Abuse of Process
- General Principles
- Discretion to stay proceedings
- Examples of Reasons a Defendant Cannot Receive a Fair Trial
- Examples of where it would be unfair to try the Defendant
- Abuse of Executive Power
- Relationship between autrefois pleas and abuse of process
- ECHR Implications
- Procedure and Review Process
- Role of the Prosecutor
- Annex 1 – Prosecution Skeleton Argument
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 (Environment Agency v Stanford  C.O.D. 373, DC)
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.
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)  Q.B. 630, CA; Attorney General's Reference (No 2 of 2001)  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.
Courts should not use their inherent power to stay proceedings merely to discipline the prosecution or because the court has formed the view that the prosecution was unwise. Case law makes it 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 CPS - R v Crown Court at Norwich ex parte Belsham (1992) 94 Cr. App. R. 382, QBD.
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  2 Q.B. 78; R v Great Yarmouth Magistrates ex parte Thomas  Crim. L.R. 116.
As a general principle, if the argument refers to the first limb of abuse, 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.
In respect of delay (see below), the Court of Appeal have held 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 - R v S Stephen Paul  EWCA Crim 756.
In Crawley  EWCA Crim 1028, the Court of Appeal clearly set out the scope of the two potential limbs that a stay for abuse of process can be brought under:
- Where the court concludes that the accused can no longer receive a fair hearing - This focuses on the trial process itself;
- Where it would be unfair to try the accused or, put another way, where a stay is necessary to protect the integrity of the criminal justice system – This is where the Court considers that the accused should not be standing trial at all, irrespective of the potential fairness of the trial itself.
It was emphasised that there is a strong public interest in the prosecution of crime and therefore ordering a stay of proceedings is a remedy of last resort.
It was observed that: “cases in which it may be unfair to try the accused (the second category of case) will include, but are not confined to, those cases where there has been bad faith, unlawfulness or executive misconduct. In such a case, the court is concerned not to create the perception that it is condoning malpractice by law enforcement agencies or to convey the impression that it will adopt the approach that the end justifies the means: the touchstone is the integrity of the criminal justice system”.
On an application for a stay on the ground of delay, a court should bear in mind the following principles:
- Even where delay is unjustifiable, a permanent stay should be the exception rather than the rule;
- 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;
- No stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held; and
- On the issue of possible serious prejudice, there is a power to regulate the admissibility of evidence. The trial process itself should ensure that all relevant factual issues arising from the delay will be placed before the jury for their consideration in accordance with appropriate directions.
If, having considered all these factors, a judge’s assessment is that a fair trial will be possible, a stay should not be granted: R. v. S. (S.P.)  2 Cr.App.R. 23, CA, restating the principles set out in Att.-Gen.’s Reference (No. 1 of 1990)  Q.B. 630, 95 Cr.App.R. 296, CA.
Article 6 of the ECHR entitles a person charged with a criminal offence to a ‘fair and public hearing within a reasonable time by an independent and impartial tribunal’.
The right to a determination within a reasonable time is a separate guarantee and not to be seen as part of the overriding right to a fair trial - Porter v. Magill; Weeks v. Magill  2 A.C. 357, HL.
Therefore, it does not follow that the appropriate remedy for a breach of the right to a trial within a reasonable time is necessarily for the proceedings to be stayed. Such a breach should result in a stay of the proceedings only if a fair trial is no longer possible, and also cases where the delay was of such an order, or where the prosecutor’s breach was such, as to make it unfair that the proceedings should continue. Such cases will be exceptional and a stay will never be an appropriate remedy if any lesser remedy will adequately vindicate the defendant’s Convention right.
An appropriate remedy might include a public acknowledgement of the breach or action to expedite the hearing to the greatest extent practicable.
The need for the accused to demonstrate that the delay has caused prejudice was emphasised in Brants v DPP (2011) 175 JP 246.
The leading case is R (Ebrahim) v Feltham Magistrates' Court  1 All ER 831. The starting point must be whether there was a duty on the investigator to obtain and/or retain the material in question. That question will be answered primarily through the provisions of the Code of Practice issued under Part II of the CPIA 1996.
If there was no duty to obtain or retain the evidence in question, there can be no grounds to stay the proceedings for failure to do so. If there was a breach of duty, there generally has to be either an element of bad faith, or at the very least some serious fault, on the part of the police or the prosecution authorities. Moreover, it has to be clear that the accused could not be fairly tried.
