Stopping a criminal prosecution because of abuse of process
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.
Instruct a criminal solicitor who is rated by his peers and is experienced in successfully arguing abuse of process
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.
Jim Meyer has the experience and expertise to help you successfully stay a case as an abuse of process. If you want you to instruct him, and can afford to fund your case privately, you should call him now.
A claimant was not entitled to receive legal aid to bring a private prosecution for the crime of aggression related to participation in the Iraq war as it was not recognised as an offence in English law. His claim was struck out as having no reasonable prospect of success and as being an abuse of process as it was an attempt to pursue a public law challenge by way of a private claim and relitigate matters which had already been decided.
It was unfair and oppressive for a man convicted in the magistrates' court of charges relating to a hit-and-run incident to have to face a second prosecution brought against him in the Crown Court two years later, since both sets of proceedings were based on substantially the same facts. The Crown Court charge was based solely on a new expert report on the car's speed which was not produced until after the initial conviction, and it could not amount to a special circumstance sufficient to justify a second prosecution.
A conviction for a historic count of rape was not unsafe despite serious shortcomings with disclosure of unused material. The judge had been entitled to find that the trial process could compensate for any prejudice arising.
Sup Ct (OECS) (Judge Morley QC)
20 May 2020
In some cases it would be appropriate to stay criminal proceedings on the ground of undue delay even where prejudice to the defendant could not be established.
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.
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.
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.
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.
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.
A prosecutor's decision not to charge a man with the rape of a woman with learning difficulties was not irrational. The circumstances of the man's acquittal some years earlier on charges of sexual activity with a person with a mental disorder impeding choice were such that the prosecutor had been right to conclude that the man would be able to establish that a second prosecution was an abuse of process.
CA (Crim Div) (Lord Burnett LCJ, William Davis J, Goose J)
5 February 2018
The power of the Court of Appeal (Criminal Division) to order a venire de novo did not include a power to declare a summary trial a nullity, or quash a conviction recorded in such proceedings and remit the matter for retrial. Venire de novo was concerned only with trial on indictment, and with fundamental irregularities rendering such a trial a nullity.
A judge had erred in holding that disciplinary proceedings brought against a police officer were barred on the basis of res judicata. A decision by the Police Appeals Tribunal, allowing the officer's appeal against his dismissal for gross misconduct without remitting the matter, had not been a final decision on the merits for the purposes of cause of action estoppel.
CA (Civ Div) (Flaux LJ, Moylan LJ, Sir Stephen Richards)
25 October 2017
New proceedings based on fresh evidence, which fundamentally changed the nature of the case, were not an abuse of process because they were not a collateral attack on the earlier proceedings. Accordingly, there had not been an opportunity, let alone a full opportunity, for the claimants to run their case.
QBD (Admin) (Holroyde LJ, Dingemans J)
18 October 2017
Although an English translation of a European arrest warrant lacked the list of specific offences for which the appellant had been convicted, there had been no abuse of process in ordering his extradition as the summary of his offending behaviour had been sufficient. The fact that both warrants wrongly stated that the appellant had been convicted and sentenced in relation to nine, rather than eight offences, did not render the warrant invalid, where the French judicial authority had provided information that stated the correct position.
CA (Crim Div) (Davis LJ, Phillips J, Judge Dickinson QC)
28 July 2017
A judge's decision to stay private criminal proceedings as an abuse of process could not stand where there was an error of law and principle in her approach in reaching the decision she reached, and in consequence her ruling was one which it was not reasonable for her to have made.
QBD (Admin) (Sir Alan Wilkie)
14 June 2017
In considering whether an offence on a European arrest warrant seeking the return of a requested person to Austria met the requirements of dual criminality the court had to look at the alleged conduct rather than at the term used to name the offence. In the instant case the offence of slander equated to the UK offence of perverting the course of public justice.
A district judge's decision to order an alleged offender's extradition to Hungary was upheld. The European arrest warrant complied with the Extradition Act 2003 s.2; the appellant had suffered no unfair prejudice in consequence of the extradition proceedings and, as a consequence of the judge's finding that the appellant was a fugitive, her extradition was proportionate.
QBD (Admin) (Dingemans J)
24 January 2017
An appeal against an extradition order was allowed where the court could not be satisfied that the prosecution of the appellant in Latvia was not an abuse of process.
Where a European arrest warrant clearly stated that the requested person was to be surrendered in order to face criminal prosecution, and the particulars supported that assertion, there was no need for a judge, when asked to make an extradition order, to seek further information on the issue of whether there had been a decision to charge or try within the meaning of the Extradition Act 2003 s.12A.
Where European arrest warrants were based on aggregate sentences imposed under the Polish penal code on offenders who had re-offended before judgment was pronounced on an earlier offence, there was no breach of the principle of double jeopardy because the calculation of the aggregate sentences recognised and gave credit for sentences which had already been served in full.
CA (Crim Div) (Simon LJ, Openshaw J, Judge Moss QC)
9 December 2016
The words "undue delay" in the Proceeds of Crime Act 2002 s.40(7)(a) could not be confined to cases of delay amounting to an abuse of process which would justify a stay of the criminal proceedings. A Crown Court judge had not erred when finding that the court had no jurisdiction to make restraint orders in respect of property held by the defendants in a tax fraud case because there had been undue delay in continuing the proceedings.
In extradition proceedings, it was clear from Puceviciene v Lithuanian Judicial Authority  EWHC 1862 (Admin) that the consideration of whether a state had looked at using mutual legal assistance was not relevant to whether extradition was barred under the Extradition Act 2003 s.12A. Further, the Convention relating to the Status of Refugees 1951 (United Nations) art.31 did not provide a defence to extradition, it provided only for immunity from the imposition of penalties by the UK.
An individual could, in principle, bring a private prosecution against someone who had been given a prior police caution for the same incident, and where that caution was still extant. However, that was only so as long as there had been no assurance at the time of administering the caution that there would be no future prosecution. It would be bad practice on the part of the police not to use the recommended form of caution in paras 72 and 88 of the Ministry of Justice guidance about simple cautions, issued in November 2013.
A requested person's extradition to France to serve a prison sentence for offences of organised fraud and money laundering did not amount to an abuse of process as considered in Zakrzewski v Poland  UKSC 2 and was not barred by reason of specialty pursuant to the Extradition Act 2003 s.17.
CA (Crim Div) (Gross LJ, Holroyde J, Cheema-Grubb J)
4 November 2016
Convictions under the Malicious Damage Act 1861 s.36 for obstructing engines or carriages on railways were upheld where two men who had walked through the Channel Tunnel from France before being apprehended close to the English entrance. Their actions had caused rail services to be suspended and that interruption was plainly an obstruction of a number of engines and carriages.
CA (Crim Div) (Lord Thomas LCJ, Popplewell J, Goss J)
20 October 2016
A prison officer's conviction for misconduct in public office was upheld where he had given information to a journalist in return for payment. There had been no impropriety regarding the relevant newspapers' voluntary disclosure to the police which had identified the officer.
A requesting state's failure to inform the court that an individual in extradition proceedings was entitled to a retrial, such that his extradition was initially refused but then subsequently ordered, was not an abuse of process. However, it was a breach of the public policy rule requiring all parties to bring their whole case before the court to be finally decided and was a factor that should be taken into account when considering the statutory bars to extradition.
CA (Crim Div) (Treacy LJ, Elisabeth Laing J, Judge Inman QC)
23 June 2016
In considering the mens rea of the offence of making an indecent image of a child contrary to the Protection of Children Act 1978 s.1(1)(a), a distinction had to be drawn between cases where images were made by downloading to a phone or computer and those where the image was made by the more direct action of photographing or filming. In cases of photographing or filming, the s.1(1)(a) offence was made out by the deliberate act of photographing or filming without the need for knowledge that the image was or was likely to be of an underage child.
Issue estoppel arising from the application of res judicata was not appropriate in the context of extradition proceedings. There was nothing in the scheme of the Framework Decision or the Extradition Act 2003 that supported a different approach. A requested person's extradition to Latvia had not been an abuse of process even though he had previously been discharged in Scotland pursuant to a European arrest warrant on substantially the same matters; he had avoided extradition the first time because of the deficiencies in the medical treatment available for him on his return, but the position had since changed.
A declaration was granted that a defendant had failed to comply with a subject access request under the Data Protection Act 1998 s.7 and an order made that the defendant comply with that request. The defendant failed to establish that either a crime or a privilege exemption applied, and there was no good reason not to exercise the court's discretion in favour of the claimants who had made a valid request.
The European legal principle of conforming interpretation required the domestic courts to give effect to Decision 2002/584 when interpreting the Extradition Act 2003 to the extent that it was possible to do so without contradicting the clear intent of the legislation, and the contrary decision in Podlas v Poland  EWHC 908 (Admin) was given per incuriam. Article 4a of the 2002 Decision was drafted to require surrender if the European arrest warrant stated that the person, in accordance with the procedural law of the issuing Member State, fell within one of the four exceptions. It did not contemplate that the executing state would conduct an independent investigation into those matters.
A district judge had correctly declined to determine a motorist's application for a stay of prosecution in relation to his failure to pay excess parking charges where the application was made on the basis of the second limb of R. v Beckford (Ian Anthony)  1 Cr. App. R. 94. In any event, the motorist had failed to establish any grounds which would have entitled the judge to stay his prosecution as an abuse of process.
Although initially it would have been appropriate to extradite an offender to Poland to serve the remainder of a nine-month sentence for various offences, administrative errors which lead to a significant delay in his appeal against extradition being determined and service of his outstanding sentence on remand, meant that extradition would be a disproportionate interference with his ECHR art.8 rights and/or an abuse of process.
PC (Trin) (Lord Neuberger JSC, Lord Mance JSC, Lord Sumption JSC, Lord Carnwath JSC, Lord Hughes JSC)
25 January 2016
The retrospective repeal of the Administration of Justice (Indictable Proceedings) Act 2011 (Trinidad and Tobago) s.34, which introduced a statutory limitation period for criminal prosecutions, did not violate the principle of the separation of powers. The loss of the limitation defence, which had existed for only two weeks, was attributable to a legitimate change in the law, and not to a legislative intrusion upon the judicial function.
Where a district judge making an extradition order concluded that the first limb of the test in R. (on the application of United States) v Bow Street Magistrates' Court  EWHC 2256 (Admin),  1 W.L.R. 1157 was satisfied, namely that there were reasonable grounds for believing that there was potential for an abuse of process in respect of the requested person's identification, that did not mean that the extradition request should be regarded as abusive unless the foreign judicial authority justified the conviction. It was not for the UK courts to determine whether a requested person was guilty of an offence of which he had been convicted in another country.
A district judge had not erred in ordering the extradition to Kenya of a person who was accused of serious fraud offences. The judge had applied the correct test under the Extradition Act 2003 s.84(1) and had been entitled to find that test to be satisfied in respect of each charge concerned. Further, there was no evidence that extradition would breach the rights of the accused person under ECHR art.3 or art.6.
There was no abuse of process where the Serious Organised Crime Agency had been unaware that an offender's extradition from Spain to the UK had been made conditional upon him having the right to request a retrial, to which he was not entitled to under UK law. The offender had been present at his trial, the retrial condition had been in breach of EU law, and SOCA's conduct had not been so serious that to require the offender to serve his sentence would be an affront to justice.
