Jury trial procedure. Abuse of process in the Crown Court Flashcards
Abuse of Process: the Power to Stay Proceedings
Where proceedings would amount to an abuse of process, the court may order that those proceedings be stayed. The usual effect of a stay is that the case against the accused is stopped permanently. Given the nature of the grounds upon which a case may properly be regarded as an abuse of process, it would only be in exceptional cases that there would be any basis for lifting a stay that has been imposed.
An example of such a case, however, is Gadd where Globe J granted a voluntary bill of indictment to allow the accused to be prosecuted for offences which had been stayed by a magistrates’ court in 1998 (the stay being subsequently upheld by the Divisional Court). His lordship decided that, in the circumstances prevailing at the time of the application for a voluntary bill (including, in particular, the fact that there were other allegations to be tried), the interests of justice no longer required that the proceedings be stayed. A voluntary bill was therefore granted. An application for leave to appeal against conviction was subsequently dismissed by the Court of Appeal
Meaning of ‘Abuse of Process’
two categories of case in which the court has the power to stay proceedings for abuse of process:
It is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will offend the court’s sense of justice and propriety or will undermine public confidence in the criminal justice system and bring it into disrepute.
summarised the scope of abuse of process thus:
[T]here are two categories of case in which the court has the power to stay proceedings for abuse of process. These are, first, where the court concludes that the accused can no longer receive a fair hearing; and, second, where it would otherwise be unfair to try the accused or, put another way, where a stay is necessary to protect the integrity of the criminal justice system. The first limb focuses on the trial process and where the court concludes that the accused would not receive a fair hearing it will stay the proceedings; no balancing exercise is required. The second limb concerns the integrity of the criminal justice system and applies where the Court considers that the accused should not be standing trial at all, irrespective of the potential fairness of the trial itself.
… [T]here is a strong public interest in the prosecution of crime and in ensuring that those charged with serious criminal offences are tried. Ordering a stay of proceedings, which in criminal law is effectively a permanent remedy, is thus a remedy of last resort.
His lordship 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’.
if the courts have a power to interfere with the prosecution in such cases:
… it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law … I have no doubt that the judiciary should accept this responsibility in the field of criminal law.
a judge does not have ‘any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene.’ One consequence of the fact that the test for abuse of process is much higher than the judge simply taking the view that the case should not have been brought is that it is not an abuse of process to prosecute someone where the evidence against that person is weak. It follows that a judge has no power to prevent the prosecution from presenting their evidence merely on the basis that the judge considers a conviction unlikely although the judge may, if he or she sees fit, stop the case at the close of the prosecution evidence.
There are thus two main categories of abuse of process:
(a) cases where the court concludes that the accused cannot receive a fair trial;
(b) cases where the court concludes that it would be unfair for the accused to be tried.
The first focuses on the trial process; the second is applicable where the accused should not be standing trial at all (irrespective of the fairness of the actual trial).
it is ‘important to bear in mind that the two limbs to the exercise of this jurisdiction to stay are legally distinct and have to be considered separately: considerations that may be relevant to the first limb may not be relevant to the second limb and vice versa. Moreover, the second limb requires a balance of the competing interests, whereas the first limb does not.’
The Court of Appeal accepted the argument that failures on the part of the prosecution are not of themselves ordinarily relevant to the first limb of abuse of process. The key issue is whether the consequences of those failures are such as to deprive the defendant of a fair trial. Thus, ‘for the purposes of the limb one argument one has to assess the prejudicial effect of that conduct on the fairness of the trial’.
it is not necessary for an accused who raises category 2 abuse to prove misconduct going beyond that which establishes the category 1 abuse. In those exceptional cases where abuse of process is raised, it will often be abuse in one category only; where both categories are raised, there may be a distinction between the matters relied on in each category. However, as a matter of principle, there is ‘no reason why the same misconduct cannot provide the basis for a finding of both categories of abuse’. It follows that, ‘depending on the nature and degree of the abusive conduct, the same acts and/or omissions may both render a fair trial impossible (thus, category 1) and make it an affront to the conscience of the court to prosecute at all (and thus, category 2)’.