In many 'missing evidence' cases, the defence will be able to make use of the absence of that evidence, arguing that its absence should help to create a reasonable doubt in the minds of the jury or magistrates as to the guilt of the accused
The principles relevant to cases involving lost evidence were summarised in DPP v Fell  EWHC 562 (Admin), emphasising that a stay is to be granted only in exceptional cases.
Excessive and adverse media reporting may make a fair trial impossible and thus lead the court to stay proceedings.
In the Privy Council ruling of Montgomery v. H.M. Advocate; Coulter v. H.M. Advocate  1 A.C. 641, the court held 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. If the test is satisfied, there is no question of a balancing exercise.
This judgment was considered in R. v. Abu Hamza  1 Cr.App.R. 27, in which the Court of Appeal held that the fact that adverse publicity may have risked prejudicing a fair trial is no reason for not proceeding with the trial, if the judge concludes that, with his assistance, it will be possible to have a fair trial. In considering that question, it was right for the judge to have regard to his own experience and that of his fellow judges.
Adverse publicity cases have significantly increased with the escalation of online news and opinion about cases to be tried although generally, this can be overcome. Where adverse publicity is raised by the defence, the prosecution should work with the Judge and the defence to produce instructions to the jury, as well as reporting restrictions, where necessary.
Failure on the part of the prosecution to comply with its disclosure obligations may amount to an abuse of process.
Some of the relevant factors to be taken into account when deciding whether non-disclosure amounts to abuse of process were considered in Salt  1 WLR 4905. They included:
- The gravity of the charges;
- The denial of justice to the complainants;
- The necessity for proper attention to be paid to disclosure, the nature and materiality of the failures;
- The conduct of the defence;
- The waste of court resources;
- The effect on the jury;
- The availability of sanctions other than halting proceedings.
However, in DPP v Petrie  EWHC 48 (Admin), it was noted that in some cases:
“A wholesale failure on the part of the prosecution to comply with its disclosure obligations may require the prosecution to offer no evidence, in accordance with the professional code for prosecutors and the guidance set out in the CPS/ACPO Disclosure Manual”.
“The possibility of such an outcome serves to illuminate that only rarely will recourse to an abuse of process argument be necessary or appropriate”.
However, see the section on Prosecution Failures, later in this guidance.
In, R v Croydon Justices ex parte Dean  Q.B. 769, it was held that “the prosecution of a person who has received a promise, undertaking or representation from the police that he will not be prosecuted is capable of being an abuse of process”. It is not necessary for the accused to show that there was bad faith on the part of the police.
In R v Bloomfield  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.
The Court of Appeal stated that allowing the prosecution to go ahead amounted to an abuse of process since, whether or not there was prejudice to the accused, it would bring the administration of justice into disrepute if the Crown were permitted to revoke its original decision, particularly as it had been made in the presence of the judge.
On 28 November 2006, the Lord Chief Justice (LCJ) delivered a judgment for the Court of Appeal in R v Abu Hamza  1 Cr. App. R. 27. This is the leading case 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."
The Court of Appeal's decision in Abu Hamza demonstrated that it is not likely to constitute an abuse of process to proceed with a prosecution unless there has been:
- An unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted; and
- 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 - Killick  1 Cr App R 121.
Further guidance on reinstituting proceedings can be found in the Legal Guidance chapter: ‘Reconsidering a Prosecution Decision’
The administration of a caution may lead to a subsequent prosecution being held to be an abuse of process.
In DPP v Alexander  1 WLR 653, the Divisional Court considered the effect of a caution in the context of the doctrine of autrefois:
“A caution is not a conviction for the purposes of those defences, notwithstanding that a caution will only be administered if the accused person admits his guilt. The principles of autrefois convict and autrefois acquit are applicable only where there has been a finding by a court of guilt or innocence. They have no application to an extra-judicial procedure, such as the administration of a simple caution”
However, the Court went on to say that, where criminal conduct has been the subject of an agreed caution, in the absence of good reason for it to be the subject of a subsequent prosecution, such a prosecution will generally constitute an abuse of the process of the court.
Examples of cases where a prosecution might be justified, despite the earlier administration of caution, include instances where information or evidence is obtained subsequent to the caution.