QBD (Admin) (Ouseley J)
24 July 2015
A Crown Court had correctly convicted an offender of assault; there had been no abuse of process and the court had correctly rejected his case of no case to answer.
Judges had to give the most careful consideration to a case before permitting a second retrial. The test in R. v Bell (Phillip James)  EWCA Crim 3,  1 Cr. App. R. 27 would usually be sufficient to identify where the interests of justice lay, but a wider consideration might sometimes be required. Where the case did not involve murder or violent crime, particularly strong justification would be needed to satisfy the test of extreme gravity.
The conduct alleged against the appellant in a US extradition warrant, concerning the export from the US to Syria of equipment capable of use in the development of chemical and biological weapons, satisfied the dual criminality test because it would amount to an offence of conspiracy to defraud under English law.
CA (Civ Div) (Moore-Bick LJ, Tomlinson LJ, Underhill LJ)
26 June 2015
A judge had been right to strike out as an abuse of process a claim against the British security services based on their alleged complicity in the claimant's ill treatment and torture during his detention and interrogation in Pakistan, as the issues the claimant sought to litigate had already been considered and determined in criminal proceedings.
DC (Elias LJ, Collins J)
23 June 2015
A magistrates' court had not been justified in staying the prosecution of an Italian national charged with failing to give a breath specimen as an abuse of process on the basis that he could not receive a fair trial in the absence of CCTV of the custody suite, as the issue could have been dealt with by way of evidence from the police officers and the accused.
Where there was a disputed prima facie case concerning the origin of handwriting on falsified travel documents against an individual under the Extradition Act 2003 s.84(1), the quality of the evidence should be left to the trial process to resolve.
A district judge had been wrong not to allow a deposition to be taken from a witness in a murder case. The witness, who feared being prosecuted after initially giving one of the defendants an alibi, was not entitled to rely on the privilege against self-incrimination: among other things, the Crown had given an assurance that she would not be prosecuted.
A defendant who had been convicted upon his guilty plea to the offence of conspiracy to cause explosions with intent to endanger life was refused permission to appeal when it subsequently emerged that an expert witness for the Crown had failed to disclose some addendums to his report. Non-disclosure was not, by itself, an abuse of court process. The defendant's guilty plea, which had not been influenced by the expert evidence, amounted to an unambiguous and voluntary confession which unequivocally established his guilt.
CA (Crim Div) (Lord Thomas LCJ, MacDuff J, Jeremy Baker J)
21 April 2015
In the case of a failure by the prosecution to comply with its disclosure obligations, the court should, when considering whether to stay the proceedings as an abuse of process, balance the material considerations and decide whether it was in the interests of justice, including the interest in the integrity of the criminal justice system, that the proceedings should be allowed to continue.
CA (Crim Div) (Hallett LJ, Haddon-Cave J, Patterson J)
24 March 2015
It had not been an abuse of process to prosecute an elderly man for an historic offence of sexual assault which had been committed against a seven-year-old family member. The 23-year delay between the offence and trial did not of itself justify a stay of prosecution, and the judge had been entitled to determine that the offender, who suffered from dementia and other physical ailments, was fit to plead and stand trial.
It would be oppressive to extradite an individual to Croatia to serve a sentence for attempted murder after a 13-year delay. The requested person had been convicted in his absence and without his knowledge and, although he would probably be entitled to a retrial if returned, there was a real risk that he would be prejudiced in the conduct of any retrial by reason of the passage of time.
An appellant's extradition to France was not an abuse of process where a second conviction warrant had been issued following his conviction in absentia. The court would only exercise its implied abuse of process jurisdiction in extradition cases where no other bars to extradition were available, there was cogent evidence that the judicial authority had usurped the statutory regime, and the abuse of process would cause prejudice to an appellant.
The High Court rejected an application by the Security Service to strike out claims brought by a number of Libyans for false imprisonment, misfeasance in public office and conspiracy. The claims arose from allegations that the Security Service had withheld evidence during earlier proceedings before the Special Immigration Appeals Commission and the High Court concerning the claimants' unlawful detention pending deportation, and their subjection to unlawful control and asset-freezing orders. The claimants were entitled to bring private law claims without appealing against the earlier SIAC and High Court rulings.
CA (Crim Div) (Pitchford LJ, Dingemans J, Judge Rook QC)
24 October 2014
Not guilty verdicts returned by a jury in respect of two of five counts of historic indecent assault did not demonstrate that the judge's refusal to stay the prosecution on the ground of abuse of process due to delay and the consequent loss of evidence was mistaken, or that the verdicts were illogical or in any other way unsafe.
Where an offender had been convicted of two firearms offences, and shortly afterwards prosecuted for further, more serious firearms offences arising from the same facts, it was right that the prosecution was not stayed as an abuse of process: there were special circumstances which displaced the general rule that such a prosecution was prima facie oppressive.
The court granted leave to prefer a voluntary bill of indictment under the Administration of Justice (Miscellaneous Provisions) Act 1933 s.2(2)(b) against the defendant, Gary Glitter, on counts of alleged historic sex abuse. Acknowledging the exceptional nature of its decision, the court held that it was in the interests of justice, and the defendant would not be denied a fair trial by reason of delay.
A requested person had failed to show that his extradition to Bermuda to face murder charges as a secondary offender would be incompatible with his human rights because of the prison conditions there. Although the prosecution evidence was far from overwhelming, a jury properly directed could conclude that he had an intention to kill the victim when the principal offender fired the gun.
The conduct of the police and the Security Service in withholding and destroying evidence relating to a sensitive incident involving the appellant amounted to an abuse of process, rendering unsafe his conviction for possessing firearms without a lawful object.
CA (Crim Div) (Hallett LJ, Andrew Smith J, Judge Zeidman QC)
7 August 2014
There had been nothing untoward in a police undercover operation in which officers set up a shop from which they intended to buy stolen goods from the public. Three men who pleaded guilty to various offences arising from the operation had not been in any way vulnerable or enticed by the officers into committing crimes that they would not otherwise have committed.
In extradition proceedings, domestic courts should be extremely reluctant to evaluate the competing arguments about the local law of limitation in the requesting state. The circumstances where evaluation might be justified would be truly exceptional.
CA (Crim Div) (Elias LJ, Jeremy Baker J, Judge Collier QC)
23 May 2014
The appellants, who had been charged with failing to comply with an enforcement notice, had not been entitled to challenge the validity of the notice in the criminal proceedings by seeking a stay of those proceedings: their challenge could only be brought by way of an appeal against the notice or by way of judicial review.
QBD (Judge Seymour QC)
3 April 2014
Summary judgment was granted against an energy purchasing manager who had fraudulently obtained £2.18 million by altering documents so that he personally obtained a rebate from an energy provider that had properly been due to a consortium of buyers led by his employer, a local authority. No answer to the claim had been provided and the manager's counterclaims were struck out as an abuse of process.
CA (Crim Div) (Pitchford LJ, Wilkie J, Patterson J)
21 February 2014
On the facts, it was neither unjust nor unfair for the court to consider exercising its power to make a substitute confiscation order under the Criminal Justice Act 1988 in place of one that was invalidly made under the Proceeds of Crime Act 2002.
A Polish national successfully challenged an order for his extradition to serve the balance of a 12-month custodial term where the Polish court orders were ambiguous and where he had lived a law-abiding life in the United Kingdom for six years, taking employment and discharging family responsibilities. The UK courts were obliged to act compatibly with the human rights of those before its jurisdiction, and to consider the proportionality of extradition requests.
Where defendants had been sentenced in the United Kingdom following their guilty pleas to conspiracy to defraud on a multi-national level, it was neither an abuse of process nor an infringement of the principle of double jeopardy for them to face extradition to the United States to face charges arising out of the same conspiracy. Although the two indictments had common features, they did not deal with the same transactions and were not founded on substantially the same facts.
It was not appropriate to grant leave to appeal a refusal to vary a witness anonymity order where counsel for the Crown in the application for leave to appeal and the Director of Public Prosecutions had previously engaged on behalf of two of the defendants and the trial was still on-going. Doing so might have the effect of clouding the distinction between the roles of the Crown and the defence in the criminal trial process, and the Court of Appeal had a responsibility to respect the integrity of the administration of justice.
DC (Pitchford LJ, Burton J)
23 January 2014
Justices had not erred in finding that there had been no abuse of process in a road traffic case where police had allowed a car to be destroyed before a defendant had had a chance to examine it. Although the police had not acted within normal and reasonable practice in destroying the car, the trial had been able to accommodate any disadvantage that arose from the loss of evidence.
DC (Beatson LJ, Griffith Williams J)
11 December 2013
A magistrates' court's power to stay a prosecution was to be exercised in only the most exceptional circumstances in order to prevent an unfair trial or to protect the integrity of the criminal process. A failure to provide disclosure due to service of material in good faith at an incorrect address did not justify a stay for abuse of process where the situation could have been remedied by an adjournment.
CA (Crim Div) (Lord Thomas LCJ, Griffith Williams J, Judge Goss QC (Recorder of Newcastle))
5 December 2013
It was incumbent on all solicitors to exercise the most scrupulous degree of care and integrity when operating the self-certification scheme promulgated by the Legal Aid Agency. The Agency should review the operation of the scheme, given that it had been abused in the instant case, where a wholly unmeritorious application for leave to appeal against conviction had been made many years out of time.
The appeal of a murder conviction in respect of the shooting of a Catholic woman in Belfast in 1973 was dismissed where the court was satisfied that the delay in prosecution had not been an abuse of process and where hearsay fingerprint evidence and evidence of the appellant's conviction for the murder of another Catholic in 1974 had been properly admitted at trial.
CA (Crim Div) (Sharp LJ, Griffith Williams J, Lindblom J)
28 November 2013
A 30-year delay on the part of a complainant did not render an offender's convictions for indecent assault, indecency with a child, and rape unsafe as the judge had sufficiently dealt with any prejudice to the offender in his summing up and directions to the jury and there had been other evidence that supported the complainant's evidence.
Contrary to what was said in Nolan's Application for Judicial Review, Re  NIQB 128,  N.I. 234, on a committal application a magistrates' court had jurisdiction to entertain an application for a stay of proceedings in cases alleging entrapment.
A judge had been wrong to reinstate a confiscation order against an offender six-and-a-half years after it was made where the delay had been caused by administrative failings by the Department of Work and Pensions. The process had to begin afresh as the circumstances relating to his assets had significantly changed.
QBD (Admin) (Aikens LJ, Mitting J)
24 July 2013
It was not an abuse of process to prosecute an accused for an offence of threatening behaviour arising out of an incident for which he had already been issued with a penalty notice for disorder for a less serious offence, and which he had chosen to contest. There was no principle or policy which required that a person who had rejected a penalty should not be prosecuted for another offence arising from the same set of circumstances.
CA (Crim Div) (Laws LJ, Irwin J, Griffith Williams J)
12 July 2013
It was not an abuse of process to convict an offender of burglary and vacate two prior charges of handling stolen good which arose from the same set of facts. The offender would not remotely be at risk of unfairness or oppression if the handling pleas were vacated and the court proceeded to sentence him for the burglaries.
Where there had been a serious breach of a restraint order, in not using released funds for their authorised purpose, the Crown Prosecution Service had been entitled to charge the offender with a count of doing an act tending and intended to pervert the course of public justice.
