Abuse of Process

• Introduction
• The role of the prosecutor
• Jurisdiction of the magistrates' and Crown courts
• Examples of when it may be said a fair trial is impossible
• Examples of when it may be said to be unfair to try the defendant
• Relationship between autrefois pleas and abuse of process

Introduction

The question whether or not to prosecute is for the prosecutor, not the court: Environment Agency v Stanford [1998] 6 WLUK 534, per Lord Bingham LCJ. However, the courts have an overriding duty to promote justice and prevent injustice. From this duty there arises an inherent, exceptional power to 'stay' an indictment (or stop a prosecution in the magistrates' court), 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 court may do so if either of the following apply, and the court must consider each as a separate question, see Connelly v DPP [1964] AC 1254 HL, and DPP v Humphrys [1977] AC 1 HL:

• Is it impossible for the defendant to have a fair trial? - The first ground for abuse of process, “right to a fair trial”.
• Is a stay of proceedings necessary to protect the integrity of the criminal justice system? -The second ground, “integrity of the justice system”.

To note:

• 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] QB 630 CA; Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72 HL.
• “The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances.”: Attorney General’s Reference (No 2 of 2001).
• “It is clear from the authorities and beyond argument that there 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”: Crawley and others [2014] EWCA Crim 1028.
• 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. The exceptional nature of the remedy of a stay of proceedings means that, absent bad faith, the power “should not be used to punish prosecutors where a fair trial remains possible”: DPP v Gowing [2013] EWHC 4614 (Admin).

The role of the prosecutor

Review

Where an application to stay proceedings as an abuse of process has been made, or otherwise can reasonably be anticipated, a prosecutor must first review or re-review the case.

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.”

The court in Guest v DPP [2009] EWHC 594 (Admin) [58] put it as follows:

“A decision to stay proceedings is a rare outcome. In a case in which, in accordance with the Code for Crown Prosecutors, the evidential and public interest tests are otherwise met, it will thus be in only the most exceptional case, where the Prosecutor can say with a high degree of certainty that a court will rule that a prosecution is proved to be an abuse of its process, that a decision not to prosecute is likely to be valid.”

Accordingly, prosecutors should not bring proceedings where it is highly likely, or it can be said with a high degree of certainty, that the court will find that (1) the defendant cannot have a fair trial or (2) that a stay of proceedings is necessary to protect the integrity of the Criminal Justice System (CJS).

Both the test for abuse of process, and the test for not prosecuting where it may be argued, represent high thresholds to meet. Moreover, there are other means by which a fair trial can be secured or the integrity of the CJS preserved and upheld.

At the outset of the case therefore, or at a later time when the issues in the case are clarified, the prosecutor should be able to identify any likely ground of abuse which may be argued and how it may be dealt with. A prosecutor should:

• be clear as to whether the abuse of process would fall under ground (1), or (2), as referred to above
• if engaging the right to a fair trial, set out the possible countermeasures to secure this right - it may be that there are no such measures, and the focus should be on challenging the suggestion that this test for abuse is made out, or that the defence submissions are more appropriately deployed as mitigation
• if engaging the integrity of the CJS, set out precisely the nature of this threat and why it means a prosecution would highly likely be an abuse of process

This should form the basis of the review, whether deciding to prosecute or not prosecute. In the former situation, it will inform the prosecutor’s case strategy and any prosecution skeleton argument, if abuse of process is to be argued. If the latter, exceptional, situation applies, it will articulate the rationale for not prosecuting.

Countermeasures

When reviewing the case, the prosecutor should have regard to the authorities relating to the category of abuse alleged (see below). They should also consider countermeasures to ensure the right to a fair trial or to preserve and uphold the integrity of the CJS, which may include but are not limited to:

• making representations about listing, either to expedite a trial or to adjourn it, identifying an alternative venue or considering special measures that are available for the defendant
• making admissions, considering whether to continue to rely on a piece of evidence or whether it would be proper to change the way in which the case is being put to avoid any justified concern or disadvantage raised by the defendant
• considering appropriate reporting restrictions
• identifying directions that the jury may be given, throughout the case as well as in summing up

Burden and standard of proof

A line of authorities, including Telford JJ, ex parte Badhan (1991) 2 QB 78 and Crown Court at Norwich, ex parte Belsham (1992) 94 Cr App R 382, DC, establish that the burden is on an accused to show, on a balance of probabilities, that they are entitled to a stay of proceedings on grounds of abuse of process. In Hamilton v Post Office Ltd [2021] EWCA Crim 577, the Court of Appeal acknowledged the settled principles applying to abuse of process applications at paragraphs 64 onwards and reiterated the burden and standard of proof. Prosecutors may therefore frame their review and submissions in terms of this burden and standard of proof.