In R (Lowden) v Chief Constable of Northumbria Police  EWHC 3536 (Admin), it was re-iterated that the existence of a simple caution administered by the police or the CPS is not in itself a bar to a private prosecution being brought, but it may be an abuse of process for a private prosecution to be brought if an assurance was given in the course of administering the caution that there would be no prosecution.
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.
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.
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 R v Gore and Maher  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 case, two individuals had each received a fixed penalty notice for public disorder. The following day, the police reviewed the CCTV evidence of the incident and decided that the fixed penalty notices were inappropriate, arrested the two accused and charged them with inflicting grievous bodily harm. Applications to stay proceedings on the basis this was an abuse of process were refused.
In R (Gavigan) v Enfield Magistrates' Court (2013) 177 JP 609, the accused received fixed penalty notices but, rather than paying the fixed penalty, they indicated that they wished the matter to be dealt with by a court. The decision was then taken to prosecute them for the offence (rather than dealing with the matter as a contested fixed penalty notice). This had the consequence that, if convicted, the accused were liable to a custodial sentence. However, it was held that there is no principle or policy that a person who has rejected the opportunity to pay a fixed penalty should not thereafter be prosecuted for any offence arising out of the same set of facts for those in respect of which the notice was issued.
Unfairness may arise where prosecutors deliberately manipulate court procedures. In R v Rotherham Justices ex parte Brough  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 become an adult.
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.
Paragraph 6.4 of the Code for Crown Prosecutors makes it clear that the charge should not be changed simply because of the decision made as to trial venue. In Canterbury and St Augustine Justices, ex parte Klisiak  QB 398, it was held that the court should only interfere with the prosecution's decision as to what offences to proceed upon only “in the most obvious circumstances which disclose blatant injustice”.
It is only appropriate to interfere where the court concludes that the prosecution were acting in bad faith, in the sense of deliberately manipulating the system to deprive an accused of his rights.
In R v Harlow Magistrates' Court ex parte O'Farrell  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  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.
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. In R (Wardle) v Leeds Crown Court  1 AC 754, for example, a murder charge was replaced with a manslaughter charge when the custody time-limit was about to expire. It was held that the bringing of a new charge would be an abuse of process if the bringing of that charge cannot be justified on the facts of the case by the prosecutor and the court is satisfied that it has been brought solely with a view to obtaining the substitution of a fresh custody time-limit
A similar view was taken in cases where the prosecution 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).
The Courts have recognised that the decision as to whether or not to prosecute involves many interlinking factors and considerations. Therefore, even if it can be shown that part or parts of relevant internal guidance or policy issued by the DPP/CPS have not been followed, it does not automatically mean that there was an abuse of process. It remains open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance. Furthermore, a prosecution that did not constitute an abuse at the date of conviction could not then become one on the basis of new or amended guidance or policy issued subsequently: R. v. A. (R.J.)  2 Cr.App.R. 8, CA.
Even where there has been a breach of a prosecuting authority’s clear and settled policy, the court will only intervene where to allow the proceedings to continue would bring the administration of justice into disrepute: Jones v. DPP  R.T.R. 3, DC, Moss & Son Ltd v. CPS, 177 J.P. 221, DC and R. (Barons Pub Co. Ltd) v. Staines Magistrates’ Court  Crim.L.R. 758, DC.
Failures on the part of the prosecution to serve evidence on time or make proper disclosure might be so serious that, even though a fair trial could take place once they had been rectified, to allow the proceedings to continue would offend the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute.
However, R. v. S. (D.) and S. (T.)  2 Cr.App.R. 27, CA concluded that, in the light of the public interest in ensuring that those charged with crime should be tried, the rights of complainants, the fact that the material not disclosed was only relevant to credibility, and the failure by the defence to bring the prosecution failure to the attention of the court, the proceedings should have been allowed to continue.
Such cases will be determined by their own facts. The Courts must ensure that those charged with criminal offences do not simply procrastinate and seek to undermine the prosecution by creating hurdles to overcome all in the hope that, at some stage, a particular hurdle will cause it to fail: R. v. R. (Practice Note)  1 Cr.App.R. 20, CA.
These applications are rare and 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 Horseferry Road Magistrates' Court, ex parte Bennett  1 AC 42, the accused had been brought back forcibly to the UK, in disregard of extradition procedures that were available. This was held to amount to an abuse of process, even though a fair trial was possible, as the accused should not have been before the court in the first place.