CA (Crim Div) (Sir John Thomas (President QBD) , Irwin J, Males J)
27 June 2013
Although a trial judge had erred in considering closed Court of Appeal judgments on disclosure in relation to a previous successful appeal by the defendant on a separate matter, containing material which had not been disclosed to the defence, no further disclosure had been required in the instant proceedings as the withheld material had not undermined the prosecution case and did not sustain a claim of abuse of process.
CA (Crim Div) (Lord Judge LCJ, Moses LJ, Thirlwall J)
21 June 2013
In the context of four unconnected appeals, the court gave guidance to courts on the approach to be taken towards those who were, or might be, victims of people trafficking, after criminal proceedings against them had begun.
It was only in the rarest circumstances that a person whose extradition was sought in order to serve a sentence could claim that his extradition would amount to an abuse of process because it was time-barred. It would be futile to try to define those circumstances, save to say that the clearest possible evidence of bad faith would be required, coupled with unequivocal evidence that the sentence was time-barred.
QBD (Admin) (Sir John Thomas (President), Simon J)
14 June 2013
Where the Spanish courts had made clear that they would apply the decision of the Grand Chamber of the European Court of Human Rights when it was given, it was difficult to see how there was a real risk of a flagrant breach of the European Convention on Human Rights 1950 art.7 if the offender was returned to Spain to await that decision.
The extradition of a British national to France was barred by reason of the passage of time. The French authorities had failed to pursue a European arrest warrant based on accusations of criminal conduct but had instead issued a second warrant four years later after convicting the accused in his absence without informing him of the date of the trial.
A European arrest warrant, which was ambiguous as to whether it related to one or two offences, was valid for the purposes of extradition where further information from the requesting authorities had led a district judge to conclude that the warrant related to one offence only. The warrant was not an abuse of process because the information it contained would not have had an effect on the proper operation of the statutory scheme that would have led to unfairness.
CA (Crim Div) (NI) (Morgan LCJ, Higgins LJ, Girvan LJ)
7 May 2013
The delay in a prosecution for attempted murder was not an abuse of process where it was caused by the defendant absconding. The materials of his rejected asylum application were admissible evidence as they were lawfully obtained in accordance with international conventions applicable at the time, and there was no evidence he was under pressure or would have declined to answer questions put had he been cautioned.
CA (Crim Div) (Sir John Thomas (President QBD) , Cranston J, Leggatt J)
24 April 2013
When allowing an appeal by the Crown against a Crown Court's decision to stay an indictment on the basis of autrefois acquit, the Court of Appeal determined that the scope of a plea of autrefois should be narrowly confined to cases where the offences were the same in fact or law.
A request for extradition was not an abuse of process where the requesting state had squarely addressed the argument advanced by the appellant that the only evidence against him would be inadmissible at his trial in India, and it could not be concluded that its reasoned position plainly had no merit and that it knew that it had no merit.
CA (Crim Div) (Hughes LJ, Cranston J, Judge Radford)
20 March 2013
It was not oppressive to apply the confiscation regime, including the "criminal lifestyle" provisions of the Proceeds of Crime Act 2002 s.10, to defendants convicted of unauthorised trade mark use. A criminal lifestyle was not limited to the types of offences which attracted long prison sentences such as drug trafficking or armed robbery, but included those whose business was founded on the commission of offences.
A stay of a prosecution for battery as an abuse of process was not justified. The erasure of CCTV footage of the incident and inconsistencies in witness evidence as to what actually occurred did not mean that it would be impossible for the accused to have a fair trial, or that he would be prejudiced or disadvantaged to a degree warranting the exceptional course of granting a stay.
A defendant's challenge to a decision by the Public Prosecution Service (Northern Ireland) to prosecute him for assault, having twice been informed that he would not be prosecuted, could be effectively pursued within the proceedings before the criminal court, as there were no exceptional circumstances to justify seeking a remedy through judicial review.
The failure of the Polish authorities, when seeking the appellant's extradition in 2010, to deal with matters which formed the basis of his later extradition in 2012 did not render the later extradition an abuse of process or oppressive.
A judge had not erred in refusing to stay proceedings for abuse of process in a trial concerning sexual offences which took place after the death of a defence witness, where there was no suggestion that the witness would have given unique or striking evidence, and the judge had properly directed the jury on the matter so as not to render the trial unfair.
An application to reopen an appeal in extradition proceedings, on the basis that a decision of the Italian appeal court meant that a retrial in Italy was no longer possible, did not meet the high threshold in CPR r.52.17 and was an abuse of process where there had been a deliberate omission to put all the relevant matters before the Italian court.
It had been appropriate for the magistrates' court to proceed with the trial of a young offender, because, despite expert evidence that he was not fit for trial, he understood and could engage with the trial process and an intermediary had been appointed to assist him.
It was not necessary to modify the well-established principles in relation to the burden of proof in abuse-of-process applications where the allegation of abuse of process arose in relation to proceedings concerning control orders and terrorism prevention and investigation measures.
A requesting state had acted in abuse of process when issuing a conviction warrant against an individual. It was unfair to have issued a conviction warrant against him following his trial in absentia when he had not absented himself from the proceedings but had been legitimately awaiting a pending decision on his extradition in England.
A district judge had been wrong to find that the appellant's extradition was not barred by the rule against double jeopardy as his two convictions in Croatia for war crimes and armed rebellion, although legally different offences, were based on the same factual events.
CA (Crim Div) (Pill LJ, Treacy J, Kenneth Parker J)
8 March 2012
When making confiscation orders against offenders who had embarked on a joint venture and had benefited jointly from their drug-related criminal conduct, a judge had been entitled not to apportion the benefit figure among them. It was entirely legitimate that the offenders each bore the risk of the entire sum jointly obtained, and not merely their share in that sum.
The overall responsibility of the trial judge for the fairness of a trial had not been altered because of the increased availability of intermediaries, or indeed the wide band of possible special measures now enshrined in statute. The conviction for rape of the appellant, who had complex psychiatric difficulties, had not been rendered unsafe by the fact that an intermediary could not be found to assist him.
The Crown Prosecution Service was entitled to prosecute foreign national youths, who had worked as gardeners in cannabis factories, with drug offences where they had not been compelled to commit offences under the European Convention on Action against Trafficking in Human Beings 2005 art.26 .
A magistrates' court had erred in staying as an abuse of process a prosecution brought by a local authority against an individual for operating a private hire vehicle without a licence. The local authority had not entrapped him in carrying out a "test purchase" by booking his vehicle in response to a newspaper advertisement he had placed offering his services.
CA (Crim Div) (Pitchford LJ, Andrew Smith J, Popplewell J)
24 January 2012
A conviction for an offence of conspiracy to supply a Class A drug was quashed where the prosecution had been an abuse of process, having been based on conduct in respect of which the offender had already pleaded guilty to, and been sentenced for, an offence of possession of a Class A drug with intent to supply.
CA (Civ Div) (Lord Neuberger (MR), Maurice Kay LJ, Sullivan LJ)
21 December 2011
The court granted permission to apply for judicial review seeking Norwich Pharmacal disclosure from the secretary of state where such disclosure was necessary in the circumstances of the case and where the information sought could potentially assist the applicant in defending a charge in Ugandan proceedings which, if proven against him, could result in the death penalty.
Charges made against companies under the Transfrontier Shipment of Waste Regulations 2007 reg.23 for the illegal transport of waste were capable of being tried fairly for the purposes of common law and the European Convention on Human Rights 1950 art.7 even though guidance on acceptable levels of contamination was not available. The trial judge would be able to give sufficient directions about minimal levels of contamination to enable the jury to reach a fair decision.
Whether or not a visit to the UK by a foreign diplomat constituted a special mission was for the UK Government to decide, not the courts. The court considered the essential requirements to give a mission the status of special mission and also considered the principle of state immunity ratione materiae. It concluded that an extradition order relating to the Head of the Office of National Security in Mongolia was valid and that he did not have immunity from prosecution.
The Court of Appeal comprehensively reviewed the authorities concerning applications for a stay of criminal proceedings as an abuse of process on the ground of delay. It distilled the principles to be applied and emphasised that such applications were not to be elided with submissions of no case to answer.
CA (Crim Div) (Thomas LJ, Dobbs J, Judge Radford (Recorder of Redbridge))
29 June 2011
The fact that, in reviewing a decision not to prosecute, the Crown Prosecution Service was responding to the rights of the complainants in the prosecution process would be a relevant factor when considering whether proceedings brought following a review amounted to an abuse of process.
The court held that it was an abuse of process for interested parties in receivership proceedings to claim entitlement to assets included in a confiscation order made in respect of another when they had been parties to the confiscation proceedings and had not then disputed the other's entitlement to those assets.
Convictions of numerous defendants for conspiracy to murder persons unknown and conspiracy to murder persons unknown by the detonation of improvised explosive devices on board transatlantic passenger aircraft following three trials were safe. Those counts concerned different conspiracies so the principle of autrefois convict did not arise, and despite worldwide publicity following the verdicts in the first trial, the jurors in subsequent trials were, properly directed, capable of considering the evidence fairly and impartially without regard to earlier publicity.
PC (Jer) (Lord Hope, Lord Rodger, Lord Brown, Lord Kerr, Lord Dyson)
28 March 2011
It was impossible to characterise a decision not to grant an application for a stay of proceedings as perverse or one which no reasonable judge could have reached. Although there had been grave prosecutorial misconduct, there had also been a number of factors which, taken cumulatively, weighed heavily against a stay.
There was a strong likelihood of injustice if a Lithuanian national were extradited to Lithuania in relation to rapes that he was alleged to have committed 11 years earlier in Belarus but for which he would be tried in Lithuania under a bilateral treaty between the two countries.
A magistrates' court was correct to rule that, notwithstanding the long delay caused by the Crown Prosecution Service in disclosing relevant evidence and in bringing driving offences to trial, no abuse of process had occurred where, on the facts of the case, it had not caused the defendant prejudice.
A Turkish national who had been prosecuted in Turkey for offences committed in Germany had received all by way of trial, conviction, sentence and punishment that the Turkish courts required of him. Although he had only spent a small part of the sentence in custody, he was entitled to rely on double jeopardy in proceedings brought by the German authorities seeking his extradition from the United Kingdom to face prosecution for the same offences.
Where an individual had breached an undertaking to notify the relevant criminal court of his English address upon leaving Poland, he was responsible for delay in pursuing assault charges against him and his extradition was not barred by reason of the passage of time under the Extradition Act 2003 s.14.
The Serious Organised Crime Agency was entitled, under the Proceeds of Crime Act 2002 Pt 5, to recover property from the respondents who had benefited from corrupt relationships with companies as the proceedings had not amounted to an abuse of process and the property was recoverable within the meaning of s.304(1) as it had been obtained by unlawful means.
A district judge had been entitled to find that a European arrest warrant was unambiguous as to its purpose and that it was unnecessary for him to receive extrinsic evidence before making an extradition order.
CA (Crim Div) (Moses LJ, Hickinbottom J, Judge Elgan Edwards)
1 February 2011
A trial judge was right to refuse an application, by an offender facing charges of indecent assault and rape, for a stay for abuse of process as there was no serious prejudice to the offender by the passage of time between the offences and when the complainant made the allegations.
