administrative Court, because an abuse of process ruling is a matter relating to trial on indictment and is not, therefore, susceptible of judicial review: section 29(3) Supreme Court [Senior Courts] Act 1981 and R v Manchester Crown Court ex parte DPP (Re Ashton) [1994] 1 A.C. 9, HL.

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Appeal from the Crown Court to the Court of Appeal

The erroneous refusal by the Crown Court to stay proceedings on the grounds of abuse of process can form the basis of an appeal against conviction to the Court of Appeal even though the defendant had, in fact, had a fair trial and there were no grounds for doubting his guilt (R v Bloomfield [1997] 1 Cr. App. R. 135; R v Mullen (1999) 2 Cr. App. R. 143; R v Togher [2001] 3 All E.R. 463).

A stay of proceedings on grounds of abuse of process may also form the subject of an application to the Court of Appeal for a terminating ruling under section 58, Criminal Justice Act 2003. This gives the Court of Appeal the power to confirm, reverse or vary a prior ruling (section 61).

Conversely, the Attorney General may refer to the Court of Appeal Criminal Division (CACD) under the general provisions of section 36 Criminal Justice Act 1972 any case in which an application for a stay on the grounds of abuse has been granted (and thus the accused has been acquitted) on what is thought to be a mistaken interpretation of the law. The remedy is limited to the determination of points of law.

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Other procedural considerations

In dealing with abuse of process arguments, you will need to do the following:

a. Prepare a skeleton argument in accordance with the Consolidated Criminal Practice Direction (at Annex 2). A sample skeleton argument to be used by the Crown is provided at Annex 3. Provide a list of authorities. It is good practice to attach to the skeleton argument relevant case law and documentary evidence. Avoid citing too many cases; courts discourage such an approach, as each case is to be decided on the merits of its own facts.

b. Consider what evidence you may have to adduce, either orally or by way of documents, to establish particular facts. In particular, you may have to call evidence relating to the time of service of a summons from a police officer, or relating to the steps taken to execute warrants. You may have to call a CPS colleague as a witness or have CPS evidence agreed.

c. Consider what prejudice has been suffered by the defendant and whether the defendant has contributed to factors such as delay. For example, many offenders in delayed child abuse cases have explicitly warned their victims "not to tell" (in R v Wilkinson (1996) 1 Cr. App .R. 81, the defendant's appeal was unsuccessful, inter alia, on the ground that the defendant was responsible for the delay because he made threats to the victims).

d. Consider what alternative remedies or solutions may be available to the court to deal with the alleged injustice, for example, (1) grant the accused bail, (2) expedite the trial, (3) impose reporting restrictions, (4) transfer venue, (5) exclude evidence, (6) use the summing-up to offset any prejudice the accused might suffer as a result of loss of evidence, delay and media attention.

e. Bear in mind that the power to stay an indictment is ongoing during a trial and reviewable throughout (R v Birmingham and Others (above)). The power to stay need not be used to stay the whole of an indictment; it can be used in relation to individual counts (R v Munro (1992) 97 Cr. App. R. 183).

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Annexes

Annex 1 Schedule of Example Cases

Note: This is not an exhaustive document. It contains a sample of cases to give you an idea of the arguments that have been used by the courts. Each case will depend upon its own facts, and the appellate courts have discouraged an overly strict application of precedent or the excessive citation of previous authorities.

Nevertheless, these and other reported cases may help prosecutors to make informed decisions in cases where abuse of process is alleged.

A. Fair Trial Impossible Because of Delay

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Murder

Case Name: R v Sawoniuk [2000] 2 Cr App R 220

Summary: The case turned on the eye-witness evidence of two witnesses whose evidence was subject to cross-examination. It was held that a fair trial had not been impossible, despite a delay of 56 years. The trial judge had highlighted the difficulties resulting from the lapse in time and directed the jury in that regard. The European Court of Human Rights subsequently found no violation of Article 6 in relation to this case: Sawoniuk v UK [2001] Crim LR 918.
Delay: 56 years
Argument succeeds: No

Case Name: R v Dunlop [2006] EWCA Crim 1354

Summary: This case concerned an application under Part 10 CJA 2003 for a retrial. The respondent contended that periods of delay made it unfair to retry him. He submitted that the period between acquittal and retrial was unique in character and that it was qualitatively different from either the period between charge and disposal at trial or the period between the offence and the first trial. The Court of Appeal rejected this submission. With regard to the quality of the delay, the Court could see little difference between the delay in charging a sex offender, who may have been lulled into a sense of false security by the absence of any charge over many years, and the delay in retrying a defendant who has been lulled false sense of security by the existence of a rule against double jeopardy. The Court of Appeal rejected the submission that the delay rendered it unfair to retry the respondent.
Delay: 17 years
Argument succeeds: No

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Sexual Offences

Case Name: R v Telford Justices ex parte Badhan (1991) 93 Cr App R 171

Summary: In this rape case, the lapse of time meant that the defendant had suffered prejudice through no fault of his own. Although the prosecutor was not responsible, a fair trial was impossible.
Delay: 15 years
Argument succeeds: Yes

Case Name: R v J.A.K. (1992) Crim LR 30

Summary: The period of delay, together with the absence of evidence capable of corroboration, in a rape case led to an inference that a fair trial was impossible. The fairness at trial would be so seriously eroded that to continue would be oppressive. The test to be applied is not whether the delay is justified but whether a fair trial is possible.
Delay: 20 years
Argument succeeds: Yes

Case Name: R v Newham Justices ex parte C (1993) Crim LR 130

Summary: In this case concerning rape and buggery, the court said that it was a mistake to seek to compare one case with another because the facts in each case were often substantially different. Once the principle was established, the issues were questions entirely of the facts of the individual case. Although the reasoning of the justices in this case was not entirely correct, their conclusion could not be said to be Wednesbury unreasonable. A fair trial could therefore take place in this case.
Delay: 10-12 years
Argument succeeds: No

Case Name: R v R (1994) Crim LR 948

Summary: Offences of rape, buggery and incest, which began in 1973, were reported to the police in 1991. The Lord Chief Justice reviewed the authorities and concluded that it was impossible to say that the Recorder, who had all the facts before him, had exercised his discretion incorrectly.
Delay: 18 years
Argument succeeds: No

Case Name: R v Stevenage Justices ex parte Handscomb (1994) Unreported

Summary: Incidents of indecent assault were alleged to have occurred in 1975 and 1976, but the complaint was not made until 1993. Justices found that there was no abuse of process. The Divisional Court specifically said the issues were trial matters for the judge and jury. However, when the case was tried in the Crown Court, the proceedings were stayed because of the totality of the delay including the time taken in hearing the appeal in the Divisional Court.
Delay: 19 years
Argument succeeds: Yes - Crown Court
Argument fails: Yes - Divisional Court

Case Name: R v Dutton (1994) Crim LR 910

Summary: Offences of indecent assault had taken place over a four year period when the complainant was 10/11 years old. No complaint was made until the complainant was 29 years old. The Court of Appeal said that such cases inevitably involved substantial delay. The Court said that the judge, having decided there was no abuse of process, misdirected himself in failing to point out to the jury what was said by the defence about possible prejudice caused by the delay.
Delay: 20 years
Argument succeeds: Yes

Case Name: R v Wilkinson [1996] 1 Cr App R 81

Summary: The appellant was charged with 12 offences of indecent assault, gross indecency and incest against two daughters and a step-granddaughter. The offences were committed between 15 and 28 years earlier in relation to the two daughters and 6 to 9 years earlier with respect to the step-granddaughter. The trial judge refused to stay proceedings on grounds of abuse of process caused by delay. The defendant appealed against the convictions in relation to his daughters. The Court of Appeal dismissed the appeal. The defendant caused the delay by making threats or promises to the victim and relying on loyalty or shame in the victim to maintain the secrecy.
Delay: 15- 28 years
Argument succeeds: No

Case Name: R v Jenkins [1998] Crim LR 411

Summary: The Court of Appeal held that the prosecution should have been stayed on the ground of delay, and therefore quashed the convictions. The court had regard to: (i) the long period of unexplained delay (over 30 years) before the first of two complainants (sisters) purported to remember the incidents; (ii) evidence of contamination of the second sister; (iii) inconsistencies in their evidence; (iv) their extreme youth at the time of the alleged offences; and, in particular, (v) the fact that it was not a case where the accused had shared a home with the complainants.
Delay: 30 years +
Argument succeeds: Yes

Case Name: R v B [2003] 2 Cr App R 13

Summary: The Court of Appeal quashed a conviction in a case where there had been a delay of approximately 30 years in the making of complaints of various alleged sexual offences. The court emphasised the importance of ensuring that an injustice was not done to the defendant who had been in an impossible position to defend himself by reason of the delay. This meant he had no material to put to the complainant to suggest that she had said something that had happened on one occasion which could be established to be incorrect, nor any material in the form of notes that were given to doctors which showed she had changed her account.
Delay: 30 years
Argument succeeds: Yes

