Summary trial procedure. Abuse of process in the magistrates court.

Question 1

Discretion Not to Proceed on Account of Delay
Effect of Delay

Answer 1

Even where proceedings were commenced within time, a magistrates’ court has a discretion to refuse to try a case, and so to acquit the accused without trial, if there has been delay amounting to an abuse of the process of the court.

Where the delay is deliberate, it is likely to amount to an abuse of process, as in Brentford Justices, ex parte Wong, where the prosecutor deliberately delayed in effecting service of the summons in order to gain more time in which to decide whether or not to continue the case against the accused.

Where deliberate delay in bringing the case to court cannot be shown, the defence may nonetheless apply for the magistrates to exercise their discretion not to proceed if

(i) there has been inordinate or unconscionable delay due to the prosecution’s inefficiency, and

(ii) prejudice to the defence from the delay is either proved or to be inferred.

If, however, the delay was in part attributable to the accused’s own conduct, an application to stay is unlikely to succeed.