A purposive approach had to be taken to determining whether a motorist was entitled to protection from conviction under the Road Traffic Regulation Act 1984 s.85(4). Where a local traffic authority had not strictly complied with its duties under s.85(2) of that Act, it was necessary to ask whether the driver had been given adequate guidance as to the speed limit to the extent that the signs on the relevant part of the road did comply with the Traffic Signs Regulations and General Directions 2002.
CA (Crim Div) (Moore-Bick LJ, Jack J, Judge Stephens QC)
21 December 2010
An offender's conviction for murder was safe where his argument on appeal was essentially that the trial process was rendered unfair by a series of decisions, each of which was beyond criticism, to allow the prosecution to adduce evidence that was properly admissible and probative of his guilt.
There was no basis for a suggestion that the issuing of a second European arrest warrant by Spanish judicial authorities and the consequent sequence of events amounted to an abuse of process following the withdrawal of an earlier warrant for the same offence.
CA (Crim Div) (Richards LJ, Griffith Williams J, Judge Rook QC)
24 November 2010
The fact that a co-defendant to a charge of murder had entered into an agreement to assist the authorities which provided that he would plead guilty to manslaughter in circumstances where there was no legal basis for that offence did not made the admission of his evidence at the trial of the other defendants an abuse or unfair.
It would be an abuse of process to proceed with the prosecution against the claimant after the prosecutor and the claimant's lawyers had reached an agreement, expressed to the court, that no evidence would be offered and that the claimant would be acquitted on the basis that the court would then, at his agreement, impose a restraining order.
While the mere fact that an extradition request made under the pre-Extradition Act 2003 regime had failed was not of itself a basis for refusing a fresh request for surrender under the post-2003 regime, it did not follow that the court's pre-2003 findings were irrelevant.
CA (Crim Div) (Elias LJ, Maddison J, Judge Morris QC)
27 October 2010
Although the Proceeds of Crime Act 2002 did not preclude a court's power to allow confiscation hearings to continue absent the defendant, courts were never to exercise that power where the action of the state had caused the absence.
Where a jury had reached a verdict which was inconsistent with its failure to reach a verdict on two other related counts, and there was a clear case against the alleged offender, it had been appropriate to order a retrial in respect of those outstanding charges.
CA (Crim Div) (Leveson LJ, Davis J, Lloyd Jones J)
21 September 2010
In the circumstances, it had not been an abuse of process to prosecute the appellant for perjury after counsel for the Crown, at the trial where the perjured evidence became apparent, had asserted that the appellant would not face prosecution.
Magistrates had erred in dismissing, on the principle of autrefois convict and as an abuse of process, an information laid against a defendant for driving without due care and attention on the basis that he had accepted a caution for false imprisonment arising from the same incident. Autrefois convict had no application where a caution had been administered, and the differences between the offences meant there had been no abuse of process.
An unsuccessful prosecution did not preclude the Secretary of State for the Home Department from making a control order on essentially the same material as that relied upon by the prosecution at trial.
Parliament had assigned the resolution of disputes about cash alleged to represent the proceeds of crime to the magistrates' court. Accordingly, proceedings begun in the High Court seeking to resolve the issue of ownership of cash seized as the proceeds of crime were an abuse of process.
A judge had been right to impose a confiscation order on two offenders who had failed to comply with an enforcement notice by operating a park and ride facility in breach of planning permission, despite their submission that the scheme had not been run for personal profit but to provide income for a football club.
Allegations of abuse of process and unlawful entrapment against the US Government by a British citizen accused of drug trafficking conspiracy offences were insufficient to stay an order for his extradition. On the facts and evidence, and after consideration of both the statutory extradition process and well-established authorities, the allegations could not be substantiated.
To pursue a private prosecution for false imprisonment against a chief constable who had no involvement at all with the person's arrest and detention was hopelessly misconceived, vexatious and an abuse of process, and was serious misconduct that merited the exercise by a magistrates' court of its power to stay proceedings as an abuse of process.
CA (Crim Div) (Lord Judge LCJ, Wilkie J, Maddison J)
28 April 2010
Arrangements to provide defence lawyers with the relevant material for the sole purpose of discharging their professional responsibilities to their client, and the acceptance by them of access to such material for that purpose, could not, in any circumstances, be regarded as criminal. Where, in the course of proceedings concerning the making and possession of indecent photographs of a child, the trial judge had ordered the prosecution to make copies of the images for his use, with the defence to be shown an identical copy, and the prosecution had given notice that it would not comply with that order, the proceedings had rightly been stayed as an abuse of process.
The provisions of the Criminal Justice Act 2003 s.58 were mandatory and the prosecution's failure to give the undertaking required by s.58(8) at the relevant time meant that it lost its right to appeal under the section.
CA (Crim Div) (Maurice Kay LJ, David Clarke J, Sharp J)
30 March 2010
Despite the summing up in a lengthy fraud case being turgid and unsystematic, its structure and style were not such as to affect the safety of the convictions. Whether such shortcomings made a conviction unsafe was case-specific, and the judge had eventually crystallised the issues.
A judge had erred in ruling at the outset of a trial for offences of historic sexual abuse that a fair trial would not be realistically possible. He should have heard some, if not all, of the evidence before assessing whether the defendant would receive a fair trial.
Whilst decisions to adjourn criminal trials were discretionary and thus only open to challenge in exceptional circumstances, any application to adjourn a criminal trial had to be subjected to rigorous scrutiny, especially where the prosecution's inefficiency was the reason for the application.
CA (Crim Div) (Hooper LJ, Wyn Williams J, Recorder of Croydon)
29 January 2010
A cautious approach was necessary under the Criminal Justice Act 2003 s.114(1)(d) when consideration was being given to the admission of hearsay evidence when a witness of primary fact was alive and well and, on the face of it, able to give oral evidence to the court.
A term in a confiscation order that an offender would be imprisoned if he failed to make the required payments was an integral part of that order and so formed part of his sentence imposed for conspiracy to cheat the public revenue and money laundering offences and non-payment of the confiscation order was not a separate charge.
CA (Crim Div) (Elias LJ, Nicol J, Judge Scott-Gall)
11 December 2009
A man who had pleaded guilty to possessing criminal property, namely a stolen car, after he had test-driven it had not "obtained property", so that a confiscation order should not have been made against him.
QBD (Admin) (Sir Anthony May (President QB), Langstaff J)
9 December 2009
A company director had been properly convicted under the Chemical Weapons Act 1996 s.23, despite having been tried on information stating that he had failed to notify the national authority of his company's production of a chemical, when it should have stated that the company had failed to notify and that that failure was attributable to the director's neglect.
A district judge had erred in finding that there had been an abuse of process by the RSPCA in certifying a prosecution out of time. Prosecutors were not entitled to sit on information so as to extend a time limit but there was a degree of judgment involved and a public interest in only bringing prosecutions following consideration of the evidence by an expert.
Convictions on alternative counts of indecent assault, which depended on sexual intercourse being the indecent act and which were added to a rape indictment more than 12 months after the alleged offences had taken place, circumvented the effect of the Sexual Offences Act 1956 Sch.2 para.10(a) in relation to the time limits for commencement of proceedings under s.6 of the Act and were quashed as an abuse of process.
CA (Crim Div) (Rix LJ, Griffith Williams J, Recorder of Cardiff)
8 September 2009
It was not appropriate to grant an extension of time for an application for leave to appeal against convictions for indecent assault and rape that was brought some six years and eight months out of time where the timetable put forward to explain the delay in bringing the application did not begin to excuse the huge extension of time that the delay in appealing required.
A judge had properly directed the jury regarding the issues when summing up in relation to an allegation of dangerous driving and there had been nothing unfair in allowing the evidence of the driving to be given, as the lawfulness of the actions of police officers prior to the driving was irrelevant to the issues before the jury.
CA (Crim Div) (Richards LJ, Jack J, Judge Baker QC)
29 July 2009
The presence of a serving police officer on a jury in a criminal trial had not compromised the fairness of that trial because, although the case involved allegations of improper police conduct in relation to offences admitted as evidence of propensity, it did not involve a dispute of evidence between defence and police witnesses, and the officer serving on the jury could not be said to have been biased.
CA (Crim Div) (Pill LJ, Burnett J, Sir Robert Nelson)
29 July 2009
A trial judge's ruling that the Financial Services Authority (FSA) had applied improper coercion and persuasion and thereby distorted the fairness of a criminal prosecution amounted to an error of law; it did not constitute an abuse of process for the FSA to conduct an investigation when there was a potential or pending prosecution, provided that it was mindful of the requirements of a fair criminal trial. Applications for leave to appeal against a terminating ruling should normally be made to the trial judge who made it, although there was no absolute requirement in that regard.
The appropriate remedy for abuse of confiscation proceedings would normally be a stay of proceedings, but an abuse of process argument could not be founded on the basis that the consequences of the proper application of the legislative structure could produce an "oppressive" result.
Following an offender's conviction for conspiracy to supply Class A drugs, it was an abuse of process to later try him for money laundering and deception offences that arose out of the drug offences, where the evidence sought to be relied upon in connection with the money laundering had been available at the earlier trial and was strikingly in conflict with the offender's basis of plea.
The conviction of offenders for serious violent offences that arose out of the same incident for which they had already received fixed penalty notices under the Criminal Justice and Police Act 2001 did not constitute an abuse of process where the subject of the caution and the actual prosecution were not the same offence.
A district judge had wrongly concluded that he had no jurisdiction to entertain an abuse of process argument in relation to a civil application for forfeiture under the Proceeds of Crime Act 2002 s.298(1). However, the timing of the hearing of the abuse argument in proceedings before the magistrates' court was a case management matter for the trial judge.
A magistrates' court had been wrong to find that a prosecution under the Environmental Protection Act 1990 s.34 was an abuse of process. Although the prosecuting local authority's waste management enforcement policy allowed for courses of action other than prosecution, it was for it to decide when to prosecute, and it was only when an abuse was plainly shown that a court should intervene.
The prosecution's late decision to not rely on scientific evidence did not prejudice the defendant as the case against him had never been put on that basis alone, and so he was actually facing a case on a reduced, rather than a different, basis.
Whilst the court had jurisdiction to decline to extradite those who were properly requested where there had been abuse of the extradition process by the prosecuting authority, that jurisdiction did not extend to considering misconduct or bad faith by the police of the requesting state in the investigation of the case or the preparation of evidence for trial. It was for the trial court in the requesting state to decide whether evidence was properly obtained and whether its own procedures had been breached.
The quashing of a conditional caution accepted by an individual would not automatically render, or probably result in, any subsequent prosecution by the Crown of the offence in respect of which the conditional caution was administered an abuse of process.
CA (Crim Div) (Hughes LJ (V-P), King J, Judge Barker QC (Common Serjeant of London))
26 February 2009
Where defendants had pleaded guilty and thereby admitted their guilt, it was a misconception for them to argue on appeal that their convictions were unsafe because of the wrongful admission of prosecution evidence at trial, since that evidence did not deprive them of a legal escape from conviction and there had therefore been no abuse of process.
CA (Crim Div) (Thomas LJ, Pitchford J, Judge Brown QC (Recorder of Brighton and Hove))
17 February 2009
The imposition of a confiscation order was not an abuse of process where the director of a company had fraudulently transferred company property during winding-up proceedings, despite the fact that the property had been recovered by the liquidator before the director entered a guilty plea to fraud. It was not an abuse of process to seek to recover more than an offender had profited from his crime or where he had made restitution outside the narrow circumstances outlined in R. v Morgan (John)  EWCA Crim 1323,  4 All E.R. 890.