These principles were applied in R v Mullen  2 Cr. App. R. 143, where the security services and police had procured M's unlawful deportation from Zimbabwe. However, the Court of Appeal emphasise 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 Ahmed  EWCA Crim 184, the accused had allegedly been subject to torture outside the UK. Hughes LJ said that the jurisdiction to stay for abuse of process may be exercised “where, by reason of gross executive misconduct manipulating the process of the court, the defendant has been deprived of the protection of the rule of law and it would as a result be unfair to put him on trial at all. The jurisdiction does not exist to discipline the police or other executive arms of the State (although of course it will incidentally do so), but rather to protect the integrity of the processes of justice".
The Court of Appeal upheld the refusal of a stay on the basis that the judge had been right to hold that what is required is a connection between the alleged wrongdoing and the trial. No evidence which was the product of torture or other ill-treatment was adduced at the trial, and the investigation did not amount, directly or indirectly, to employing the product of torture to make a case against the accused.
In R v Looseley; Attorney General's Reference (No 3 of 2000)  1 Cr. App. R. 29, the House of Lords held that although entrapment is not a substantive defence in English law, where an accused can show entrapment, the court may stay the proceedings as an abuse of the court's process or it may exclude evidence pursuant to Section 78 PACE 1984.
Of these two remedies, the grant of stay (rather than the exclusion of evidence at the trial) should normally be regarded as the appropriate response, since a prosecution founded on entrapment would be an abuse of the court's process.
Police conduct which brings about state-created crime is unacceptable and improper, and to prosecute in such circumstances would be an affront to the public conscience. However, if the accused already had the intent to commit a crime of the same or a similar kind, and the police did no more than give him the opportunity to fulfil his existing intent, that is unobjectionable.
The factors to be considered where entrapment is alleged were set out Moore  EWCA Crim 85:
- Reasonable suspicion of criminal activity as a legitimate trigger for the police operation (a control mechanism for testing the police's good faith);
- Authorisation and supervision of the operation as a legitimate control mechanism (to ensure proper control of the operation);
- Necessity and proportionality of the means employed to police particular types of offence;
- The concepts of 'unexceptional opportunity' and causation; and
- Authentication of the evidence (i.e. of the conversations and contacts).
Another example is Palmer  EWCA Crim 1681, where the police set up a covert operation in which local criminals could incriminate themselves by selling stolen property to officers who posed as the operators of a dishonest pawnshop business. Arrests were made only once a large number of offenders had incriminated themselves over a period of several months. The Court of Appeal rejected the defence argument on entrapment, holding that there had been 'no affront to justice'
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
In Grant  QB 60, for example, the police unlawfully recorded privileged conversations between the suspect and his legal adviser. No useful evidence was gathered in this way, and so there was nothing to exclude under Section 78 PACE 1984. The Court of Appeal held that such unlawful acts, amounting as they did to a deliberate violation of a suspect's right to legal professional privilege, were 'so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution was thereby rendered abusive and ought not to be countenanced by the court'.
However, in Warren v A-G for Jersey  1 AC 22, the Privy Council said that the decision in Grant was wrong. This was because it was “difficult to avoid the conclusion that in Grant the proceedings were stayed in order to express the court's disapproval of the police misconduct and to discipline the police, which is an impermissible use of the power to stay proceedings”.
Warren involved illegal cross-border audio surveillance; the misconduct was very serious (it involved misleading the Jersey Attorney-General and the Chief of Police, and the authorities of three foreign States) and, without the product of the unlawfulness, there would have been no trial. However, there were also factors which, taken cumulatively, weighed heavily against a stay, including the fact that the offence was very serious and there was real urgency in the case and it was in these circumstances that the police cut corners and acted unlawfully.
The approach to be taken in such cases was summarised by the Court of Appeal in Norman  EWCA Crim 1564:
- It must be determined whether and in what respects the prosecutorial authorities have been guilty of misconduct.
- It must then be determined whether such misconduct justifies staying the proceedings as an abuse. This second stage requires an evaluation which weighs in the balance the public interest in ensuring that those charged with crimes should be tried against the competing public interest in maintaining confidence in the criminal justice system.
How the discretion will be exercised will depend upon the particular circumstances of each case, including:
- Factors as the seriousness of the violation of the accused's rights;
- Whether the police have acted in bad faith or maliciously;
- Whether the misconduct was committed in circumstances of urgency, emergency or necessity;
- The availability of a sanction against the person(s) responsible for the misconduct; and
- The seriousness of the offence with which the accused is charged.