Case Name: R v Smolinski [2004] 2 Cr App R 40

Summary: The Court of Appeal indicated that an application for a stay based on delay should not be made at the outset of the trial, since unless the case is exceptional any such application will fail and will have taken up time unnecessarily. It would be preferable for such an application to be made after the evidence of the complainant(s), particularly if there is a danger of inconsistencies between witnesses, and for the judge then to scrutinise the evidence with particular care and come to a conclusion about whether or not it is safe for the matter to be left to the jury.
Delay: 20 years
Argument succeeds: Yes

Case Name: R v S (2006) 170 JP 434

Summary: The court should bear in mind the following principles: (i) even where delay is unjustifiable, a permanent stay should be the exception rather than the rule; (ii) where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted; (iii) no stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held; and (iv) on the issue of possible serious prejudice, there is a power to regulate the admissibility of evidence, and the trial process itself should ensure that all relevant factual issues arising from the delay will be placed before the jury for their consideration with appropriate directions. If, having considered these factors, a judge concludes that a fair trial will be possible, a stay should not be granted.
Delay: 31 years
Argument succeeds: No

Case Name: Altaf v The Crown Prosecution Service, West Midlands [2007] EWCA Crim 691

Summary: The trial judge refused a stay on the grounds of delay. The Court of Appeal quashed the convictions as an abuse of process. A period of delay meant that a number of documents were no longer available. The loss of material evidence, combined with unsatisfactory evidence as to how the complaints were first made, caused doubt as to the safety of the verdicts. The Court of Appeal described this as a rare case where the prejudice flowing from the loss of evidence was not cured by any directions given by the judge.
Delay: 9 years
Argument succeeds: Yes - Court of Appeal
Argument fails: Yes - Trial

Case Name: R v Joynson [2008] EWCA Crim 3049

The trial judge refused a stay on the grounds that a long delay and the absence of records made a fair trial impossible. The Court of Appeal quashed the convictions as an abuse of process as the effectiveness of cross examination was reduced as relevant documents were no longer available. No general warning could be a substitute for the missing documents and the convictions cannot be regarded as safe.
Delay: 35 years
Argument succeeds: Yes - Court of Appeal
Argument fails: Yes - Trial

Case Name: R v Hereworth [2011] EWCA Crim 74

The trial judge refused a stay on the grounds that the surviving records were fragmentary and other documents which may have been helpful had been lost. The Court of Appeal rejected the appeal and found that the trial had been fair. The surviving documents supported the defence case and the trial judge gave a proper direction to the jury about the significance of missing documents. Any disadvantage to the defendant was mere speculation.
Delay: 25 years
Argument succeeds: No - Court of Appeal
Argument fails: Yes - Trial

Case Name: R v TBF [2011] EWCA Crim 726

The trial judge refused a stay on the grounds of long delay which affected the ability of the victims, witnesses and defendant to recall the alleged events. The Court of Appeal quashed the convictions as an abuse of process. There was no good reason for the long delay in this case. The complainants mother had confronted the appellant 27 years previously but had not reported him to the police. The delay had provided an opportunity for collusion between complainants and other witnesses, a  witness for the defendant had died and much of the other documentary evidence on which the defendant would have relied was no longer available.

CA laid down the following 5 propositions:

i) the court should stay proceedings on some or all counts of the indictment if and only if it is satisfied on the balance of probabilities that by reason of delay a fair trial is not possible on those counts;

ii) usually the proper time for the defence to make such an application and for the judge to rule upon it is at trial, after all the evidence is called;

iii) in assessing what prejudice has been caused to the defendant on any particular count by reason of delay, the court should consider what evidence directly relevant to the defence case has been lost through the passage of time. Vague speculation that the lost documents or deceased witnesses might have assisted the defendant is not helpful. The court should also consider what evidence has survived the passage of time. The court should then examine critically how important the missing evidence is in the context of the case as a whole;

iv) having identified the prejudice caused to the defence by reason of the delay, it is then necessary to consider to what extent the judge can compensate for that prejudice by emphasising guidance given in standard directions or formulating special directions to the jury. Where important independent evidence has been lost over time, it may not be known which party that evidence would have supported. There may be cases in which no direction to the jury can dispel the resultant prejudice which one or other of the parties much suffer, but this depends on the facts of the case;

v) if the complainants delay in coming forward is unjustified, that is relevant to the question whether it is fair to try the defendant so long after the events in issue. In determining whether the complainants delay is unjustified, it must be firmly borne in mind that victims of sexual abuse are often unwilling to reveal or talk about their experiences for some time and for good reason.

Argument succeeds: Yes - Court of Appeal
Argument fails: Yes - Trial

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Assaults

Case Name: R v Bow Street Stipendiary Magistrate ex parte Cherry (1990) 91 Cr App R 283

Summary: This case concerned unlawful wounding. The delay in service of notices and the failure to interview until a year later was a delay which gave rise to prejudice and unfairness.
Delay: 1 year
Argument succeeds: Yes

Case Name: R (Knight) v West Dorset Magistrates' Court (2002) 166 JP 705

Summary: The particular need for expedition in proceedings against juveniles may justify a court in coming to different conclusions in relation to applications for a stay made by co-defendants where there is nothing to distinguish their cases save that one is a juvenile and the other an adult.
Delay: Unknown
Argument succeeds: No

Road Traffic

Case Name: R v West London Stipendiary Magistrate ex parte Anderson (1984) 148 JP 683

Summary: There was a delay between the defendants arrest in October 1979 and his being made aware of the prosecution in December 1982 when arrested on a warrant. A magistrate declined to dismiss the case on an application that the proceedings were an abuse, because the defendant had failed to make inquiries of the police in regard to whether proceedings had been instituted and because there had been no bad faith on the part of the police. The Divisional Court said the magistrate had taken too narrow a view. An abuse of process argument is made out where a substantial delay had been caused by a deliberate act of the prosecution or by inefficiency and where the defendant had not caused or contributed to the delay.
Delay: 3 years
Argument succeeds: Yes

Case Name: R v Canterbury Justices ex parte Barrington (1994) 158 JP 325

Summary: There was a delay in service of an excess alcohol summons. The court offered no criticism of the police for failing to check telephone directories, Community Charge registers or checking when the applicant attended the police station in respect of other matters.
Delay: 3 years
Argument succeeds: No

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Fraud/Dishonesty

Case Name: R v Grays Justice ex parte Graham (1982) 75 Cr App R 229

Summary: In this case it was held not to be an abuse of process where the defendant was re- charged two years after the commission of the alleged offences under the Theft Act 1968 and after the defendant was discharged at committal because the prosecution was not ready for the committal proceedings. The applicant argued that the delay was not his fault and that the continued prosecution was vexatious and an abuse of process of the court. The Divisional Court held that the delay was not vexatious and that there was no mala fides on the part of the prosecution.
Delay: 2 years
Argument succeeds: No

Case Name: R v Derby Crown Court ex parte Brooks (1984) 80 Cr App R 164

Summary: Justices had refused to stay committal proceedings on the ground of abuse of process due to unconscionable delay in respect of 16 charges under the Theft Act 1968. These offences arose out of a series of fraudulent transactions which took place 5 to 6 years earlier. The applicant had been sentenced for making fraudulent VAT returns in relation to the same transactions. The Divisional Court held that the delay had not prejudiced the applicant because he had always admitted his guilt.
Delay: 5-6 years
Argument succeeds: No.

Case Name: R v Buzalek & Schiffer (1991) Crim LR 115

Summary: The case turned largely on the documentation in fraudulent trading offences and whether prejudice would be caused by the delay. The court concluded that there may be prejudice if witnesses were unable to recall events but in this case the documentation would refresh memories so a fair trial was possible.
Delay: 6 years
Argument succeeds: No

Case Name: R v Henworth [2001] 2 Cr App R 4

Summary: It is not necessarily an abuse of process to proceed to a third trial.
Delay: Unknown
Argument succeeds: No

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Public Order

Case Name: Attorney General's Reference No 2 of 2001 [2004] 2 AC 72, HL

Summary: The House of Lords held that a failure by a public authority to procure a hearing within a reasonable time constituted a breach of a defendants rights under Article 6(1) and a remedy should be afforded which was effective, just and proportionate. The appropriate remedy would depend on the nature of the breach and all the circumstances, including the stage of the proceedings at which the breach was established. However, it would not be appropriate to stay or dismiss the proceedings unless there could no longer be a fair trial or it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges required that a charge should not be stayed or dismissed if any lesser remedy would be just and proportionate in all the circumstances. As a general rule, the relevant period would begin at the earliest time at which a person was officially alerted to the likelihood of criminal proceedings against him.
Delay: Unknown
Argument succeeds: Yes

