It is rare for courts to order criminal proceedings to be stopped permanently on the basis that to do otherwise would amount to an abuse of process, but Jim has successfully argued this in multiple cases. This has either been because the court has accepted that Jim’s client could no longer receive a fair hearing, or alternatively that stopping the case was necessary to protect the integrity of the criminal justice system. The latter has included cases where there has been bad faith, unlawfulness or executive misconduct, although the power is not limited to those specific circumstances.
The key questions for a Court are:
- To what extent is the accused prejudiced?
- To what degree are the rule of law and the administration of justice undermined by the behaviour of the investigators or the prosecution?
Such arguments take a considerable amount of time to prepare, and often require a meticulous, forensic, reconstruction of the investigation timeline and a critical analysis of disclosure by the prosecution, particularly in relation to what is now an increasing emphasis upon intelligence-led, proactive investigations which are based heavily upon information derived from covert means, including informants.
Relevant case law regarding abuse of process
CA (Crim Div) (Fulford LJ, Nicklin J, Sir Kenneth Parker)
26 November 2019
An individual’s conviction for two counts of conspiracy to cheat the public revenue were safe. Although there had been failures in the prosecution’s disclosure process, they had not been in bad faith and they had been cured by the time of the trial. The prosecution had also been entitled not to investigate further the allegation that there had been another conspirator, due to insufficient evidence against him.
DC (Males LJ, Jefford J)
6 November 2019
The time limit for bringing criminal proceedings under the Welfare of Animals at the Time of Killing (England) Regulations 2015 in reg.41(1)(b), namely that it had to be within six-months of the date that the evidence which the prosecutor thought justified bringing proceedings came to the prosecutor’s knowledge, could be conclusively evidenced by the issue of a certificate under reg.41(2) stating that date. In the absence of fraud, a certificate in proper form which contained no error on its face was not open to challenge by reference to extraneous evidence showing that it was wrong, or even plainly wrong.
QBD (Admin) (Garnham J)
20 June 2019
Decision 2002/584 art.26 required a requesting state to deduct periods of detention occurring during the execution of a series of European Arrest Warrants so as to reduce or eliminate each relevant sentence. However, to interpret art.26 as requiring the requesting state to deduct each period of time spent in custody repeatedly for each EAW in turn would lead to unmerited benefits for the accused.
CA (Crim Div) (Nicola Davies LJ, Spencer J, Morris J)
22 May 2019
Despite the absence of certain evidence at trial, the appellant’s convictions for sexual assault and rape of his half-sister were safe, because the totality of the trial process including the directions given and the summing up was fair.
CA (NI) (Treacy LJ, Horner J)
1 May 2019
A judge had erred in holding that a public interest immunity application under the Criminal Procedure and Investigations Act 1996 s.8(5) was an abuse of process in a case where a disclosure application had previously been made. The s.8(5) application was not the re-opening of the disclosure application.
CA (Crim Div) (Sir Brian Leveson, Jeremy Baker J, Simler J)
28 March 2019
Where a fraud trial was discontinued and then reinstated after a complaint by the victim under the Victim’s Right to Review scheme prompted the Chief Crown Prosecutor to reconsider the notice of discontinuance, the judge had not erred in refusing to stay the prosecution. Prosecution of the case did not constitute executive misconduct and was not an abuse of process.
CA (Crim Div) (Green LJ, Soole J, Judge Walden-Smith)
16 January 2019
A judge had not erred in admitting evidence of a defendant’s previous convictions during a trial for kidnapping, rape and assault as rebuttal evidence under the Criminal Justice Act 2003 s.101(1)(g) against the defendant’s attack on the complainant’s credibility.
CA (Crim Div) (Davis LJ, McGowan J, Judge Katz QC)
6 November 2018
An extended sentence should not have been imposed on an offender where none of the co-accused had received an extended sentence and there were no factors which significantly differentiated him from the co-accused.
CA (Crim Div) (Lord Burnett LCJ, William Davis J, Nicklin J)
31 July 2018
A judge had applied the wrong test when staying as an abuse of process, on the basis of entrapment by a private citizen, criminal proceedings brought against an individual charged with attempting to meet a child following sexual grooming online. The judge had erred by not distinguishing between the conduct of a private citizen and that of state agents when making a finding of entrapment.
DC (Gross LJ, Sweeney J)
23 May 2018
The court quashed a district judge’s decision to issue summonses for offences of fraud which had been issued on the application of a private prosecutor. The prosecutor had failed to comply with his duty of candour by not disclosing material which would have enabled the court to consider whether the application was vexatious, an abuse of process or otherwise improper, to consider whether to make further enquiries and to require the party that he sought to prosecute to be notified of the application and to hear that party.