Abuse of process

 

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."

Top of page

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.

Top of page