B. Fair Trial Impossible for Reason Other than Delay

Case Name: R v Mid Sussex Justices ex parte Adams ILR 17th February 1992

Issue/Summary: Privileged information supplied by the defence was passed inadvertently to the prosecutor by the Clerk to the Justices. This was held not to be an abuse of process because there were no grounds to suggest there had been any prejudice had been suffered by the defendant.
Argument succeeds: No

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Non-disclosure by the Prosecutor

Case Name: R v Birmingham and Others (1992) Crim LR 117

Issue/Summary: A video recording had not been disclosed to the defence, even after specific requests were made for unused material to be served. By the time of the trial the tape could not be found and there was no prospect of it being found. It was held that the prosecution was under a duty to disclose and that the defence was prejudiced as a result of the nondisclosure A fair trial was therefore impossible.
Argument succeeds: Yes

Case Name: DPP v Altaf Hussain (1994) 158 JP 602

Issue/Summary: The Divisional Court held that there was no abuse of process where the prosecution had failed to disclose documents which the justices had ordered to be disclosed, because there were other methods of achieving the courts primary objective, namely a fair trial of the complaint. In this case, they could grant an adjournment.
Argument succeeds: No

Case Name: DPP v Ara [2002] 1 WLR 815

Issue/Summary: The polices failure to provide a solicitor with a copy of his client's record of a taped interview amounts to an abuse of process.
Argument succeeds: Yes

Case Name: DPP v Meakin [2006] EWHC 1067

Issue/Summary: The DPP appealed against a decision by magistrates to stay proceedings against the respondent upon a charge of drink driving on the ground of abuse of process (the prosecution had failed to disclose the name of an informer that they didnt rely on as a witness). The Queen's Bench Division of the High Court held, allowing the appeal, that a stay should not be imposed unless a defendant showed that he would suffer such prejudice that a fair trial was not possible. In the instant case, at the very most the prosecution had erred in failing to disclose the name of the witness; but that was at least matched by the defence failure to ask for those particulars. The concept of a fair trial involved fairness to the prosecution and to the public, as well as fairness to the defendant. There was a clear public interest in bringing drunk drivers to justice. There would have been no unfairness whatsoever to the defence in allowing the trial to proceed, but there had been a considerable unfairness to the public and to the prosecution in staying the proceedings.
Argument succeeds: No

Case Name: R v Carr [2008] EWCA Crim 1283

Issue/Summary: The prosecution had informed the defence they no longer intended to rely on a particular witness and subsequently changed their mind. The conduct of the prosecution was open to criticism as they had failed to comply with a disclosure notice and only provided documentation on the day of the trial. The court felt that whilst the prosecution's change of position would cause the defendant disappointment it was not unfairness that came near to amounting to an abuse of process.
Argument succeeds: No

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Inability of Defence to Examine Evidence

Case Name: R v Beckford (1994) JPR 305

Issue/Summary: The appellant was convicted of causing death by careless driving whilst under the influence of drink or drugs. He appealed on the basis that he had not had the opportunity to examine his car, which had been destroyed. He had contended that as a result, all the prosecution evidence should be excluded because of unfairness. The court said there was no question of bad faith on the part of the prosecuting authorities. The car had been examined by a prosecution expert. However, the defence wished to have their own expert examine the steering lock to see whether it had become jammed while the car was in motion thereby causing the collision. Each case had to be considered on its own facts and in this case, the absence of the car did not affect the fairness of the trial. The judge had dealt with the evidence at length and with care, and the jury was able to evaluate the evidence, including the defence version of the incident.
Argument succeeds: No

Case Name: R v Huddersfield Magistrates' Court ex parte Unas Vali, Divisional Court, 7th July 1994

Issue/Summary: The prosecution refused to supply the defence with actual copies of all documents requested. Some were copied to the defence without charge, but because of the voluminous nature of the material, the defence was offered the opportunity to examine the material and take copies of them. The Divisional Court upheld the justices decision that the prosecution's failure to provide copies of all documents was not an abuse of process.
Argument succeeds: No

Case Name: R v Felham Magistrates' Court ex parte Ebrahim; Mouat v DPP [2001] 2 Cr App R 23

Issue/Summary: Guidance was given as to the approach that should be followed when an application to stay proceedings is founded on the non-availability of a video recording that would, allegedly, contain relevant material. The first issue is the nature and extent of the duty, if any, of the investigating authority and/or of the prosecutor to obtain and/or retain the material in question. Recourse should be had to the code of practice issued under section 25 of the CPIA 1996 and the Attorney General's Guidelines on Disclosure. If, in the circumstances, there was no duty to obtain and/or retain that material before the defence first sought its retention, then there can be no question of the subsequent trial being unfair on that ground. If there has been a breach of the obligation to obtain or retain the relevant material it will be necessary to decide whether the defence have shown, on a balance of probabilities, that owing to the absence of the relevant material the defendant would suffer serious prejudice to the extent that a fair trial could not take place.
Argument succeeds: Yes - Mouat
Argument succeeds: No - Ebrahim

Case Name: DPP v S [2002] EWHC 2982

Issue/Summary: The police had failed to obtain a video recording from a supermarket. However, it was held that the magistrates had, on the particular facts, erred in staying proceedings on the basis that there could not be a fair trial. There was no suggestion that the recording would have shown anything of the commission of the alleged offences. The trial process was adequate to deal with the matters that were raised, it being commonplace that there are gaps in the prosecution case that can be exploited by the defence. In the absence of bad faith or serious default on the part of the investigative and/or prosecuting authorities, and where the missing recording went only to a side issue, rather than to the heart of the case, there were no such exceptional circumstances as to justify the grant of a stay.
Argument succeeds: No

Case Name: R v Parker [2003] 3 Archbold News 1

Where the issue in a case of arson was whether the fire had been started deliberately or accidentally, the judge had been correct to refuse an application to stay proceedings on the basis of a failure to preserve the bed and bedding. Some flexibility had to be allowed as to the practicalities of retaining a bulky burnt-out item. Whilst the police could be criticised for not having taken more detailed photographs of the item, there had been no bad faith and the failure had to be judged against the likelihood of a challenge as to the cause of the fire, the fact that no request for preservation had been made and the fact that the defence expert said no more than that preservation might have assisted on the issue, but without giving any specifics..
Argument succeeds: No

Case Name: Sofris v S [2004] Crim LR 846 (ECtHR)

Issue/Summary: The destruction of evidence, for which the state authorities were responsible, did not of itself give rise to a violation of the right to a fair trial under Article 6 of the ECHR. It was necessary to establish that the loss of the evidence put the defendant at a disadvantage compared with the prosecution.
Argument succeeds: No

Inability to Call Evidence

Case Name: R v Schlesinger (1995) Crim LR 137

Issue/Summary: The prosecuting authority (Customs and Excise) urged foreign embassies to claim diplomatic immunity thereby depriving defendants of witnesses they wished to call and had been promised would be available. In addition, the failure to disclose what had taken place kept the defence in ignorance of the impropriety, thus preventing it from raising the matter with the judge.
Argument succeeds: Yes

Case Name: R v Haringey Justices ex parte DPP [1996] 2 Cr App R 119

Issue/Summary: The prosecution had exercised its unfettered discretion not to call, as a witness, a police officer who had disciplinary proceedings pending. The justices stayed proceedings on grounds of abuse of process because it would be unfair on the defence, who wished to discredit other prosecution witnesses by cross-examining this police officer on the inconsistencies in his evidence. The Divisional Court held that, in exceptional cases such as the present, the justices can require that the witness is called. The justices should not stay proceedings on the ground of abuse of process, but call the witness themselves, if the prosecution exercise their unfettered discretion not to call the witness.
Argument succeeds: No

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Inability to Question Prosecution Witnesses

Case Name: R v J.A.K.(1992) Crim LR 30

Issue/Summary: Proceedings brought 20 years after the alleged offence of rape was committed were stayed on grounds of abuse of process for two reasons. First, because the delay made a fair trial impossible, and secondly, because the defendant would be unable to explore the reasons for the complainants delay in making the allegations without another complainants allegation against him being adduced in evidence. In this case, the present complainant (his younger sister) was emboldened to make a complaint after hearing of the complaint made by another complainant (his daughter). At an earlier hearing, the counts involving the daughter had been ordered to be tried separately.
Argument succeeds: Yes

R v P [2008] EW Misc 2 (EWCC)

P was subject to confiscation proceedings under Proceeds of Crime Act 2002 after his conviction for conspiracy to supply cannabis. He was subject to a restraint order and an application to vary it to release funds to pay for legal representation was refused. Legal Aid did not provide sufficient funding to pay for necessary representation. The proceedings were unusually complex and justified the employment of junior counsel of substantial experience not only for the purposes of effective representation but also to enable the court to deal with the matter in a reasonable time. The burden of proof lay on the defendant, the amount of the confiscation order sought was in excess of £1million that would usually attract a sentence of imprisonment of 10 years in default. Proceedings were stayed as he could not have a fair trial unless represented by counsel.
Argument succeeds: Yes