DC (Maurice Kay LJ, Simon J)
21 January 2009
Where the facts did not disclose that a police officer had required a motorist to produce a driving licence and evidence of insurance for any reason other than the statutory purposes contained in the Road Traffic Act 1988 s.164 and s.165, a magistrates' court was entitled to convict the motorist for failing to produce the required documentation.
CA (Crim Div) (Leveson LJ, Griffith Williams J, Judge Scott Gall)
19 December 2008
There had been no abuse of process in the retrial of a man convicted on four counts of indecent assault despite a delay of 30 years in the complaint being made, and evidence of a previous offence had been correctly admitted as evidence of propensity.
There was no automatic requirement on the prosecution to retain closed-circuit television evidence in cases where it potentially recorded the giving of a warning as required by the Road Traffic Act 1988 s.7(7) when requesting a specimen for analysis where a person was suspected of driving with excess alcohol, whether or not the giving of the warning was raised as an issue by the defence before trial.
Although it would not necessarily be oppressive for the prosecution to pursue confiscation proceedings where there was an enormous disparity between the amount of the defendant's gain from offences involving fraud and the amount of the confiscation order, it would be oppressive for the prosecution to rely on the form of the counts (i) to bring the criminal lifestyle provisions into operation when they could not have applied if the charges had reflected that the extent of the fraud was much less than the threshold of £5,000, and (ii) to advance the contention that the defendant had benefited to an extent several hundred times that amount.
A district judge should have stayed as an abuse of process a private prosecution against a newspaper brought on the basis that an interview was likely to identify a child and was an offence under the Children Act 1989 s.97, as the private prosecutor had been prepared to be identified herself in circumstances which were likely to identify the child.
CA (Crim Div) (Hughes LJ, Andrew Smith J, Judge Loraine-Smith)
20 June 2008
In confiscation proceedings, in the rare case where (a) the defendant's crimes were limited to offences causing loss to one or more identifiable losers; (b) his benefit was limited to those crimes; (c) the loser had neither brought nor intended to bring civil proceedings to recover the loss; but (d) the defendant either had repaid the loser or was ready, willing and able immediately to repay him the full amount of the loss, it could amount to an abuse of process, and be oppressive, for the Crown to order the defendant to pay up to double the full restitution that he had made or was willing immediately to make.
HL (Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry, Lord Carswell, Lord Mance)
21 May 2008
The Immigration and Asylum Act 1999 s.31 should not be read as limited to offences attributable to a refugee's illegal entry into or presence in the United Kingdom, but should provide immunity from the imposition of criminal penalties for offences attributable to a refugee's attempt to leave the UK in the continuing course of a flight from persecution even after a short stopover in transit.
CA (Crim Div) (Dyson LJ, Openshaw J, Judge Gordon)
14 May 2008
Even though the prosecution had not complied with a disclosure order it was not an abuse of process for it to call a witness whom it had previously declared unreliable, and therefore a conviction for unlawful wounding was not unsafe.
There was no abuse of process warranting a halting of a prosecution for selling an item to which a false trade description had been applied where the goods had been destroyed in the process of being tested, preventing the party from whom the goods had been purchased from conducting their own tests.
CA (Crim Div) (Sir Igor Judge (President), Aikens J, Swift J)
1 May 2008
There was no basis for interfering with a judge's terminating ruling in respect of one count of attempting to abduct a child, an offence alleged to have taken place around 12 years before, because critical evidence no longer existed and therefore a fair trial could not take place.
CA (Crim Div) (Lord Phillips of Worth Matravers LCJ, Pitchford J, Dobbs J)
23 April 2008
It had not been an abuse of process for the prosecution to accept a guilty plea from a co-defendant to an offence of unlawful wounding rather than wounding with intent to cause grievous bodily harm but to refuse to accept such a plea from the defendant.
PC (Trin) (Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury)
9 April 2008
Charges against the former prime minister of Trinidad and Tobago of knowingly making false declarations as to his financial affairs had been brought within the five-year time limit under the Integrity in Public Life Act (Trinidad and Tobago) 1987. Although his convictions had been quashed for apparent bias by the chief magistrate, he had not been entitled to a stay of further proceedings.
CA (Crim Div) (Sir Igor Judge (President QB), Gross J, Blair J)
19 March 2008
Where two defendants had been charged with counts of murder and causing or allowing the death of a 16-month-old child contrary to the Domestic Violence, Crime and Victims Act 2004 s.5, it was not unfair or an abuse of process for the Crown, in anticipation of a submission of no case to answer, to withdraw the allegation of murder against one of the defendants, but not the other, after the conclusion of the evidence. It was highly unlikely that in a case to which s.6(4) of the Act applied that a defendant would be recalled in order to give evidence of a contradictory defence.
Magistrates had erred in refusing to state a case in relation to whether the place where the defendant was driving was a "road" or other public place for the purpose of the Road Traffic Act 1988 s.192(1), as there was a lack of clarity in the authorities and the issue required further consideration.
A youth court had erred in refusing to grant a stay of prosecution for an offence of grievous bodily harm in circumstances where a promise had been made by a police officer during interview that the matter would be dealt with by way of a final warning.
The magistrates' court had been wrong to stay the prosecution of the respondent as an abuse of process because, although the loss of the prosecution's video evidence was in the circumstances an impediment to the respondent, he still had adequate means to challenge the prosecution case and the magistrates' court could have dealt with the matter in such a way as to ensure a fair trial.
The police commissioner and the CPS had been entitled to prosecute two youths for the offence of criminal damage, and the CPS had not, on the evidence, made a representation giving rise to a legitimate expectation on the youths' part that the matter would be dealt with by way of reprimand or final warning as opposed to prosecution.
A magistrates' court had acted perversely in issuing a summons against a barrister alleging that he had attempted to pervert the course of justice where the information that was laid for the issuing of the summons was an abuse of process, vexatious and oppressive as it sought to re-open matters that the Court of Appeal had determined were completely unsubstantiated and without any merit whatsoever.
A decision of the Crown to lay numerous informations alleging indecent assault against the accused, after receiving an indication from the sentencing judge that the single charge it had originally brought did not reflect the criminality of the accused's offences, did not constitute an abuse of process.
CA (Crim Div) (Lord Philips LCJ, Ouseley J, Blake J)
21 December 2007
In the circumstances it had not been necessary to stay criminal proceedings for offences relating to benefits fraud pending a decision of the Court of First Instance of the European Communities on whether a Member of the European Parliament was entitled to privilege or immunity. A decision of the European Parliament that immunity be waived had been in force, and there was no reasonable likelihood that that decision would be overturned.
In the circumstances the Fraud Act 2006 s.13 deprived the appellant companies of the right to claim privilege against self-incrimination in relation to the disclosure of information required by court order. Interim relief granted under the Civil Jurisdiction and Judgments Act 1982 s.25 in support of foreign proceedings might be more extensive than would be available if the substantive proceedings were English proceedings.
If the youth court decided to halt the trial of a child on the ground that he lacked the mental capacity to take an effective part in the proceedings it should consider whether to switch to a fact-finding process. The proceedings should be stayed as an abuse of process before fact-finding only if no useful purpose at all could be served by finding the facts.
CA (Crim Div) (Latham LJ (VP CA Crim), McKinnon J, David Clarke J)
29 March 2007
If the prosecution applied under the Proceeds of Crime Act 2002 s.6, although the court had a discretion as to making a confiscation order where the victim was commencing proceedings for compensation, such an order was mandatory where the offender had already fully reimbursed the victim.
CA (Crim Div) (Sir Igor Judge (President QB), Mackay J, Royce J)
21 March 2007
A judge had been correct to refuse an application to stay proceedings as an abuse of process and rule that it had been unnecessary for the Crown to disclose to a defendant the source of material protected by public interest immunity where the judge had limited himself to material in the public domain.
An extradition was not barred by reason of double jeopardy because of an earlier conviction in a requesting state relied upon as evidencing the extradition offence. The subject matter, scale of activities and period over which the extradition offence was alleged to have occurred were neither substantially the same nor overlapping those in the earlier conviction.
An extradition was not barred by reason of double jeopardy because of an earlier domestic prosecution. The subject matter, scale of activities and period over which the criminal acts were alleged to have occurred were not the same or substantially the same in the two sets of proceedings.
PC (Trin) (Lord Bingham of Cornhill, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell, Lord Mance)
30 November 2006
The power to stay criminal proceedings for abuse of process was wide enough to embrace an application challenging a decision to prosecute on the ground that it was arrived at under political pressure or influence or was motivated politically rather than by an objective review of proper prosecutorial considerations.
A delay of up to 11 years between alleged extraditable offences occurring and extradition proceedings being commenced in the United Kingdom meant that it was unjust pursuant to the Extradition Act 2003 s.11 and s.14 to extradite an individual as there was a serious risk that a fair trial could not occur.
CA (Crim Div) (Lord Phillips LCJ, Penry-Davey J, Pitchford J)
28 November 2006
The Offences against the Person Act 1861 s.4 provided an exception to the general principle under common law that an inchoate offence was not committed unless the conduct planned or incited would, if carried out, be indictable in England.
It was inappropriate for the judge in extradition proceedings to make an order for disclosure in relation to allegations of abuse of process. The appropriate course was for the judge to call upon the judicial authority that had issued the arrest warrant, or the state seeking extradition, for whatever information or evidence the judge required in order to determine whether an abuse of process had occurred or not.
CA (Civ Div) (Sir Anthony Clarke MR, Auld LJ, Arden LJ)
27 July 2006
A defendant could rely on self-defence to a claim for damages for assault and battery if he showed that he mistakenly but reasonably and honestly thought that it was necessary to defend himself against attack or an imminent risk of attack, and that the force he used was reasonable.
CA (Crim Div) (Sir Igor Judge (President), Sir Mark Potter (President), Crane J)
27 July 2006
The findings in the care proceedings relating to the care of a child, whose brother had been allegedly murdered by its father, could not be a final determination of the criminal proceedings. The paramount consideration in the care proceedings was the welfare of the child and issues of prosecution or conviction could not be determined by that court.
HL (Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood, Lord Mance)
26 July 2006
A private prosecution could be regarded as an abuse of the process of the magistrates' court where a defendant had agreed to be formally cautioned by the police on the assurance that, if he agreed, he would not have to go before a criminal court.
CA (Civ Div) (Sir Igor Judge (President), Scott Baker LJ, Hallett LJ)
25 July 2006
The Administrative Court in proceedings for a certificate of inadequacy under the Drug Trafficking Act 1994 s.17 did not have jurisdiction to go behind the basis of the confiscation order made by the Crown Court, and to attempt to do so was an abuse of the process of the court.
A judge was entitled to conclude from the evidence of police officers that they had not acted in bad faith when using covert surveillance to obtain evidence in Spain and Ireland in relation to a conspiracy to import cannabis into the United Kingdom, and it was therefore unarguable that there was no proper basis for his conclusion that the Crown had not knowingly abused its executive powers.
Provided that the description in a warrant of the facts relied upon as constituting an extradition offence identified such an offence and when and where it was alleged to have been committed, it was not necessary or appropriate to subject it to the requirements of specificity accorded to particulars of a count in an indictment or an allegation in a civil pleading in the UK.