The basic purpose of the pleas of autrefois convict and autrefois acquit is to protect a defendant against repeated prosecutions for the same offence.
A defendant may not be punished twice for an offence arising out of the same or substantially the same set of facts and that to do so would offend the established principle that there should not be sequential trials for offences on an ascending scale of gravity Connelly v DPP  A.C 1254.
Generally, he/she cannot be tried therefore for a crime in respect of which he has previously been acquitted or convicted or in respect of which he could on some previous indictment have been lawfully convicted. However, for the ordering of a re-trial for a number of limited serious offences, where new and compelling evidence comes to light, under Part 10 Criminal Justice Act 2003, please see ‘Retrial of Serious Offences’ elsewhere in legal guidance.
For the rule to apply, the offence charged in the second indictment must have been committed at the time of the first charge, e.g. a conviction or acquittal for assault will not bar a charge of murder if the assaulted person later dies. In all cases, the earlier adjudication must have been upon guilt or innocence resulting from valid process (and by a court of competent jurisdiction).
Since the decision of the House of Lords in DPP v Humphrys  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.
In Beedie  QB 356, the accused was charged with offences under health and safety legislation and, following his conviction, he was charged with manslaughter arising out of the same facts. The Court of Appeal ruled that it was an abuse of process to have sequential trials for offences on an ascending scale of gravity.
In J (JF)  QB 561, it was held that in any case where the narrow application of the autrefois principle would result in unfairness or injustice to an accused to the extent of amounting to oppression, “the remedy lies in the power of the court to stay the proceedings”.
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.
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 not, it is possible to read and give effect to the provision in a way which is compatible with Convention rights.
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.
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 solely because of an alleged abuse. In order to do so, 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.
When an application for a stay should be heard and ruled upon is a matter for the trial judge. However, ordinarily this ought to be at the outset of the case, and before the evidence is heard, unless there is a specific reason to defer it because the issues can better be determined at a later stage: R. v. F. (S.)  2 Cr.App.R. 28, CA,
Criminal Procedure Rule 3.28 Application to stay case for abuse of process and Criminal Practice Directions 2015 Division 1 section 3C as amended October 2020
- The accused must give written notice of the application to the prosecutor (and to any co-accused) and to the court as soon as practicable after becoming aware of the grounds for applying. This must be before the defendant pleads guilty or the jury retires to consider verdicts at a trial.
- The application must explain the grounds on which it is made; include or identify all supporting material; specify 'relevant events, dates and propositions of law'; and identify any witness the accused wants to call to give evidence in person
- A party who wishes to make representations in opposition to the application must serve written representations on the court and the other parties not more than 10 business days after service of the application.
- The advocate appearing for the applicant must serve a skeleton argument on the court and on the other parties at least five clear working days before the application is due to be heard, and the prosecution advocate must serve a responsive skeleton argument at least two clear working days before the hearing.
- The skeleton arguments must set out any propositions of law to be advanced, together with any authorities (identifying specific passages) that are relied on.
- No specific procedure is laid down for raising abuse of process in Magistrates' court, but it is essential that the court hears from both the prosecution and the defence.
- In DPP v Gowing (2014) 178 JP 181, it was emphasised that it is important that magistrates who are considering staying proceedings recognise “the exceptional nature of the jurisdiction to stay proceedings”. Where there are failures on the part of prosecutors, the power to stay proceedings' should not be used to punish prosecutors where a fair trial remains possible.
- 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.
All applications to stay prosecutions 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 application.
The following steps should then be taken:
- Prepare a skeleton argument in accordance with the Consolidated Criminal Practice Direction. A sample skeleton argument to be used by the Crown is provided at Annex 1. 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.
- 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.
- 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 on the ground that the defendant was responsible for the delay because he made threats to the victims).
- 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.
- 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).
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. 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.
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)  1 A.C. 9, HL.
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  1 Cr. App. R. 135; R v Mullen (1999) 2 Cr. App. R. 143; R v Togher  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).
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.
IN THE CROWN COURT AT ANYTOWN
B E T W E E N
PROSECUTION SKELETON ARGUMENT IN RESPONSE TO APPLICATION TO STAY PROCEEDINGS AS AN ABUSE OF PROCESS
- In a skeleton argument dated 16th May 2018 the defendant, David Defendant applies to stay the indictment against him containing 3 counts of murder.