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Adverse Media Publicity

Case Name: R v McCann and Others (1991) 92 Crim App R 239

Issue/Summary: The appellants were charged with conspiracy to murder the Secretary of State for Northern Ireland. At the trial they exercised their right to remain silent. During the closing speeches the Home Secretary announced the Governments intention to change the right to silence. This was followed by considerable publicity including television broadcasts from the Secretary of State and a former Master of the Rolls. An application to discharge the jury was refused. The trial judge warned the jury to disregard any broadcasts on the right to silence. The Court of Appeal allowed an appeal against conviction. It concluded that the impact of media coverage on the fairness of the trial could not be overcome by any direction to the jury. The trial judge ought to have discharged the jury and ordered a retrial.
Argument succeeds: Yes

Case Name: R v Bow Street Metropolitan Stipendiary Magistrate ex parte DPP (1992) 95 Cr App R 9

Issue/Summary: Following the acquittal of the "Guildford Four" because the Court of Appeal ruled that the confessions in interviews were unreliable (due to discrepancies in the interviews), the interviewing police officers were charged with perverting the course of justice. At the committal of the police officers, the defence successfully argued that the prosecution should be stayed on grounds of, inter alia, abuse of process; a fair trial was impossible due to a delay of 18 years since the trial of the "Guildford Four" and the publicity surrounding their release three years earlier. The Divisional Court quashed the magistrates decision to stay proceedings and held that the publicity surrounding the release of the "Guildford Four" could not affect a fair trial three years later. The Court also held that the lapse of time would not cause such a prejudice as to deny the defendants a fair trial since the crucial question was whether the interview notes of the "Guildford Four" trial were made contemporaneously or not.
Argument succeeds: No

Case Name: R v Taylor and Taylor (1994) 98 Crim App R 361

Issue/Summary: The Court of Appeal allowed the appeal on two grounds, one of which was the unremitting, extensive, sensational and inaccurate and misleading media coverage of the trial. The Court refused to order a retrial for the same reason.
Argument succeeds: Yes

Case Name: R v Maxwell and Others No 1 (1995) (unreported)

Issue/Summary: In considering the question whether there was a serious risk that prejudicial publicity would result in an unsafe and unsatisfactory conviction, the Court should consider, inter alia, the likely length of time the jury will be exposed to the trial process. In many, if not most, cases the jurors' concentration on the "drama of the trial" will outweigh the effect of external publicity. The application to stay was dismissed.
Argument succeeds: No

Case Name: R v Stone [2001] EWCA Crim 297; [2001] Crim LR 465

Issue/Summary: A witness at trial had retracted his evidence subsequent to the jury returning its verdict and had later informed journalists that the evidence he had given had been false. The trial had generated considerable media interest, particularly in the months following the verdict. The Court of Appeal held that the conviction was unsafe and should be quashed. The question of whether a fair retrial could be carried out in the light of the media interest should be decided on the balance of probabilities. The media interest directly after the trial had been sensationalist and had included inaccuracies. Moreover, its content had exceeded the information which a jury at any retrial might be told. However, owing to the three year interval between the majority of the media coverage and the expected date of the retrial, much of the information would have been forgotten by potential jurors. Even if all the information were not forgotten, it would be easier for a jury member to set aside any information they were told to disregard. Since the impact of the offences had been felt most in the local region, any risk of prejudice would be reduced if the retrial took place away from that local region. It followed that, on the balance of probabilities, a fair retrial could take place.
Argument succeeds: Yes

Case Name: R v Croydon Magistrates' Court ex parte Simmons (unreported), Divisional Court, 26th January 1996

Issue/Summary: The appellant was charged with threatening behaviour resulting from an incident at a football match where he had shouted racial abuse at a celebrity player, Eric Cantona. Pre-trial publicity comprised, inter alia, disclosure of his antecedents during a voluntary interview to a newspaper. The Divisional Court held that justices were trained to disregard previous convictions and therefore upheld the justices' decision not to stay proceedings.
Argument succeeds: No

Case Name: Montgomery v HM Advocate; Coulter v HM Advocate [2003] 1 AC 641 (Privy Council)

Issue/Summary: The Privy Council considered the issue of adverse publicity in the context of the right to a fair trial by an 'independent and impartial tribunal' as guaranteed by Article 6 of the ECHR. It was said that the principal safeguards of the objective impartiality of the jury lie in the trial process itself and the conduct of the trial by the judge. The test was whether the risk of prejudice was so grave that whatever measures were adopted, the trial process could not reasonably be expected to remove it.
Argument succeeds: No

Case Name: R v Hamza (Abu) [2006] EWCA Crim 2918

Issue/Summary: The appellant appealed against convictions for, inter alia, possessing threatening, abusive or insulting sound recordings with intent to stir up racial hatred, and possessing a document or record containing information of a kind likely to be useful to a person committing or preparing to commit an act of terrorism. The Court of Appeal held that it was not likely to constitute an abuse of process to proceed with a prosecution unless (a) there had been an unequivocal representation by those with conduct of the investigation or prosecution of a case that the defendant would not be prosecuted and (b) the defendant had acted on that representation to his detriment. The facts in this case fell a long way short of satisfying those criteria. The fact that adverse publicity could have risked prejudicing a fair trial was no reason for not proceeding if the judge had concluded that it was possible to have a fair trial. In this case, the judge had correctly concluded that the fairness of the trial was put at risk by the events which occurred during the delay. However, he had also correctly assessed that he could discharge the task of neutralising the effects of those matters by appropriate directions, guidance and summing up. The convictions were safe.
Argument succeeds: No

Case Name: R v Dunlop [2006] EWCA Crim 1354; [2007] 1 Cr. App. R. 8

Issue/Summary: This case concerned an application under Part 10 CJA 2003 for a retrial. The respondent contended that there had been so much prejudicial publicity that painted him as the murderer of the victim that it was unlikely that he would receive a fair trial. Moreover, the jury would inevitably be aware that the respondent was being retried after acquittal and some would know that it was to be inferred form this that an appeal court must have been satisfied that there was 'compelling evidence' that he was guilty. The Court of Appeal distinguished R v Maxwell (1995) (unreported) and R v Stone [2001] Crim LR 465 on the basis that the adverse publicity in those cases was far more intense. The Court rejected the submission that publicity about Dunlop would make a far retrial impossible, on the basis that any recollection that members of the jury might have in relation to publicity about Dunlop would pale into significance in comparison to the legitimate prejudicial effect of being told that he had, on a number of occasions, confessed to the murder and that he had pleaded guilty to perjury in relation to his denial of being guilty of that offence.
Argument succeeds: No

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C. Misuse of Process

Case Name: R v Walsall Justices ex parte W (A Minor) (1989) 3 All ER 460.

Issue/Summary: A decision to adjourn a trial in order for a change in the law to take effect was held to amount to an abuse of process.
Argument succeeds: Yes

Case Name: R v Rotherham Justices ex parte Brough [1991] COD 89

Issue/Summary: The CPS had deliberately taken steps to ensure that a defendant who was charged with an offence that would be triable only on indictment in the case of an adult did not appear before the court until he had reached the age where the justices ceased to have a discretion whether or not to deal with him themselves. Although the court viewed the procedure as incorrect, it was held not to amount to an abuse of process because, on the facts, the conduct of the prosecution showed, at most, a lack of judgment rather than misconduct or mala fides. Furthermore, there was no prejudice to the defendant because the delay involved had been minimal, the justices would probably have committed the case to the Crown Court anyway, and in the event of conviction the judge would undoubtedly take account of the defendants age at the time of the offence and the circumstances of his committal.
Argument succeeds: No

Case Name: Hui Chi-Ming v R [1992] 1 AC 34

Issue/Summary: It was held not to be oppressive or an abuse of the process of the court to prosecute a secondary party for murder when the principal had been convicted of manslaughter and when pleas of guilty to manslaughter had been accepted from other secondary parties. It was noted that (a) the acquittal of the principal on the charge of murder appeared perverse; (b) there had been abundant evidence of murder against the appellant; and (c) he had chosen to run a defence which would have resulted in his complete acquittal if it had succeeded, rather than accept an offer that had been made to accept a plea of guilty to manslaughter.
Argument succeeds: No

Case Name: R v Hartnett [2003] Crim LR 719

Issue/Summary: It was not an abuse of process to prosecute a charge of dangerous driving where the defendant had pleaded guilty in the magistrates court to a charge of driving with excess alcohol arising out of the same course of driving and where the prosecution intended to prove that conviction as part of their case on the charge of dangerous driving. If there was any unfairness involved in what had occurred the judge could have excluded the evidence of the conviction under section 78 PACE 1984.
Argument succeeds: No

Case Name: R v Levey [2007] 1 Cr App R 1

Issue/Summary: The Court of Appeal held that a prosecution for murder was not barred by a contrary decision in care proceedings. A declaration as to lawfulness by the civil courts is not, in itself, a bar to criminal proceedings.
Argument succeeds: No