Convictions for conspiracy to evade duty payable on spirits were safe, since fresh material regarding the misfeasance of an investigating officer in other diversion fraud cases had not disclosed an abuse of process entitling the court to intervene or to hold that the verdicts were unsafe.
CA (Crim Div) (Lord Phillips LCJ, McCombe J, Gross J)
21 March 2006
Although a refugee using a forged passport had a statutory defence to a forgery charge, there was no such defence to a charge of attempting to obtain services by deception. However, if the Crown had adopted a practice of combining the former charge with the latter in an indictment so as to exploit that differentiation in the interests of immigration control, it could be argued that such a practice constituted an abuse of process.
CA (Crim Div) (Rose LJ, Stanley Burnton J, Hedley J)
6 March 2006
In light of a number of propositions derived from authority that should be considered on an application for a stay of proceedings, on the ground of abuse of process due to delay, there was in the circumstances no ground for regarding a conviction as unsafe by reason of the judge's refusal to grant a stay of proceedings.
Although the judge conducting an extradition hearing under the Extradition Act 2003 possessed an implied jurisdiction to hold that the prosecutor was abusing the process of the court, no finding of abuse could be justified (in a case where the category 2 territory had been designated for the purpose of s.84 of the 2003 Act) by the prosecutor's refusal or failure to disclose evidential material beyond what was contained in the extradition request, since under the statutory scheme the prosecutor did not have to establish a case to answer.
Although validity of the warrant was not expressly mentioned in the Extradition Act 2003 as a question that had to be determined by the district judge at the extradition hearing, it had to be treated as a question that had been determined for the purposes of s.27 of the Act. Despite the absence of an express power to consider compliance with s.2 of the Act, the district judge had to consider whether as a result of non-compliance with those provisions he did not have jurisdiction, since the jurisdiction of the court depended on the validity of the warrant.
The duties of disclosure under the Criminal Procedure and Investigations Act 1996 and the code of practice issued under the 1996 Act created duties in respect of material that the prosecution or the police held and which the prosecution had inspected. The provisions were not directed to creating duties for third parties to follow.
Staying criminal proceedings for an abuse of process was a power that ought only to be employed in exceptional circumstances, and in such a case abuse had to be established on the balance of probabilities. The trial of the defendant who had a mental age of eight did not necessarily involve a breach of the European Convention on Human Rights 1950 Art.6 , and the youth court was able to adapt its procedures so that he could effectively participate in the proceedings.
The principle of forum conveniens had no place in extradition law; there was no justification for extending the rule against double jeopardy to require that cross border criminality arising out of one course of conduct be tried in one jurisdiction.
CA (Crim Div) (Thomas LJ, Silber J, Judge Griffith Williams QC)
26 August 2005
When making confiscation orders against the appellants under the Criminal Justice Act 1988 s.71 , the judge was right to conclude that he did not have the discretion to take into account earlier repayments made by another party to which the appellants had contributed.
Convictions for murder following a trial were not rendered unsafe by reason of the fact that the prosecution had subsequently accepted pleas of guilty to manslaughter from others involved in the same incident.
Undisclosed prosecution material had neither weakened the Crown's case nor strengthened the appellant's case and there had been no abuse of process and no breach of the European Convention on Human Rights 1950 Art.6 in excluding it.
The soliciting, by the police, of funds from potential victims of fraud was fraught with danger as well as being outside police powers. However, on the facts of the instant case, the conduct of the police fell short of conduct that required the prosecution of the alleged perpetrators of the fraud to be stayed.
It was not unlawful or abusive for an individual to bring a private prosecution against an individual who had already received a police caution in respect of the offence that was the basis for the private prosecution.
Notwithstanding the fact that there was no prejudice to the appellant as a result of the placing of covert listening devices in a police yard, general unlawful acts of the kind done in the instant case amounting to a deliberate violation of a suspected person's right to legal professional privilege were so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution was rendered an abuse of process.
An undercover police operation to ascertain whether the appellant, who was on bail awaiting trial for handling stolen goods, was still handling stolen goods was reasonably regarded as necessary and proportionate and there was no reason for the judge to order a stay of proceedings for abuse of process.
Where the European Court of Human Rights had ruled there had been a breach of the appellant's right to a fair trial on the basis that undisclosed evidence might have had a bearing on his application for a stay, the conviction was nevertheless safe.
CA (Crim Div) (Gage LJ, Morrison J, Judge Zucker QC)
15 March 2005
In the circumstances, a sense of unease created amongst the jury by a Watson direction, coupled with the failure of the judge to grant an adjournment to enable the defence to investigate whether another person had committed the offence, rendered the convictions unsafe.
The appellant's conviction for rape was safe where he was not substantially prejudiced by the Crown's decision to prosecute after indicating to him that it was not going to continue with the proceedings, and the trial judge had given a full and careful direction to the jury in relation to a hostile witness and a complainant who had shown herself to be untruthful. Given the appellant's previous good character, a sentence of eight years' imprisonment was quashed and a sentence of five years substituted.
QBD (Admin) (Collins J)
7 December 2004
There was no doubt that proceedings under the Proceeds of Crime Act 2002 Part 5 were civil proceedings and that conclusion was supported by Strasbourg jurisprudence. The standard of proof to be applied to alleged unlawful conduct was a balance of probabilities and no gloss was to be put on those words. The European Convention on Human Rights 1950 Art.7 did not apply to such proceedings as no penalty was involved. The fact that a respondent had not been prosecuted did not mean that he had been exonerated, and therefore proceedings under the Act were not an abuse of process where there was a good arguable case that there had been unlawful conduct.
Where a lorry driver and his employer were tried together for causing death by dangerous driving and manslaughter respectively, and the length of the trial was over three times the original estimate, the delay in the trial was not of such a length as to require an explanation and even if it was the explanation for the delay justified that delay and no undue prejudice had been caused.
CA (Crim Div) (Rix LJ, Poole J, Judge Fabyan Evans)
10 November 2004
It was an abuse of process to prosecute the defendant heroin addict for an offence of possession with intent to supply drugs where an undercover police officer had caused, rather than provided a mere opportunity for, the commission of a crime by persuading the defendant to supply her with heroin. The prosecution should have been stayed.
CA (Crim Div) (Clarke LJ, Douglas Brown J, Gibbs J)
9 November 2004
Despite a considerable passage of time between the offences and trial, a fair trial was still possible and the trial judge was aware, when refusing to stay the proceedings on the basis of the delay, that he would be able to give appropriate directions to the jury. However, in view of the offender's age, good character over many years, health and the nature of the offending, the sentence of eight years was quashed and substituted by a total sentence of six years' imprisonment.
Before criminal proceedings were instituted by a local authority, acting in relation to strict liability offences under the Trade Descriptions Act 1968 , consideration had to be given to the terms of the authority's own policy guidelines on the prosecution of offences.
HL (Lord Bingham of Cornhill, Lord Steyn, Lord Clyde, Lord Rodger of Earlsferry, Baroness Hale of Richmond)
14 October 2004
It was impermissible for the Crown to prosecute a charge of indecent assault under the Sexual Offences Act 1956 s.14(1) in circumstances where the conduct upon which that charge was based was only an act of unlawful sexual intercourse with a girl aged under 16 in respect of which no prosecution could be commenced under s.6(1) of the Act by virtue of s.37(2) of, and Sch.2 to, that Act.
In the absence of duplicity, abuse or impropriety a magistrates court was not entitled in the purported exercise of its discretion, to refuse to issue summonses in the form suggested by a prosecuting authority.
CA (Crim Div) (Latham LJ, Astill J, Sir Charles Mantell)
29 July 2004
Non-disclosure of material showing that a witness for Customs and Excise had been offered a substantial reward in return for giving evidence rendered all the convictions of conspiracy to import cannabis unsafe, despite the fact that three defendants had pleaded guilty.
A court had jurisdiction at the committal stage to stay proceedings on the basis that a trial would not be fair but such power should be exercised sparingly. A court had not erred in not allowing the prosecution to call evidence following an unsuccessful submission of no case to answer on an abuse application given that it had had the opportunity to call evidence prior to the application but had chosen not to. A decision to allow an abuse application on the basis of authority in circumstances where there was no improper conduct in relation to material in possession of the prosecution and subject to the defendant's legal professional privilege was Wednesbury unreasonable. Guidance given as to proper procedure on applications that proceedings were an abuse of process.
CA (Crim Div) (Thomas LJ, Gage J, Sir Richard Rougier)
29 June 2004
Convictions for rape and indecent assault were safe despite considerable delay between the offences and trial. The trial judge had been right to refuse an application for a stay for abuse of process and a submission of no case to answer. He had correctly concluded that the matter was one for the jury with the assistance of directions on prejudice and delay.
CA (Crim Div) (Tuckey LJ, Douglas Brown J, Hedley J)
22 June 2004
It was in the public interest that once the Department of Trade and Industry or the Official Receiver was satisfied that material obtained under the Insolvency Act 1986 s.235 was required for criminal investigation, they should be free to disclose it without an elaborate balancing exercise or the sanction of a court or notice to the individual concerned. If the Official Receiver was given information under s.218(3) of the Act he would be entitled to pass it to a prosecuting authority in the same way as the liquidator in a voluntary liquidation could do under s.218(4) of the Act, although that was not spelt out in the Act.
Crown Ct (Chester) (Pitchford J)
18 June 2004
The prosecution's failure to timeously disclose the fact that some of its witnesses had attended a witness training course had not unfairly prejudiced the defence, as the course was an attempt to familiarise witnesses with the task of giving evidence, which was different from the orchestration of evidence.
The claimant's application for permission to apply for judicial review had been premature as its proposed challenge to the Environment Agency's decision, to prosecute the claimants for alleged breaches concerning its waste management, had to be determined after investigation of the facts and in the context of the evidence. It would not be appropriate to attempt, by judicial review, on incomplete facts, to intervene in the progress of the prosecution.
PC (Trin) (Lord Bingham of Cornhill, Lord Hoffmann, Lord Walker of Gestingthorpe, Lord Carswell, Lord Brown of Eaton-under-Heywood)
8 June 2004
The trial judge in criminal proceedings in Trinidad and Tobago had no inherent jurisdiction to order postponement of press reporting of the open court proceedings and where a judge had wrongly made such orders the appellant publishers and journalists were entitled to seek constitutional redress but were granted only declaratory relief since it would have been a contempt of court to publish the material covered by the non-publication orders.
CA (Crim Div) (Lord Woolf of Barnes LCJ, Aikens J, Fulford J)
4 May 2004
The defendant's conviction for indecent assault was, in all the circumstances including the inconsistencies in the jury's verdicts, unsafe. It was questionable whether the practice of making applications for abuse of process, where there was delay prior to trial was helpful and the best time for making any application should be after the evidence had been called.
The appellant's conviction in 2002 of the rape of his wife in 1970 was not an abuse of process as a man could be properly convicted of raping his wife when the incident occurred before the decision of R v R (1992) 1 AC 599.
A judge had been entitled to allow a trial for counts of indecent assault, rape and assault occasioning actual bodily harm to proceed although an investigation into complaints regarding the appellant carried out over ten years earlier had concluded with a decision not to prosecute. Given the alleged sequence of events and the nature of the allegations made, the judge had been entitled to give a direction that the evidence of each of the complainants was capable of mutually supporting each other.
