Abuse of Process

Abuse of process refers to an unjustified or unreasonable use of legal proceedings to further a caution of action. It can be considered in a case where something so unfair or wrong has occurred that a court should not allow a prosecution to proceed.

Any abuse argument is to be decided on the civil standard, namely on the balance of probabilities, if the case continues, would this amount to an abuse of process? The burden rests on the defendant to raise. Whilst evidence should be presented to the court, in considering whether there is an abuse, this is an exercise of judicial discretion rather than a fact-finding process. The court must be persuaded that a case cannot proceed in the circumstances.

Can I have a fair trial? What are the options available to the court?

The overriding objective of the court, in accordance with the Criminal Procedure Rules, is that a case is dealt with justly, the prosecution and defence are treated fairly and that a case is dealt with efficiently.

The Supreme Court in R v Maxwell [2010] UKSC 48 confirmed from previous court decisions that the court may stay proceedings in two categories of case, setting out a two-limb test:

1. It would be impossible to give the accused a fair trial; or
2. Where it would offend the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case.

A stay of proceedings means that the case should be stopped either temporarily whilst the abuse is rectified, or the case is permanently halted.

A stay in proceedings should be the exception rather than the rule, therefore a case being stopped entirely is quite rare. The prejudice suffered by a defendant needs to be to the extent that it would be impossible that a fair trial could be held.

Assessing whether there is an abuse of process

Examples of an abuse of process may include:

• Failure to preserve evidence (including evidence that becomes lost).
• Vexatious prosecution. The Code for Crown Prosecutors provides at 3.5 “prosecutors should not start or continue a prosecution where their view is that it is highly likely that a court will rule that a prosecution is an abuse of its process, and stay the proceedings”.
• Proceedings in breach of a promise not to prosecute.
• Manipulation of procedures – this would cover situations where a selection of charges may be brought to circumvent statutory time limits on bringing proceedings. The defendant would need to demonstrate that the prosecutor acted in bad faith.
• Delay. The starting position is that it should be exceedingly rare for a case to be stayed because of delays in proceedings. However, there are decided cases that support delay being an abuse of process. For example, the Court of Appeal has held that two years of prosecution inactivity amounted to an abuse of process (R (Flaherty) v City of Westminster Magistrates’ Court [2008] EWHC 2589).

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