Case Name: CPS v Mattu [2009] EWCA Crim 1483

Issue/Summary: The Court held that it was an abuse of process to prosecute related charges when a basis of plea wholly inconsistent with those charges had already been accepted.
Argument succeeds: Yes

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Substitution of Charge

Case Name: R v Liverpool Stipendiary Magistrate ex parte Ellison (1989) Crim LR 369

Issue/Summary: It was held that there was no 'deprivation' of trial by jury where the charge was not sufficiently serious to warrant one. It might be different, however, if the substituted charge was inappropriate.
Argument succeeds: No

Case Name: R v Sheffield Justices ex parte DPP [1993] Crim LR 136

Issue/Summary: The Divisional Court held that the prosecution was entitled to substitute a charge of common assault for section 47 assault where the defendant had elected trial. The court rejected the defendants allegation that the manipulation of the court system and the delay in substituting the charge was an abuse and had prejudiced him.
Argument succeeds: Unknown
Argument succeeds: Unknown

Case Name: R v Harlow Magistrates' Court ex parte OFarrell [2000] Crim LR 589

Issue/Summary: It was an abuse of process for the prosecution, upon realising after the magistrates had retired to consider sentence, that the charge was punishable only by way of a fine, to invite the magistrates back into court and then invite them to substitute a charge in respect of the same facts which carried the possibility of a custodial sentence.
Argument succeeds: Yes

Case Name: R v Asfaw [2008] UKHL 31

Issue/Summary: The CPS charged one offence of using a false instrument, as Asfaw was attempting to leave the country on a false passport. The HL held that section 31 of the Immigration and Asylum Act 1999 gives asylum seekers a defence in this context. The CPS also charged Asfaw for obtaining services by decision, namely a flight out of the UK to the United States. That offence is not listed in section 31. The HL held that if the prosecution charged the second offence merely to prevent the person from relying on section 31, there would be strong grounds for arguing that it was an abuse of process. This was because the behaviour covered by both counts was essentially the same.
Argument succeeds: Unknown

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Proceedings Begun or Continued in Breach of Promise Not to Prosecute

Case Name: R v Croydon Justices ex parte Dean [1993] 3 All ER 129

Issue/Summary: The defendant had been given the impression by the police, over a five week period, that he was not going to be prosecuted. Subsequently he was charged and committed for trial. It was held that the breach of such a promise, undertaking or representation was capable of being an abuse of process. The court in delivering its judgment commented that ordinarily an application to quash a committal ought to be made to the Crown Court before the start of the trial.
Argument succeeds: Yes

Case Name: R v Robert Thomas (1995) Crim L R 938

Issue/Summary: The CPS had accepted the defendants written offer of plea to an alternative section 20 wounding charge, a few days before the case was listed for pleas. At the Crown Court the defendant pleaded guilty to the section 20 charge on qualified basis. Counsel had been informed of the acceptance of plea, but he took the view that the prosecution should proceed with the section 18 charge. The defence argued that it was an abuse of process and that the indictment containing the section 18 count should be stayed. The judge ruled that as the defendant, relying on the promise made by "officials of the state", had acted to his prejudice by pleading guilty to the section 20 charge, it would be wrong to allow the prosecution to proceed on the section 18 charge.
Argument succeeds: Yes

Case Name: R v Bloomfield (1997) 1 Cr App R 135

Issue/Summary: At a preliminary hearing, without the agreement with CPS, prosecuting counsel intimated that she would be offering no evidence to a charge of possession of a class A drug. The CPS proceeded with the prosecution after the trial judge refused a defence application to stay proceedings on grounds of abuse of process. The Court of Appeal held that the defendant was entitled to assume that counsel at the preliminary hearing had authority to make the intimation. In the exceptional circumstances, therefore, it was therefore an abuse of process to proceed with the prosecution.
Argument succeeds: Yes

Case Name: Hayter v L [1998] 1WLR 654

Issue Summary: In this case a private prosecution was brought by the father of a victim. It was held that there was no abuse of process even though the two defendants agreed to be cautioned and admitted their guilt. They both signed a form indicating that they knew that the caution did not prevent commencement of proceedings by an aggrieved party. The court felt that the decision to bring a private prosection should not be fettered by the court and that the court could exclude any admission under section 78 of PACE or at common law to ensure fairness.
Argument succeeds: No

Case Name: R v R [2000] 4 Archbold News 1

Issue/Summary: The CPS told the appellant's solicitor that the defendants convictions were unsafe. The case was listed on the basis that the Crown would not oppose the appeal. The Court was then advised that this concession was to be withdrawn. This was held not to constitute an abuse of process.
Argument succeeds: No

Case Name: R v Murphy [2003] Crim LR 471

Issue/Summary: There is no rule to the effect that an early decision in a magistrates' court not to proceed on one of several charges cannot, in the absence of fresh evidence, be revisited by counsel prosecuting in the Crown Court. Where the decision to reinstate was taken in a different court at a significantly different stage in the process, and no objection had been taken by the defence at the time, the course taken did not bring the administration of justice into disrepute.
Argument succeeds: Unknown

Case Name: R v Jobe [2004] EWCA Crim 3155

Issue/Summary: The defendant was properly prosecuted for two offences of drug-induced rape 13 months apart notwithstanding that before the second allegation the defendant had been told, following the first complainant's decision not to pursue her complaint, that he would not be prosecuted. There had been a full explanation of why the first complaint had not been proceeded with at the time it was first made, and there was no suggestion of bad faith or excessive delay or substantial prejudice to the defendant.
Argument succeeds: No

Case Name: R v Mulla [2004] 1 Cr App R 6

Issue/Summary: The Court of Appeal held that there had been no abuse of process where the prosecution had indicated to the judge before whom a case of causing death by dangerous driving was listed for trial that they had decided to accept a plea of guilty to careless driving. However, when invited by the judge to reconsider that decision, the prosecution had decided by the same afternoon to pursue the original charge. The appellant had been aware from the outset that the judge was not happy with the original decision, and thereafter, it was only a short time before the change of decision. There had been no prejudice to the appellant.
Argument succeeds: No

Case Name: Jones v Whalley [2006] UKHL 41

Issue/Summary: It was held that it was an abuse of process for a person to be privately prosecuted where the defendant had previously been cautioned for the same offence. The case also confirmed it was appropriate (if there were legal grounds to substantiate it) that the decision to caution to be judicially reviewed. If quashed by the Divisional Court, the court confirmed it is as if the slate were 'wiped clean'. Two of the judges warned that a defendant when cautioned should be warned that a caution may not preclude a private prosecution.
Argument succeeds: Yes

Case Name: R v Horne TLR 27th February 1992

Issue/Summary: Customs and Excise had failed to re-arraign the defendant within the two months time limit set by Section 8 of the Criminal Appeal Act 1968 as amended, following the order for retrial. This was held by the Court of Appeal to be a failure to act with due expedition as required under the Act. The reason the prosecution did not act within the time limit was that the papers had gone astray. The court held that the prosecution could not, therefore, claim to have acted with due expedition. There was a plain and simple dereliction of duty which amounted to an abuse of process.
Argument succeeds: Yes

Case Name: R (H) v Guildford Youth Court [2008] EWHC 506

Issue/Summary: The defendant was bailed hainv been told by the officer in the case the matter would be dealt with by a youth caution. He re-attended at hte police station and was charged. He entered a not guilty plea and an abuse of process arguement was held stating that there had been a clear promise that the matter would be dealt with by way of a final warning. The justices rejected this argument and the defendant subsequently entered a guilty plea on a reckless basis. On appeal the court found that the youth in this case should have been able to rely on the word of the officer and accordingly ordered that the youth court was erroneous in refusing to stay proceedings.
Argument succeeds: Yes

Case Name: R (on the application of Guest) v DPP [2009] EWHC 594 (admin)

Issue/Summary: The court held that where a conditional caution had been administered inappropriately the court had the right to judicially review this decision and that in the circumstances the best way to remedy the situation would be to charge the defendant where appropriate. If the decision had been taken not to charge the offence this decision was also judicially reviewable. Proceedings arising out of such a process would not necessarily be an abuse of process.
Argument succeeds: No

Case Name: R v Gore and Maher [2009] EWCA 1424

Issue/Summary: The Court held that it was not an abuse of process when criminal proceedings followed the erroneous imposition by police officers of a Fixed Penalty Notice. In this case the police had initially dealt with the case as a minor public order offence and issued Fixed Penalty Notices accordingly. The Police Officers later viewed CCTV coverage and obtained a statement from the victim which confirmed that he had suffered a fractured elbow which required two operations. Both defendants were charged with inflicting grievous bodily harm. Their application to stay proceedings was refused. This decision was confirmed at the Divisional Court, which distinguished the case of Jones and Whalley and confirmed the case of Guest.
Argument succeeds: No