When dealing with delay, in the case of Stephen Paul S [2006] EWCA Crim 756, the court said that it is potentially misleading to use the language of burden and standard of proof. This is because the decision on a stay of proceedings is an exercise of judicial discretion rather than an evidence-based fact-finding process. Prosecutors may, where delay is argued, frame their review and submissions in terms of the exercise of discretion. It is clear nonetheless that the ground of abuse must be substantiated by the evidence, and in circumstances where it remains an exceptional remedy.

Disclosure

Disclosure may be made of material meeting the test in the Criminal Procedure and Investigations Act 1996, because the material might enable an accused to make an application to stay the proceedings as an abuse of process. In addition, a prosecutor should consider whether justice and fairness require any immediate disclosure in the particular circumstances of the case, prior to the statutory duty of disclosure arising.

This common law disclosure obligation includes material which might enable an accused to make an early application to stay the proceedings as an abuse of process. Disclosure prior to the statutory duty arising will not exceed the disclosure which would be required under the CPIA.

Procedure

Prosecutors also have a responsibility to ensure that proper procedure is followed in relation to abuse of process applications. An application for a stay of proceedings should be determined before any evidence is called and is distinct from the test at the close of the prosecution case: R v F [2011] EWCA Crim 1844. The procedure in the Crown Court is set out in 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, must be followed.

In the magistrates’ court the same principles must apply in the interests of fairness, justice and case management: namely, that any application should be made as soon as the defendant becomes aware of the grounds for doing so, be in writing and served on the prosecutor, setting out clearly the basis on which it is made and all submissions and evidence in support, and permitting sufficient time for the prosecution to respond. If necessary, prosecutors should seek directions from the court, pursuant to Criminal Procedure Rule 3.5, to ensure this.

Jurisdiction of the Magistrates' and Crown Courts

Magistrates' courts and the Crown Court both have jurisdiction to hear arguments covering the two categories of abuse of process, save for one exception. In Mansfield v DPP [2021] EWHC 2938 (Admin) the court considered those cases which only the High Court would be competent to hear. The court held that a line of authority led to the conclusion that this was a “very narrow” subset within the second ground of abuse, integrity of the justice system. It might perhaps only comprise executive misconduct in relation to extradition.

Prosecutors should be prepared, in rare cases, to raise whether the magistrates’ court or Crown Court is competent to investigate and determine circumstances of novel, complex and/or grave executive misconduct.

Examples of when it may be said that a fair trial is impossible

Delay

In R v F [2011] EWCA Crim 1844, the court held that when abuse of process submissions on the grounds of delay are advanced, provided the principles articulated in Galbraith [1981] 1 WLR 1039 and Attorney General's Reference (No 1 of 1990) [1992] QB 630 CA are clearly understood, it will no longer be necessary or appropriate for reference to be made to any Court of Appeal decisions except Stephen Paul S [2006] EWCA Crim 756 or R v F itself. These four authorities, the court held, contain all the necessary discussion about the applicable principles and each case will be determined on its facts.

In Stephen Paul S, the court held:

• 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
• when assessing possible serious prejudice, the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all relevant factual issues arising from delay will be placed before the jury for their consideration in accordance with appropriate direction from the judge
• if, having considered all these factors, a judge's assessment is that a fair trial will be possible, a stay should not be granted

Failing to obtain, losing or destroying evidence

In R (Ebrahim) v Feltham Magistrates’ Court [2001] EWHC Admin 130, the court suggested that an inquiry into abuse of process might apply the following principles:

1. In the circumstances of the particular case, what was the nature and extent of the investigating authorities' and the prosecutors' duty, if any, to obtain and/or retain the videotape evidence in question? Recourse should be had in this context to the contents of the CPIA Code of Practice and the Attorney General's Guidelines on Disclosure.
2. If in all the circumstances there was no duty to obtain and/or retain the evidence before the defence first sought its retention, then there can be no question of the subsequent trial being unfair on this ground.