CA (Crim Div) (Kennedy LJ, Penry-Davey J, Hedley J)
19 February 2004
Investigations discontinued prior to April 1 1997 did not amount to a criminal investigation invoking the committal regime under the Criminal Procedure and Investigations Act 1996 Part I . However a hybrid committal could take place if previous investigations had been put on hold and resurrected following the 1996 Act coming into force.
An application for forfeiture of cash under s.298 Proceeds of Crime Act 2002 was not an abuse of process merely because it had been made following a refusal of an application to extend the time limit for the detention of the cash and in circumstances where there was no better evidence as to its provenance since that refusal.
Convictions for attempted murder and burglary with intent to inflict GBH were safe as, in the circumstances, the judge had been right to allow the indictment to be amended and to refuse a stay for abuse of process where the defendant had pleaded guilty to lesser offences of wounding with intent. The judge had correctly directed the jury on expert opinion and the summing up overall was fair and balanced.
CA (Crim Div) (Waller LJ, Hughes J, Roderick Evans J)
6 November 2003
Refusal of leave to appeal against a conviction following a guilty plea consequent on the refusal of a stay of proceedings for abuse of process. In cases where a judge had heard the evidence relating to an application to stay for abuse of process, the Court of Appeal was most unlikely to reverse his findings of fact unless satisfied that they were findings that no judge in his position could reasonably have reached.
Where a jury inadvertently returned verdicts on two counts arising in the alternative, it was proper for the conviction for the lesser offence to be quashed. On the facts of the case, police had not acted in bad faith when interviewing witnesses for the defence on suspicion of conspiracy with the defendant to pervert the course of justice.
CA (Crim Div) (Rose LJ, McCombe J, Recorder of Bristol)
28 July 2003
There was no principle to be found in R v B (2003) that a period of delay of 30 years, or any other period, was determinative on an application for a stay for abuse of process. There was no reason for the judge to order severance of the counts.
The term "current state" in s.2A Road Traffic Act 1988 implied a state different from the original or manufacture state of a vehicle. Accordingly convictions for causing and procuring death by dangerous driving were quashed where agricultural machinery, authorised for use on the roads, was in its original condition at the time of a road traffic accident.
Appeals against convictions for murder were allowed as the non-disclosure of prosecution evidence influenced the jury's assessment of the reliability of the evidence of a key eye-witness, and the use of a hearsay statement of a witness who had not given evidence at the trial was unfairly prejudicial to the defence.
Where the prosecution accepted a plea to careless driving and following advice by the judge to reconsider, revoked that decision and proceeded with a charge of causing death by dangerous driving, there had been no abuse of process and what had happened was in accordance with the Farquarhson guidelines. R v Bloomfield (1997) distinguished.
The district judge had been correct to stay proceedings in respect of alleged breaches of a noise abatement notice by reason of the prosecution's late disclosure of material, that could reasonably have been expected to assist the defence, within the meaning of s.7(2)(a) Criminal Procedure and Investigations Act 1996.
PC (Gib) (Lord Hope of Craighead, Lord Rodger of Earlsferry, Sir Philip Otton)
9 April 2003
Special leave to appeal against a decision of the Gibraltar Magistrates' Court was refused because the petitioner had not exhausted all local remedies.
A conviction for arson was safe where a prosecution failure to preserve material evidence had not caused prejudice to the offender, and a fire officer's initial examination had indicated no practical need to preserve it.
Convictions for conspiracy to cheat the public revenue were unsafe and had to be quashed as the defendant's application for a stay for abuse of process might have succeeded if the Crown had not given certain assurances as a result of being misled by a customs officer, over evidence in unrelated trials, which indicated that trade had been diverted from one bonded warehouse to another with custom's knowledge.
CA (Crim Div) (Potter LJ, Butterfield J, Judge Paget QC)
20 December 2002
It was not necessarily an abuse of process for the prosecution to bring and pursue a charge of indecent assault against a defendant in circumstances where the conduct upon which the charge was based was essentially that of unlawful sexual intercourse with a girl under 16, and the 12-month limitation period in respect of the latter offence had elapsed, as everything depended on the facts of the individual case.
The district judge was wrong to order a stay of proceedings where CCTV tapes, which the defendant argued were relevant to his defence, had not been retained by a supermarket, because whether in fact the contents of the videos would have borne on the complainant's evidence depended on what she might say at trial.
In the context of charges of failing to comply with enforcement notices contrary to s.179(2) Town and Country Planning Act 1979, when assessing whether there was a breach of the reasonable time requirement in art.6(1) European Convention on Human Rights 1950, for time to begin to run more was required than simply the expiration of the enforcement notice period.
An appeal against conviction following a guilty plea failed as there had been no unfair abuse of process in the non-disclosure by the Crown of authorities under the Regulation of Investigatory Powers Act 2000 relating to police surveillance, and that surveillance had been lawful.
CA (Civ Div) (Simon Brown LJ, Sedley LJ, Scott Baker LJ)
23 October 2002
There was no principle of law that excluded the action for misfeasance in public office purely because the consequence was personal injury or death rather than loss of or damage to property, and regardless of the identifiability of the victim(s). * Application for leave to appeal to the House of Lords pending.
Where the respondent argued that permission to apply for judicial review should not have been granted because there was an alternative remedy, it was not appropriate for the court at the substantive judicial review application to decline to accept jurisdiction, however that did not mean that a grant of permission in an alternative remedy case was inviolate.
Guidelines on the construction of s.51 and s.52 Crime and Disorder Act 1998, replacing committal proceedings for indictable-only offences and setting out the procedure of "sending" defendants to the Crown Court for trial.
CA (Crim Div) (Latham LJ, Goldring J, Judge Stokes QC)
25 April 2002
When determining an application to admit evidence under ss.23 and 26 Criminal Justice Act 1988 the decision as to whether it was practicable to secure attendance depended upon all the facts of the case at the time of the application being made. While it was accepted that no prejudice necessarily had to be proved to show an abuse of process, where an undertaking had been made in the magistrates' court to reduce a charge, nothing other than prejudice could have resulted in the sort of injustice, or affront to justice, that would have justified the conclusion that the prosecution should have been stayed.
Although the Court of Appeal had released a prisoner and quashed his conviction, that did not entitle him to compensation pursuant to s.133 Criminal Justice Act 1988 or under the ex gratia scheme because his conviction had not been reversed.
As a general rule the Crown was entitled to adduce evidence that was sufficiently relevant to an issue in the case as advanced by the Crown, but all that was irrelevant or not sufficiently relevant to the case as put should, generally speaking, be excluded, especially if it was likely to prejudice a defendant.
PC (Trin) (Lord Hope of Craighead, Lord Browne-Wilkinson, Lord Scott of Foscote, Sir Andrew Leggatt, Sir Christopher Slade)
4 February 2002
The appellant's constitutional motion against the police of Trinidad and Tobago became an abuse of process at the point at which he received an explanation for the detention of his car. A common law remedy became available to him from that point.
Crown Ct (Nottingham) (Newman J)
29 January 2002
A murder trial was stayed after the deliberate interception of privileged conversations by police officers, even though the tapes were not used by the actual investigating officers, because such actions rendered a fair trial impossible.
HL (Lord Slynn of Hadley, Lord Browne-Wilkinson, Lord Steyn, Lord Hope of Craighead, Lord Hutton)
24 January 2002
Confiscation proceedings under Part VI Criminal Justice Act 1988 were not incompatible with an offender's rights under the European Convention on Human Rights. A judge had to avoid any serious or real risk of injustice when considering an application for a confiscation order.
CA (Crim Div) (Mance LJ, Penry-Davey J, Leveson J)
20 December 2001
An appeal against conviction for indecently assaulting three young boys was refused. Despite substantial delays on the part of the police, this was not an appropriate case in which to order a stay for abuse of process.
CA (Crim Div) (Waller LJ, Rougier J, Stanley Burnton J)
19 December 2001
Although a trial judge should have exercised his discretion and allowed the defence to cross-examine the complainant, who had made allegations of rape and indecent assault, in relation to a matter pursuant to the Youth Justice and Criminal Evidence Act 1999 s.41(5), that error did not render the trial unfair because the matter was not central to the defence case.
Unless the Crown had cynically proceeded against a relation to put pressure on the accused there was no unfair and improper pressure in accepting a plea from one spouse whilst discontinuing against the other.
An unsuccessful application for leave to appeal against conviction where no fault could be found with the trial judge's conclusion that an arguable abuse of process by the police did not justify a stay of the trial because its fairness was unaffected.
CA (Crim Div) (Potter LJ, Tomlinson J, Roderick Evans J)
3 August 2001
There was no fault in either the judge's decision not to exclude evidence obtained by means of intrusive surveillance devices, pursuant to s.78 Police and Criminal Evidence Act 1984, or in declining to order further disclosure by the prosecution. Furthermore, there was no fault in refusing to stay the proceedings on the grounds of abuse of process. Consequently the appeals were dismissed.
There was not automatically an abuse of process where the police had failed to obtain and retain relevant closed-circuit television footage when serious prejudice against a defendant could not be shown, there was no bad faith on the part of the police and a fair trial had been possible. The adequacy of the evidence necessary before charging a suspect was essentially a matter for the judgment of the police.
Allowing for double jeopardy, sentences in the range of five to seven years' imprisonment would have been considered appropriate sentences after a contested trial for offences of wounding with intent to cause grievous bodily harm where glasses, bottles, or knives had been used in the course of public disturbances. A small measure of distinction was allowed where there had been a private argument which had coincidentally ended in street violence.
HL (Lord Hope of Craighead, Lord Browne-Wilkinson, Lord Clyde, Lord Hutton, Lord Hobhouse of Woodborough)
28 June 2001
A third party who had given evidence in confiscation proceedings on her interest in property forming part of the defendant's realisable assets was not precluded from making proper use of the civil jurisdiction of the High Court to protect her proprietary rights.
In an unsuccessful appeal by way of case stated, the magistrates were correct to stay the criminal proceedings against the respondent as an abuse of process where the police had failed to disclose the terms of an interview on the basis of which the respondent had been offered a caution.
A decision to acquit the defendant of driving without lawful consent was flawed when he was convicted of driving the same motorcycle whilst disqualified and driving without insurance and the owner of the bike had not been challenged on the basis that he had not given consent.
CA (Crim Div) (Henry LJ, Jack J, Sir Harry Ognall)
13 June 2001
There are currently reporting restrictions in force on this case and so a full LAWTEL Case Report is not yet available. This case will reappear on the Daily Update once a full LAWTEL Case Report can be published.
There was no defence of entrapment in English law, and the appeal and application for leave to appeal were dismissed. * Leave to appeal to the House of Lords refused.
Ch D (Ferris J)
3 May 2001
It was not an abuse of process for the Secretary of State for Trade and Industry to commence civil disqualification proceedings under s.4 Company Directors Disqualification Act 1986 after criminal proceedings at which no disqualification order had been sought.
There was clearly vires within s.60(3)(h) Civil Aviation Act 1982 to prohibit drunkenness in an aircraft as in Art.57 Air Navigation (No.2) Order 1995 SI 1995/1970 because drunkenness on an aircraft was one kind of conduct capable of bearing on the safety of the aircraft and the people therein.