Avoiding the Consequences of Statutory Time Limits

Case Name: R v Brentford Justices ex parte Wong (1980) 73 Cr App R 67

Issue/Summary: It is likely to be a misuse of process to lay a so-called 'protective information' or to cause a summons to be issued in order to comply with a statutory time limit for the start of proceedings, if a decision about prosecution has not been reached by that time. In this case, the prosecutor deliberately delayed service of a summons after an information was laid until the decision about prosecution was made.
Argument succeeds: Yes

Case Name: R v Wirral Magistrates' Court ex parte Meikle (1990) CLR 801

Issue/Summary: The Divisional Court held that, in the absence of mala fides, it was not an abuse of process for the prosecution to prefer new charges that would attract new custody time limits. (Under the Prosecution of Offences (Custody Time Limits) Regulations 1987, each offence attracted a separate custody time limit.)
Argument succeeds: No

Case Name: R v Great Yarmouth Magistrates ex parte Thomas and Others (1992) Crim LR 116; R v Norwich Crown Court ex parte Parker and Ward (1992) Crim LR 500

Issue/Summary: These two cases show that the prosecution may leave itself open to an abuse argument where it has brought additional charges on the expiry of custody time limits in order to prevent the release of an accused on bail.
Argument succeeds: Yes - Thomas
Argument succeeds: No - order re. P and W

Case Name: R v Waltham Forest Magistrates' Court ex parte Lee and Lee (1993) 97 Cr App R 287; R v Wolverhampton Justices and Stafford Chief Constable ex parte Uppal (1995) CLR 223

Issue/Summary: Each offence attracts its own custody time limit, but it is open to a defendant to argue before justices that the conduct of the prosecution in withdrawing one charge and preferring another, or adding a charge, may amount to an abuse of process, if this is done simply to ensure that the expiry of a custody time limit is avoided. In both of these cases the court held the prosecution had acted properly. The burden of proving bad faith is upon the defence. However, it is up to the prosecution, if called upon to do so, to give reasons for the withdrawal of one charge and substitution of another.
Argument succeeds: No

Disregard of Extradition Procedures or Abuse of Executive Power

Case Name: R v Horseferry Road Magistrates' Court ex parte Bennett [1993] 3 All ER 138

Issue/Summary: There was a challenge to proceedings where the defendant had been brought to this country from South Africa. It was held that it was an abuse of process for a person to be forcibly brought into the jurisdiction of the court in disregard of extradition procedures.
Argument succeeds: Yes

Case Name: In re Schmidt [1995] 1 AC 339

Issue/Summary: The defendant, a German national was lured to England by a deception. On arrival he was arrested on a warrant under the Extradition Act 1989 and an extradition request was made by the German Government. He was kept in custody pending extradition proceedings and applied for habeas corpus on the grounds that the ruse that led him into England was an abuse of process. It was held that the magistrate hearing proceedings for committal under the Extradition Act 1989 had no power to refuse to commit on the grounds that the proceedings were an abuse of process.
Argument succeeds: No

Case Name: R v Shahzad and Latif (1996) 1 All ER 353

Issue/Summary: The House of Lords ruled that, whilst Customs and Excise had used trickery and deception (but no force) to lure one of the defendants to the United Kingdom, and had themselves participated in the illegal importation of a large quantity of drugs, there had been no abuse of process. Lord Steyn said that when using its discretion to stay proceeding on grounds that there had been a misuse of process, a judge had to perform a balancing exercise when dealing with the broader considerations of the integrity of the criminal justice process. The judge must weigh in the balance the public interest in ensuring that those charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means. Lord Steyn said that a stay was appropriate in R v Horseferry Road Magistrates Court ex parte Bennett (above) because Bennett had been forcibly abducted and brought to this country to face trial in disregard of extradition laws.
Argument succeeds: No

Case Name: R v Staines Magistrates' Court ex parte Westfallen; R v Same ex parte Soper; R v Swindon Magistrates Court ex parte Nangle [1998] 1 WLR 652

Issue/Summary: It was held that there would be grounds for objection to the jurisdiction of the courts of this country if the domestic authorities had knowingly connived at or procured an authorised deportation of the accused from a foreign country for some ulterior or wrongful purpose. However, there were no such grounds where those authorities had not procured, influenced or colluded in either the decision of the authorities in a foreign country to deport the accused to this country or to a third country via this country or in the arrangements for carrying out the decision, and there had been no illegality, abuse of power or violation of international law or the domestic law of the foreign country concerned.
Argument succeeds: No

Case Name: R v Mullen [1999] Cr App R 143

Issue/Summary: The Court of Appeal concluded that (i) the British authorities had initiated and subsequently assisted in and procured the deportation of the appellant by unlawful means from Zimbabwe to England in circumstances where specific extradition facilities existed and, in so acting, had not only encouraged unlawful conduct in Zimbabwe, but had also acted in breach of public international law; (ii) in the particular circumstances, the conduct of the British authorities had been so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to succeed; (iii) accordingly, the proceedings should have been stayed as an abuse of process. The court stressed, however, that nothing in the judgment should be taken to suggest that there may not be cases in which the seriousness of the crime is so great, relative to the nature of a particular abuse of process, that it would be a proper exercise of the judicial discretion to allow the prosecution to succeed.
Argument succeeds: Yes

Case Name: Antoine v Sharma [2006] UKPC 57

Issue/Summary: The Privy Council held that the power to stay criminal proceedings for abuse of process was wide enough to embrace an application challenging a decision to prosecute on the ground that it was arrived at under political pressure or influence or was motivated politically rather than by an objective review of proper prosecutorial considerations.
Argument succeeds: Yes

Panday v Virgil (Senior Superintendent of Police) [2008] UKPC 24

The conviction was quashed on the grounds of apparent bias on the part of the Chief Magistrate (it was alleged that in convicting the defendant, the Chief Magistrate had been influenced by improper Government pressure, which is a fundamental violation of the rule of law). The Judicial Committee of the Privy Council held that the Court of Appeal might order the retrial of a defendant whose conviction was quashed on the grounds of apparent bias if the defendant had been properly charged and brought before the court without any violation of the rule of law, and if a fair retrial before a different judge was possible.
Argument succeeds: Unknown

Oppressive Methods Used to Investigate Crime

Case Name: R v Heston-Francois (1984) 1 QB 278

Issue/Summary: There was an application to stay on the grounds that the actions of the police amounted to an abuse of the process of the court. Officers had searched the defendants home for stolen jewellery and removed files of documents and tapes prepared for his defence to charges of burglary. Some of those documents had been shown to prosecution witnesses. The trial judge refused the application and on appeal against that ruling, it was held that the judge was correct. However reprehensible such conduct was, it fell to be dealt with through the trial itself and was not therefore a misuse of the court's process.
Argument succeeds: No

Case Name: R v Looseley; Attorney General's Reference (No 3 of 2000) [2002] 1 Cr App R 29

Issue/Summary: The House of Lords reviewed the law relating to the topic of entrapment. It was held that (i) it is not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so (this would constitute entrapment); (ii) the courts can use their inherent power to prevent abuse of process to ensure that executive agents of the state do not misuse the coercive law enforcement functions of the court; (iii) as to where the boundary lies in respect of acceptable police behaviour, each case depends on its own facts, but a useful guide to identifying the limits of acceptable police conduct is to consider whether, in the particular circumstances, the police did no more than present the defendant with an unexceptional opportunity to commit a crime; (iv) the courts will need to carefully consider whether to exclude the evidence under section 78 PACE 1984, or to stay proceedings.
Argument succeeds: No

Case Name: R v Grant [2005] 2 Cr App R 28

Issue/Summary: The Court of Appeal considered a case where the police eavesdropped on the communications of a suspect and his solicitor. The acts of the police were clearly unlawful and, according to the Court, were capable of infecting the proceedings as abusive of the Court's process. In general terms, the Court held that unlawful acts amounting to a deliberate violation of a suspects right to legal privilege were such an affront to the integrity of the criminal justice system, and therefore the rule of law, that the prosecution was rendered abusive and ought not to be countenanced by the Court. Where the Court is faced with illegal conduct by police or prosecutors so grave as to threaten to undermine the rule of law itself, the Court is likely to regard itself as bound to stop the case.
Argument succeeds: Yes

Case Name: R v Harmes and Crane [2006] EWCA Crim 928

Issue/Summary: The judge had been correct to refuse a stay, notwithstanding that an undercover police operation had not been properly authorised under RIPA 2000 and the code of practice for the use of human intelligence sources, and that the undercover officers had committed criminal acts.
Argument succeeds: No

Case Name: R v Dawson (2007) 151 SJ 432, CA (21st March 2007)

Issue/Summary: The defendant sought to stay proceedings on the ground of entrapment and the issue was therefore whether he had been led into the commission of offences which he would not otherwise have committed or whether the police operation had created a system to expose criminal activities already afoot. It did not follow from the fact that the judge was shown, during a public interest immunity hearing, material suggesting that the defendant had already been involved in criminal activity that that material had been considered by the judge when deciding whether or not to grant the stay without the defence being given an opportunity to comment on it. Judges who have considered public interest immunity applications for the purposes of abuse of process arguments are not bound to recuse themselves from hearing the abuse argument. Judges do, however, have a discretion to do so if they consider that the interests of justice so require.
Argument succeeds: Unknown