3. If such evidence is not obtained and/or retained in breach of the obligations set out in the Code and/or the Guidelines, then the following principles should be applied:

   • The ultimate objective of the discretionary power to stay proceedings as an abuse of process is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution, because the fairness of a trial is not all one sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted.
   • The trial process itself is equipped to deal with the bulk of the complaints on which applications for a stay are founded.

   The circumstances in which any court will be able to conclude, with sufficient reasons, that a trial of a defendant will inevitably be unfair are likely to be few and far between. The power of a court to regulate the admissibility of evidence by the use of its powers under Section 78 of the Police and Criminal Evidence Act 1984 is one example of the inherent strength of the trial process itself to prevent unfairness. The court's attention can be drawn to any breaches by the police of the codes of practice under PACE, and the defence can ask the court to exclude evidence where such breaches have occurred.

   It is commonplace in criminal trials for a defendant to rely on “holes” in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination. If, in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify a safe conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or magistrates not to convict because evidence which might otherwise have been available was not before the court through no fault of their own. Often the absence of a video or fingerprints or DNA material is likely to hamper the prosecution as much as the defence.

4. If the behaviour of the prosecution has been so very bad that it is not fair that the defendant should be tried, then the proceedings should be stayed on that ground. There would need to be either an element of bad faith or at the very least some serious fault on the part of the police or prosecution authorities for this ground of challenge to succeed.

Adverse publicity

The Privy Council, in Montgomery v HM Advocate; Coulter v HM Advocate [2003] 1 AC 641, identified that prior authority suggested a stay of proceedings would only be appropriate when “the risk of prejudice from adverse publicity is so grave that no direction by a trial judge, however careful, could reasonably be expected to remove it.”

In R v Abu Hamza [2006] EWCA Crim 2918, the Court of Appeal considered pre-trial reporting which amounted to a prolonged barrage of adverse publicity, indeed a campaign against the defendant, almost entirely hostile to him and some of it couched in particularly crude terms. There was plainly a risk to a fair trial, but the judge had been entitled to have regard to his own experience and that of his fellow judges. In doing so, he had properly concluded that he was satisfied that with proper direction a jury would be able to bring impartial judgment to the case and to decide whether, despite being labelled by some as a public enemy, the defendant really did commit the offences with which he was charged.

Non-disclosure by prosecutor

The focus, for the first ground of abuse of process, is whether the non-disclosure renders a fair trial to be impossible. If a fair trial can still take place, the court in Salt [2015] EWCA Crim 662 considered a number of factors to be weighed into the balance. These 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; and the availability of sanctions other than halting proceedings.

The Court of Appeal set aside a stay imposed by the trial judge on appeal by the prosecution. The prosecution should consider carefully whether to apply for an adjournment or other remedy to address a shortcoming in disclosure and invite the court to rule on that. Where the court is considering abuse of process however, the focus should remain on whether a fair trial can be achieved. If it can, for example, by a reasonable adjournment, subject to consideration of the second ground of abuse, a stay of proceedings is not likely to be the appropriate remedy.

Examples of when it may be said to be unfair to try the defendant

Proceedings begun or continued in breach of promise not to prosecute

In Hamza [2006] EWCA Crim 2918, the Court of Appeal confirmed that the authorities “suggest that that it is not likely to constitute an abuse of process to proceed with a prosecution unless (1) 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 (2) that the defendant has acted on that representation to his detriment. Even then, if facts come to light which were not known when the representation was made, these may justify proceeding with the prosecution despite the representation.”

These principles apply to decisions to issue a fixed penalty notice or to caution:

• Has an unequivocal representation been made that this is to be the disposal?
• Has the suspect acted to their detriment by accepting this alternative disposal?
• Have further facts come to light?

Even in cases where further facts have not come to light, it may be appropriate to reconsider a prosecution decision not to prosecute, including to divert from prosecution. That is especially so, where a further review of the original decision shows that it was wrong and, to maintain confidence in the criminal justice system, a prosecution should be brought despite the earlier decision. In such circumstances, it is important in addressing any abuse of process argument that the prosecutor applies both the Code for Crown Prosecutors and the guidance on Reconsidering a Prosecution Decision, which addresses the relevant law further.

Manipulation of procedures

It is sometimes alleged that the selection of a charge constitutes a manipulation of procedure, for instance, to avoid a statutory time limit on bringing proceedings, or a custody time limit, or because a defendant has elected trial. Such allegations may need to demonstrate bad faith on the part of the prosecution to substantiate an abuse of process.

