Abuse of Process

Abuse of Process

The key case that set out the principles for arguing that a case should be stayed as an abuse of process is R v Maxwell [2011] 4 All ER 941. The Court stated that there are two categories of case in which a stay will be granted:

1. Where it will be impossible to give the accused a fair trial
2. 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.

These are regularly referred to as limb one and limb two. Up until recently, limb two could only be argued in the Crown Court but it can now also be argued before the Magistrates. The key consideration the Court will apply relates to the fairness of proceedings. In particular, the question that the court will determine is whether the disadvantage can be accommodated so that the case is fair (Clay v. South Cambridgeshire JJ. [2015] R.T.R. 1).

It is widely accepted that an Abuse of Process is a high bar. There will not be an abuse of process where there is no suggestion of bad faith or of substantial prejudice to the defendant as confirmed in R v Jobe [2004] EWCA Crim 3155.

Potential Grounds for Abuse of Process

The issue as to whether or not it is proper or in the public interest for our prosecution to be brought is not a ground on which an Abuse can be founded. It is insufficient for a Judge to simply take the view that it should not be proceeding. This has been confirmed in a variety of case law and most clearly in R v W (P.) [2016] 2 Cr.App.R. 27.

One argument is where there is a delay in bringing the proceedings. It is highly unlikely that the Prosecution would be stayed solely as a result of the delay in bringing proceedings. The position has been considered at length and summarised in R v TBF [2011] EWCA Crim 726. It was confirmed that there should only be a stay where there was prejudice/unfairness, simply because there had been a delay a stay would be the exception rather than the rule. Any decision as to the prejudice suffered as a result of the delay will be limited to that which can be properly linked to the delay in bringing the prosecution.

The Courts have considered specifically the issue of delay in respect of complex fraud cases. It is the Court’s position that it is harder to show an Abuse due to delay where the case predominantly relies on “contemporaneous documentation” (R v Telford ex p. Badhan [1991] 2 Q.B. 78. Further to the case of Telford, it was confirmed explicitly in the case of R v Buzalek and Schiffer [1991] Crim.L.R. 115, that it is necessary to draw a distinction between those cases which turn on documentation and those that do not.

The Defence may argue that this is an improper prosecution. The relationship between an Abuse of Process and said test was considered by Goldring LJ in R (on the application of Guest) v DPP [2009] EWHC 594 (Admin). Goldring LJ stated that, generally, a decision to stay proceedings is a rare one. A Prosecutor should not be concerned about commencing a Prosecution where there is the possibility of an Abuse of Process. If the Code for Crown Prosecutors is met then it will be “an exceptional case” where the proceedings are stayed as a result of an Abuse of Process argument being advanced by the Defence.

A stay will not be granted where the trial process is itself equipped to deal with the matters complained of. This is generally understood to relate to the admissibility and fairness of the evidence that is relied upon by the Prosecution. Therefore, the manner by which evidence has come into our possession is unlikely to be upheld as a ground for staying proceedings (Mouat v DPP [2001] 2 Cr.App.R. 24).

The test in relation to whether a failure to investigate amounts to an abuse of process is the same as that set out in R (Ebrahim) v Feltham Magistrates' Court in that the court must determine whether a duty exists and then whether the unavailable evidence is such that the Defendant cannot have a fair trial as a result of the prejudice caused. Paragraph 3.5 of The CPIA Code of Practice 1996 requires that “the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect.” In R v Eccleston [2001] EWCA Crim 1626 it was stated that a mere hint in interview is insufficient to require investigation; however, a suggestion of relevant evidence will be more likely to amount to a relevant line of inquiry;