- The grounds upon which a stay is sought are:
- Adverse publicity
- This skeleton argument should be read in conjunction with the Prosecution Case Summary and the chronology prepared by the Prosecution, which were served at an earlier stage of proceedings. They can be found on the Digital Case System (DCS) at ...
- It is the defendant who must prove that to allow the prosecution to proceed would amount to an abuse of process.
- A great deal of material has been served in relation to this part of the argument. It is, of course accepted that there has been a large amount of publicity and exposure on social media of the circumstances surrounding the events of the alleged offences. However, the submissions made on behalf of the defendant to suggest that he cannot receive a fair trial are to ignore the realities of jury trial in any high profile case. The jury will swear an oath to return a true verdict according to the evidence and will be repeatedly directed and warned, in a trial that occurs in 2018 in the strongest of terms, that they may not, on pain of imprisonment, conduct their own enquiries into the matter.
- If the defence position on this is right, it would have been impossible fairly to try individuals connected to any high profile institution where media reporting has been hostile. Were this to be so, it would have been impossible, for example, fairly to try those accused of involvement in the LIBOR rigging scandal, following a decade of media coverage of banks and bankers that has been almost universally negative. Similarly, arguments in relation to adverse publicity were rejected in relation to those or those associated with News International in the wake of the ‘phone hacking’ scandal. The media attention upon Rebekah Brooks and Andrew Coulson in particular was unremitting. This continued right up until the weeks before the trial was due to start. The court ruled that they could receive a fair trial
- Furthermore, defendants such as Abu Hamza, Rosemary West and many others have all been deemed to be able to have a fair trial despite their being labelled in the press with headline grabbing and inflammatory nicknames.
- A large amount of the material referred to in the skeleton argument is historical and with respect, unlikely to be recalled by most potential jurors. In relation to the material it is submitted that a robust direction and a carefully constructed jury questionnaire will deal with any concerns over adverse publicity.
- The features set out at paragraphs 6 & 7 of the defence skeleton argument are all capable of being dealt with by the trial process, with a robust judicial direction. It is important to recognise that not everyone will equate ‘justice’ with a conviction and to do so is strictly inapposite: justice is nothing more or less than the conclusion reached by a fair and impartial tribunal, having considered all the relevant evidence and had it tested before it. The determination of criminal guilt or innocence can only be arrived at by a jury at a fairly conducted trial, having had tested before it all, and only, the evidence relevant to that matter.
- It is suggested that the case in relation to David Defendant is so exceptional that it falls out with the scenarios contemplated by the Court in R v Abu Hamza  1 Cr App R 27. That is manifestly wrong. It is accepted that the time frame in which there has been a large volume of publicity is significantly longer but the level of inflammatory and vehement hyperbole that has been used against some defendants in criminal trials is at least as bad if not worse than it has been in this case. The jury will be told to put anything they have read out of their minds and the importance of considering only the evidence they hear in court. There is no reason to suspect they will not abide by this and none to conclude that such an approach is not possible.
- It is important, we submit, to distinguish between general publicity surrounding the allegations and publicity which is specifically adverse to Mr Defendant. It does not follow that simply because there has been a certain amount of adverse publicity surrounding the events (or even a great deal of publicity) that it is therefore impossible for the defendant to have a fair trial.
- A robust direction and a carefully drafted jury questionnaire are both capable of dealing with any concerns that the defence may have in relation to adverse publicity.
Delay and consequent prejudice
- There undoubtedly has been delay in this case .The only significance of this is the extent to which prejudice arising from the delay is such as to prevent David Defendant from receiving a fair trial. The defence submit that there are potential witnesses who have since died, for example Benjamin Witness and Brian Sawit. The trial process is perfectly capable of resolving such issues, for example CJA 2003 s 116 Hearsay Provisions.
- The prosecution submits that most of material in the case has been preserved. Whilst some documents may have been mislaid that is very much the exception rather than the rule.
- In the years since 2000, the criminal courts have developed directions to juries to address and mitigate any prejudice arising from delay generally, decay in memory and unavailability of evidence. Any concerns arising from the potential influence through information outside the evidence, promulgated through the media and internet can also be addressed with a robust direction and explored in cross- examination. The trial process is adequately equipped to deal with any unfairness arising from the passage of time, through a combination of rulings on admissibility, directions as to weight and warnings as to the dangers caused by absence of witnesses or deterioration in recollection.