Case Name: Council for the Regulation of Health Care Professionals v General Medical Council [2007] ACD 128(29), QBD

Issue/Summary: Entrapment by non-state agents (e.g. journalists) is not a species of abuse of process. However, proceedings may be stayed if it would be an abuse of the court's process for the state to seek to rely upon the resulting evidence. Reliance upon such evidence would compromise the court's integrity.
Argument succeeds: Unknown

Curtis Warren and others v HM AG of the Bailiwick of Jersey [2011] UKPC 10

The appellants were convicted of conspiracy to import 180kg of cannabis with a street value of over £1million. Their application for a stay of proceedings on the grounds of abuse of process in that prosecution evidence had been obtained as a result of serious prosecutorial misconduct was refused. The police used tracking devices in other jurisdictions knowing that they did not have all of the necessary consents for their use and that the AG, the Chief of Police and authorities of three foreign states had been misled. This was grave prosecutorial misconduct and without the products of that misconduct there would have been insufficient evidence for a trial. This was a finely balanced case but the seriousness of the offence, the need for urgency and the fact that there had never been an attempt to mislead the trial court weighed against a stay of proceedings.  The police and the prosecution always knew that the evidence could be excluded by the court if it was decided that it would adversely affect the fairness of proceedings.
Argument succeeds: Unknown

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D. Abuse and Autrefois Acquit or Autrefois Convict

Case Name: R v Horsham Justices ex parte Reeves (1982) 75 Cr App R 236

Summary: A defendant was re-charged following a finding of no case to answer during committal proceedings on an earlier occasion. The Divisional Court held that as the new charges were substantially similar to the old ones, and as the defendant had been discharged after consideration of evidence, the court had a discretionary power to ensure that the use of repeated committal proceedings is not allowed to become vexatious or an abuse of the process of the court.
Argument succeeds: Yes

Case Name: R v Willesden Justices ex parte Clemmings (1988) 87 Cr App R 280

Summary: The first prosecution against the defendant was dismissed for want of prosecution because advance information had not been served on the defence after two adjournments. The defendant was re-charged with the same offence. The justices refused an application on behalf of the applicant that the case be dismissed on the grounds of autrefois acquit; alternatively, that the proceedings were in the abuse of process of the court. The Divisional Court held that the magistrates' court had an inherent power to dismiss a case for want of prosecution. Further, the plea of autrefois acquit was not available because there had been no trial on the merits. The Divisional Court held that it had not been suggested by the applicant that the prosecution had behaved in a vexatious manner or in any way which was, or could become, prejudicial to the applicant. The power to stop a prosecution would only arise if there had been an abuse of the process of the court in that the prosecution had manipulated or misused the process of the court to obtain an advantage, or where on the balance of probabilities the defendant had been or would be prejudiced. Accordingly, the application was refused.
Argument succeeds: No

Case Name: R v Old Street Magistrates' Court ex parte Davies (1995) CLR 629

Summary: The Crown sought to proceed against the defendant on two counts of unlawful wounding contrary to section 20. Prior to this he had been acquitted on similar counts but contrary to section 18. The facts relied on were identical. The defence contended that the fresh counts were matters for which he could have been convicted at the earlier trial; that even if committed a plea of autrefois acquit may succeed; and that in any event the proceedings were vexatious, oppressive and an abuse. This is despite the fact that when arraigned on the first counts he pleaded guilty but added the words, 'but guilty to unlawful wounding only'. Such pleas were not acceptable to the Crown and the judge. Prosecuting counsel made it clear that there could be no question of leaving an alternative verdict to the jury. Accordingly, the judge in summing-up only addressed the intent issue on the section 18 counts. The defence case was that it was incumbent on the Crown to add section 20 counts or for the judge to leave it to the jury to decide as alternatives. It was conceded that the prosecution had not acted in bad faith. The court ruled that there had not been any prejudice because the defendant had accepted his guilt in respect of section 20 offences and expected to be sentenced for such offences. Therefore it could not be said that he would be any worse off. The application was refused.
Argument succeeds: No

Case Name: R v Beedie [1997] 2 Cr App R 167

Summary: This case concerned the prosecution of the landlord of a woman who died of carbon monoxide poisoning caused by the use of a defective gas fire. He was prosecuted under the Health and Safety at Work Act 1974 by the Health and Safety Executive, and was fined. He was subsequently prosecuted by the CPS for manslaughter on substantially the same facts. The Court of Appeal said that the principle of autrefois was confined to the situation where the second indictment charges the same offence as the first, and therefore did not operate to prevent the defendant's prosecution for manslaughter. Judicial discretion should, however, be exercised to order a stay on the indictment in appropriate circumstances. Such a stay should have been ordered in this case. Although the trial judge had correctly analysed the case as falling outside the autrefois principle, he had failed properly to consider the discretion which he had to stay proceedings where the second offence arises out of substantially the same facts as the first. That discretion should be exercised in favour of the accused unless the prosecution discharges the onus of showing that there are special circumstances for not doing so. In this case, there were no such circumstances so the indictment should have been stayed. The defendant's appeal therefore succeeded.
Argument succeeds: Yes

Case Name: R v FG [2001] 2 Cr App R 31

Summary: The defendant appealed against a ruling which permitted the prosecution to add an additional count to the indictment against him in order to allege assault occasioning actual bodily harm. The defendant had originally faced an indictment which included an allegation of common assault (founded upon the same facts). The trial judge ruled that in light of dicta in the case of R v Brookes [1995] Crim LR 630, the defendant could not avail himself of the defence of autrefois acquit. The Court of Appeal allowed the appeal. The court in R v Brookes should have considered section 27 of the Magistrates Courts Act, and had it done so, the decision would have been different. Accordingly, R v Brookes was wrongly decided and therefore overruled.
Argument succeeds: Yes

Case Name: R v Cheong (Michael Andrew) [2006] EWCA Crim 524

Summary: The appellant appealed against his conviction for manslaughter. The relevant incident occurred in Guyana in 1982, and in proceedings in Guyana he pleaded guilty to unlawful possession of a firearm, but was not prosecuted for any other offence. In 1984 the defendant moved to the UK, and in 2003 his wife informed the police about the 21 year old incident and the defendant was prosecuted in England for murder. The defendant contended that the judge should have stayed the proceedings as an abuse of process, because the choice of an English court amounted to a deliberate and improper manipulation of competing jurisdictions. The defendant's appeal was dismissed. The Court of Appeal held that the crucial question was whether the acts of a foreign prosecuting authority exercising powers in respect of which an English prosecuting authority had concurrent power to prosecute for homicide required an English court to stay a prosecution brought in England. The statutory power given in section 9 of the Offences Against the Person Act 1861 to prosecute British subjects for homicide committed overseas could only be fettered where the defendant could not have a fair trial. In this case, there had been no impropriety in the manner in which the investigation and prosecution by the English authorities had been conducted. The decision to prosecute under section 9 could not amount to an infringement of his human rights or of the rule of law.
Argument succeeds: No

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Annex 2 - Consolidated Criminal Practice Direction (28 March 2006)

IV.36  Abuse of Process Stay Applications

IV.36.1  In all cases where a defendant in the Crown Court proposes to make an application to stay an indictment on the grounds of abuse of process, written notice of such application must be given to the prosecuting authority and to any co-defendant not later than 14 days before the date fixed or warned for trial ("the relevant date"). Such notice must:

(a) give the name of the case and the indictment number;
(b) state the fixed date or the warned date as appropriate;
(c) specify the nature of the application;
(d) set out in numbered sub-paragraphs the grounds upon which the application is to be made;
(e) be copied to the chief listing officer at the court centre where the case is due to be heard.

IV.36.2  Any co-defendant who wishes to make a like application must give a like notice not later than seven days before the relevant date, setting out any additional grounds relied upon.

IV.36.3  In relation to such applications, the following automatic directions shall apply:

(a) the advocate for the applicant(s) must lodge with the court and serve on all other parties a skeleton argument in support of the application at least five clear working days before the relevant date. If reference is to be made to any document not in the existing trial documents, a paginated and indexed bundle of such documents is to be provided with the skeleton argument;
(b) the advocate for the prosecution must lodge with the court and serve on all other parties a responsive skeleton argument at least two clear working days before the relevant date, together with a supplementary bundle if appropriate.

IV.36.4  All skeleton arguments must specify any propositions of law to be advanced (together with the authorities relied upon in support, with page references to passages relied upon) and, where appropriate, include a chronology of events and a list of dramatis personae. In all instances where reference is made to a document, the reference in the trial documents or supplementary bundle is to be given.