What is important is to ensure that the decision on selection of charges has been made and articulated in accordance with section 6 of the Code for Crown Prosecutors. A number of cases illustrate the forms which an abuse of process, successful or unsuccessful, may take. Prosecutors should identify relevant caselaw but be alive to the fact that such cases are also fact sensitive, not least as to whether bad faith is substantiated.

Failure to follow guidance or policy

Paragraph 2.10 of the Code for Crown Prosecutors provides that prosecutors must comply “with the policies and guidance of the CPS issued on behalf of the DPP, unless it is determined that there are exceptional circumstances.”

In R v A (RJ) [2012] EWCA Crim 434 [84], the court held that it remains open to the prosecution in an individual case, for good reason, to disapply its own policy or guidance. What is important therefore is that the dis-application of guidance or policy should be explained in terms consistent with the Code and the law.

Prosecution failures

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, there are important countervailing considerations, not least the public interest in ensuring a trial of those charged with criminal offences, and the rights of victims. See the case of R v Salt [2015] EWCA Crim 662, above.

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) [2015] EWCA Crim 1944.

Abuse of executive power

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). See also the section above jurisdiction. In these cases, only the High Court has jurisdiction to determine whether it is an abuse of process. Again, there are illustrative cases but these are case specific: R v Horseferry Road Magistrates' Court, ex parte Bennett; R v Mullen [1999] 2 Cr App R 143; R v Ahmed [2011] EWCA Crim 184.

The approach to be taken in cases of executive misconduct was summarised by the Court of Appeal in R v Norman [2016] EWCA Crim 1564, as follows:

• 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 such 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
• the seriousness of the offence with which the accused is charged

There must be a clear connection between the misconduct and the fact the person is facing trial to mount an argument that the trial itself should not take place.

Entrapment

In R v Looseley; Attorney General's Reference (No 3 of 2000) [2002] 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 Police and Criminal Evidence Act 1984 [‘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 in R v Moore [2013] EWCA Crim 85, as follows:

• 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
• authentication of the evidence (i.e., of the conversations and contacts)

Relationship between autrefois pleas and abuse of process

“For the doctrine of autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same offence as that with which he is then charged. The word ‘offence’ embraces both the facts which constitute the crime and the legal characteristics which make it an offence. For the doctrine to apply it must be the same offence both in fact and in law”: Connelly v DPP [1964] AC 1254 HL. Where, however, a subsequent trial is based on the same facts or forms parts of a series of offences of the same or similar factual character (but the offence charged is not the same, and so the plea of autrefois is not be available), as a general rule the judge should stay the indictment. The general rule reflects the likelihood that a second trial would be oppressive. The Crown (represented by the prosecuting authorities in England and Wales) should decide before the conclusion of the first proceedings, which charges are to be brought against a defendant arising from the same incident. This was confirmed in R v Beedie [1998] QB 356 where the second trial arose out of the same facts, but the plea of autrefois convict was not available because the subsequent offences were not the same in fact and law.

However, there may in a particular case be special circumstances which make a second trial just and convenient. The judge must then decide in all the circumstances whether the general rule should apply: Connelly v DPP [1964] AC 1254 HL. In such circumstances the prosecutor must consider when reviewing the case whether the burden of demonstrating special circumstances can be discharged: unlike the general burden on the defendant to demonstrate abuse of process, here the burden lies with the prosecution.

What is important in such cases is considering carefully why the suspect was previously prosecuted, resulting in an acquittal or a conviction, and why it is proposed to further prosecute them, including:

• whether there were facts not known to the prosecutor originally which have now unexpectedly come to light, or
• whether decisions taken originally were clearly wrong, or
• whether the degree of overlap is more apparent than real.

A conviction or acquittal by a court of competent jurisdiction outside England and Wales might also found a plea of autrefois acquit or convict. See, for example, Aughet (1919) 13 Cr App R 101.

The plea would only be available where the offence to be charged was the same in law and in fact as that committed abroad and where the accused (if convicted) was punished. See R v Thomas [1985] QB 604 on the important question of the peril which the accused must demonstrate as part of the plea. The plea of autrefois is not available where different offences are charged, but an abuse of process argument may be pursued where the prosecution arises out of the same or similar facts. However, the position is different to one where there has been a domestic prosecution and while the court will scrutinise the circumstances with particular care, there is no burden on the prosecution to prove special circumstances: R v Michael Cheong [2006] EWCA Crim 524 and R v Lama [2014] EWCA Crim 1729.