IV.36.5  The above time limits are minimum time limits. In appropriate cases the court will order longer lead times. To this end in all cases where defence advocates are, at the time of the plea and directions hearing, considering the possibility of an abuse of process application, this must be raised with the judge dealing with the matter, who will order a different timetable if appropriate, and may wish, in any event, to give additional directions about the conduct of the application.

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Annex 3 - Prosecution Skeleton Argument

THE QUEEN

v

JOHN STANLEY BURNLEY

BARCHESTER MAGISTRATES' COURT

ABUSE OF PROCESS

SKELETON ARGUMENT FOR THE PROSECUTION 

The Issue

1. The issue for determination by the court is whether it would be an abuse of the court's process to allow the prosecution of JOHN STANLEY BURNLEY to continue.

2. It is alleged that on 25th May 2004 in Millhay Avenue, Barchester, John Stanley Burnley (then aged 52 years) sexually assaulted AB, a child then aged 14 by touching her on her outer clothing in the area of her breasts.

3. On 25th August 2005 the Defendant was charged with one offence contrary to section 3 of the Sexual Offences Act 2003. He appeared before Barchester Magistrates' Court the next day and was granted bail while the prosecution prepared committal papers.

4. No committal hearing having taken place, the prosecution was discontinued by the Crown on 16th December 2005.

5. The case was subsequently reinstituted on 12th October 2006 and an information for a summons was laid before Barchester Magistrates' Court.

6. The Defendant now contends that by reason of the delay between the date of the alleged offence and the likely date of any trial it would be an abuse of the process of the court to allow the prosecution to continue; and he asks the court to stay the prosecution without consideration of the evidence to prevent such alleged abuse.

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Authorities Cited

R v Horseferry Road Magistrates' Court ex parte Bennett (1994) 1 AC 42.
R v Derby Crown court ex parte Brooks (1984) 80 Cr app R 164.
DPP v Meakin [2006] EWHC 1067.
Attorney General's Reference (No 1 of 1990) 95 Cr App R 296.
Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72.
R v Dunlop [2006] EWCA Crim 1354; [2007] 1 Cr App R 8.
Altaf v CPS West Midlands [2007] EWCA Crim 691.
R (Hereford District Council) v Wiles [2005] EWHC 306 Admin.
R v Telford Justices ex parte Badhan [1991] 2 QB 78.
R v Crown Court at Norwich ex parte Belsham (1992) 94 Cr App R 382.
R v DPP ex parte Kebeline and others (1999) 3 WLR 972.

Chronology Of Events

25.5.04 Date of alleged offence.

27.5.05 First complainant made to police following disclosure to school teacher; formal investigation begun.

25.8.05 Defendant charged with offence of sexual assault.

16.8.05 Defendant appears in court. Magistrates decline jurisdiction and adjourn case to 26.11.05 for committal proceedings to take place.

23.8.05 CPS requests committal papers from Police.

8.10.05 CPS sends reminder to Police about the progress of the case.

18.11.05 Police inform CPS that there are difficulties in obtaining statements from all witnesses, and that committal will not be ready on 26.11.05.

19.11.05 CPS writes to court and Defence requesting an adjournment.

26.11.05 Case adjourned at the prosecution request for committal on 17.12.05 (if not transferred previously).

16.12.05 Case papers have not been received; CPS sends notice of discontinuance to court and defence.

17.3.06 Letter of complaint received by Police from victims father. Matter re-investigated as a result.

14.9.06 New file submitted to CPS for charging decision.

12.10.06 The Chief Crown Prosecutor of CPS Barchestershire decides to reinstate proceedings in accordance with section 12 of the Code for Crown Prosecutors.

20.2.07 Police advise that they obtained a summons on 19th November 2006 but were unable to serve it on the Defendant until 18th February 2007 because the Defendant had been out of the country for 3 months.

3.4.07 Defendant appears in Barchester Magistrates Court. Committal papers are ready but the case is adjourned at the request of the Defence so that an application for a stay on the grounds of an abuse of process through delay may be made. This hearing is to be held on 24th May 2007.

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Prosecution Submissions On The Law Applicable To The Application

1. In R v Horseferry Road Magistrates' Court ex parte Bennett (1994) 1 AC 42 the House of Lords confirmed that magistrates have a power to stay proceedings without hearing the evidence where it is impossible in the circumstances of the case to give the defendant a fair trial because either:

(a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or
(b) on the balance of probability the defendant has been or will be, prejudiced in the preparation or conduct of his defence on the part of the prosecution which is unjustifiable.

2. The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness to both the defendant and the prosecution: R v Derby Crown court ex parte Brooks (1984) 80 Cr app R 164, 168-169; DPP v Meakin [2006] EWHC 1067.

3. The discretion to stay criminal proceedings on the basis of abuse of process should be exercised only in exceptional circumstances where it is impossible by other means to prevent an unfair trial: Attorney General's Reference (No 1 of 1990) 95 Cr App R 296; Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72, HL.

4. Delay of itself does not create any impediment to a fair trial: R v Dunlop [2006] EWCA Crim 1354, [2007] 1 Cr App R 8; Altaf v CPS West Midlands [2007] EWCA Crim 691.

5. Criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in article 6(1) of the European Convention on Human Rights only if (a) a fair hearing is no longer possible or (b) it is for any compelling reason unfair to try the defendant: Attorney General's Reference (No 2 of 2001) per Lord Bingham.

6. In order to stay criminal proceedings on the grounds of delay, magistrates must find that owing to the delay a defendant had suffered serious prejudice to the extent that no fair trial could be held: R (Hereford District Council) v Wiles [2005] EWHC 306 Admin; Altaf v CPS West Midlands.

7. The burden of establishing that the grounds for a stay exist is on the defendant/applicant, on the balance of probabilities: R v Telford Justices ex parte Badhan [1991] 2 QB 78.

8. The defendant's evidential burden includes the burden of establishing on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: Attorney General's Reference (No 1 of 1990).

9. A stay on the basis of an abuse of process must never be used simply as a form of disciplinary disapproval of the CPS: R v Crown Court at Norwich ex parte Belsham (1992) 94 Cr App R 382, QBD.

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The Submissions of the Prosections

Manipulation or Misuse of Process

10. The prosecution submit that nothing that is alluded to in the skeleton argument of the defendant nor contained within the prosecution case is evidence that the Crown has manipulated or misused the process of the court so as to undermine the moral integrity of the process: R v Horseferry Road Magistrates Court ex parte Bennett (1994) 1 AC 42.

11. Further, the decision to prosecute is not amenable to review in the absence of dishonesty or bad faith on the part of the Crown: R v DPP ex parte Kebeline and others (1999) 3 WLR 972.

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Length of Delay Making Fair Trial Impossible

12. The chronology of events set out herein demonstrates that the defendant's case is ready to be committed for trial within twenty three months of the first complaint to the police. Three months of that delay were attributable to the absence overseas of the defendant. In cases involving sexual offences periods of delay amounting to many years have not necessitated a stay of proceedings in the absence of demonstrable unfairness.

13. The case was initially discontinued because the police were unable to serve the necessary statements of evidence on the CPS in time for the committal hearing.

14. Following representations from the alleged victim's family to the police, the allegation was fully reinvestigated, and a full file of evidence was forwarded to the CPS decision.

15. The decision to reinstate the prosecution was taken by CPS within one calendar month of the receipt of that file.

16. Information for the issue of a summons was laid without delay and a summons was obtained within a short time of the decision to reinstate the prosecution.

17. The reason why that summons was not served forthwith was because the defendant was (for legitimate purposes) beyond the jurisdiction for three months.

18. The prosecution submits that in all the circumstances, there has been no unreasonable delay nor any lack of diligence on the part of the prosecution in bringing this matter to the stage of committal for trial. Trials at Barchester Crown Court are routinely listed within four months of committal and priority is given to cases involving child witnesses, as here.

19. Further, the prosecution submits that as the defendant was arrested and interviewed within thirteen months of the alleged incident he has been aware from an early stage of the nature of the allegations against him and in a position to prepare his defence. The prosecution witnessesmade statements during the police investigation which began about a year after the events they describe and those statements can be used to refresh the witnesses' memories before trial if necessary.

20. All documentary and scientific exhibits have been preserved and the prosecution does not know of any actual or potential witness who has died or left the jurisdiction since the date of the alleged offence (in the absence of any indication from the defence of the list of witnesses on whom they intend to rely).

Conclusion

21. In summary, therefore, the prosecution submits that the defendant can receive a fair trial in accordance with the evidence.

22. The defendant has failed to discharge his burden of establishing that the period between the date of the alleged offence and the date when his trial is likely has resulted in such serious prejudice to him in the preparation or conduct of his case that a fair trial is impossible.

23. In conclusion, the prosecution submits that the application to stay these committal proceedings cannot be sustained in law or on the facts, and should therefore be dismissed.

J Blackstone

Senior Crown Prosecutor

CPS Barsetshire

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