If the Crown sought to adduce a witness contrary to an earlier indication, whether that was an abuse of process depended on the nature and circumstances of the indication, the reason for the indication, the explanation for the change and whether any substantial detriment or irremediable prejudice had been caused to the defendant. * Leave to appeal to the House of Lords refused.
PC (Bah) (Lord Bingham of Cornhill, Lord Nicholls, Lord Hoffmann, Lord Hope, Lord Scott)
10 April 2001
The defendant's appeal against his murder conviction was dismissed as the judge had been right to direct the jury that they were entitled to rely on identification evidence alone and as there was no absolute prohibition in law against holding second retrials.
Crown Ct (Manchester) (Judge Owen)
3 April 2001
Evidence acquired illegally or irregularly did not necessarily render it inadmissible. Whilst circumstantial evidence could be powerful evidence, the prospect of the case surviving a submission of no case to answer could be taken into account when considering the effect on the fairness of the proceedings.
Fairness could demand that, even though a witness was not adverse, a defendant was entitled to bring out previous consistent statements to enhance that witness' evidence for the defendant's benefit. Where witnesses had been truly interfered with to the point that they had given evidence against the defence, when without the interference they would have given evidence for the defence, the judge had the power to stop the trial.
CA (Civ Div) (Simon Brown LJ, Robert Walker LJ, Keene LJ)
16 March 2001
Evidence of the dissipation of gifts by donees before the making of a confiscation order under s.83 Criminal Justice Act 1988 had to be called at the time the confiscation order was made and not on an application for a certificate of inadequacy.
Interlocutory or procedural applications in advance of hearings might often prove to be a waste of time since they could be made during the course of the proceedings when the court was in a better position to assess their merits. The High Court had a limited supervisory jurisdiction over the Crown Court, which itself was a court of record.
HL (Lord Slynn of Hadley, Lord Nicholls, Lord Hope, Lord Clyde, Lord Scott)
8 March 2001
When a new charge had been laid in the magistrates' court on the last day of the custody time limit of the original charge, the true question was whether the new charge had been brought solely for the purpose of avoiding a custody time limit and the prosecutor was required to demonstrate why the bringing of the new charge was necessary. Murder and manslaughter were distinct in law and were separate offences attracting separate custody time limits.
An appeal against conviction was dismissed on the basis that a third trial was not an abuse of process. * Leave to appeal to the House of Lords refused.
CA (Crim Div) (Waller LJ, Douglas Brown J, Judge Stephens QC)
20 December 2000
Where a jury was discharged and a retrial ordered there was a clear distinction between discharging the jury for the benefit of the prosecution in order to allow a stronger and different case to be presented and discharging a jury for reasons that were not the prosecution's fault.
CA (Crim Div) (Henry LJ, Poole J, Sir Brian Smedley)
13 December 2000
The defendant's appeal against her conviction of seven counts of indecent assault on a female and one count of gross indecency with a child was dismissed. Even though there were significant gaps in the documentation a fair trial was possible.
DC (Lord Woolf of Barnes LCJ, Hallett J, Rafferty J)
20 November 2000
The very nature of the legal profession's disciplinary procedures amounted to a special circumstance which meant that a second disciplinary hearing on the same facts would not be an abuse of process.
CA (Crim Div) (Kennedy LJ, Alliott J, Bell J)
10 November 2000
The judge had correctly recognised the balance to be struck between the interest of prosecuting criminals with the need to discourage an abuse of process in obtaining the evidence against them.
CA (Crim Div) (Laws LJ, Holman J, Judge David Clarke QC)
10 November 2000
In a successful appeal against conviction for indecent assault, the loss of documentation caused the defendant to suffer particularly grave prejudice by disabling him from investigating the nature or strength of complaints made against him in 1976.
CA (Crim Div) (Lord Woolf of Barnes LCJ, Steel J, Butterfield J)
9 November 2000
Unsuccessful appeal against convictions, on guilty pleas, for assisting the commission outside the United Kingdom of an offence equivalent to one contrary to s.20 Misuse of Drugs Act 1971.
CA (Crim Div) (Roch LJ, Turner J, Pitchford J)
1 November 2000
An appeal against a robbery conviction was adjourned, pending further information, in respect of the defendant's ground that his trial had amounted to extradition and was thus an abuse of process. The appellant had been travelling on an international flight when he was arrested and since leaving the United Kingdom had acquired Irish citizenship.
PC (Jam) (Lord Hoffmann, Lord Cooke of Thorndon, Lord Hutton, Lord Hobhouse, Lord Millett)
30 October 2000
Issues of delay should not be raised for the first time before the Privy Council because the national courts were best placed to decide if delay in a particular case had infringed a defendant's right.
DC (Buxton LJ, Penry-Davey J)
18 October 2000
The prosecution was not precluded from obtaining further evidence and taking further witness statements during the course of a case. In some circumstances it would have failed in its duty if it had not done so.
CA (Crim Div) (Swinton Thomas LJ, Turner J, Morison J)
18 September 2000
The amendment of an indictment on a retrial to include a count not put before the original jury was not unlawful. The question of whether such an amendment amounted to an abuse of process was a question of fact to be decided by considering whether the defendant would suffer an injustice as a result of the amendment.
HL (Lord Hope of Craighead, Lord Mackay of Clashfern, Lord Cooke of Thorndon, Lord Clyde, Lord Hutton)
27 July 2000
Whilst witnesses in criminal trials were immune from actions taken against them for something said or done in the course of their live evidence, or preparation of that evidence, the police were not immune for acts as law enforcers or investigators.
QBD (Laws LJ, Rafferty J)
13 July 2000
As guidance for best practice in the magistrates' court, information relating to prosecution time limits should be laid before the magistrates prior to their decision to start a trial because this was preferable to an adjournment to extend them.
PC (Mau) (Lord Steyn, Lord Hope of Craighead, Sir Patrick Russell, Sir Andrew Leggatt, Blanchard J)
10 July 2000
An appeal against convictions for aggravated embezzlement and forgery in Mauritius was allowed because the inordinate delay both before trial and appeal flagrantly breached the appellant's constitutional rights.
CA (Civ Div) (Simon Brown LJ, Brooke LJ, Hale LJ)
19 May 2000
(1) Policy considerations pointed to criminal proceedings being heard before related libel proceedings. (2) Since under CPR 1.3 both parties were required to help the court to further the overriding objective it might not be appropriate for one party to sit back and allow the other to do nothing. * Leave to appeal to the House of Lords refused.
HL (Lord Slynn of Hadley, Lord Woolf MR, Lord Hope of Craighead, Lord Clyde, Lord Millett)
18 May 2000
A person who handed in a handgun and a completed claim form in accordance with the terms of the Firearms Compensation Scheme as set up under the Firearms (Amendment) Act 1997, acquired a private law right to be compensated, actionable by way of proceedings in the county court.
CA (Civ Div) (Morritt LJ, Waller LJ, Tuckey LJ)
12 May 2000
A person without a proprietorial interest in documents held by the police could not challenge the police for exceeding their powers by an application to strike out an action as an abuse of process, or by injunction. Therefore, the only remedy was by way of judicial review. However, where the police had information that tended to indicate a prima facie case of corruption against a council, the interests of justice pointed in favour of the police being entitled to reveal that information to the council.
QBD (Newman J)
18 April 2000
It was an abuse of process for a defendant subject to a confiscation order to raise issues on an application for a certificate of inadequacy which had been, or could have been, before the court at the confiscation hearing and subsequent appeal.
CA (Crim Div) (Clarke LJ, Kay J, Judge Dyer)
13 April 2000
Appeal against conviction and sentence for the theft of a purse dismissed. Destruction of original CCTV tape did not necessarily mean that the trial was an abuse of process because the police had not acted in bad faith.
DC (Lord Bingham of Cornhill LCJ, Astill J)
5 April 2000
Where a prosecuting authority had been misled as to the identity of the proper defendant, delay in the laying of informations and/or the service of a summons did not constitute an abuse of process.
DC (Kennedy LJ, Butterfield J)
28 March 2000
The magistrates had not been entitled to quash a conviction and allow a new, more serious offence based on the same facts to be put to the applicant, since it amounted to an abuse of process.
CA (Crim Div) (Henry LJ, Hidden J, Astill J)
27 March 2000
A conviction for serious sexual offences against children after complaints that had been delayed for many years was quashed where the police had destroyed evidence of the only contemporaneous complaint and that evidence lay at the heart of the questions of credibility on which the case turned.
DC (Kennedy LJ, Butterfield J)
22 March 2000
Section 75 Road Traffic Act 1988 did not constitute a "specific provision in rules of Community law" for the purposes of reg.3(c) General Product Safety Regulations 1994, and hence the council had properly brought proceedings against the defendant under the Regulations for the supply of a motor car which was so defective as to be dangerous.
PC (Ber) (Lord Steyn)
28 February 2000
Where there was simply an assessment of the strength of the evidence, then a decision on a submission of no case to answer was arrived at on matters of fact and degree and did not involve a question of law alone.
DC (Schiemann LJ, Silber J)
21 February 2000
The justices had been correct to conclude that the reinstatement of a charge of driving with excess alcohol amounted to an abuse of process.
CA (Crim Div) (Lord Bingham of Cornhill, Tucker J, Hallett J)
10 February 2000
In considering whether a prosecution was an abuse of process, the strength of the prosecution case being a relevant consideration, did not undermine the overriding principle of whether the continuance of the proceedings would cause serious prejudice to an appellant by denying him a fair trial. To make a rational assessment of evidence directly relating to a charge it might often be necessary for a jury to receive evidence describing, perhaps in some detail, the context and circumstances in which the offences were said to have been committed, even if that evidence disclosed the commission of other criminal offences. * Leave to appeal to the House of Lords refused.
DC (Simon Brown LJ, Klevan J)
3 February 2000
The applicant's application for a writ of habeas corpus on the basis that he would not receive trial by jury if he was extradited, was to be dismissed not merely on its merits but also as a clear abuse of process.
CA (Crim Div) (Waller LJ, Johnson J, Latham J)
22 November 1999
Leave to appeal was granted in a case where it could have been perceived that every effort was not made to protect the applicant's fundamental rights in the seizure by police of privileged material, and where some of that material had been shown to leading counsel for the prosecution.
QBD (Crown Office List) (Turner J)
20 October 1999
A decision whether or not to bring a prosecution would only rarely be the subject of a successful application for judicial review. There was no arguable case that the decisions made by the Crown Prosecution Service or the Director of Public Prosecutions were other than entirely appropriate and correct and there was no evidence that those decisions were verging on the absurd or perverse.
QBD (Brian Smedley J)
4 December 1998
Whether challenging issues of guilt in civil proceedings was an abuse of process.
DC (Rose LJ, Mitchell J)
27 November 1998
On the facts of the case it could not be said that there had been a manipulation of evidence by the prosecution so as to give rise to an abuse of process.
QBD (Rose LJ, Stuart-White J, Hooper J)
19 February 1997
The justices were wrong to conclude that an allegation of abuse of process made by the defendant should not be heard as a preliminary issue, but should be considered during the substantive trial.
QBD (Auld LJ, Ebsworth J)
13 June 1996
A certificate issued under the Road Traffic Offenders Act 1988 s.6(3) was conclusive evidence of the date on which the prosecutor came into possession of evidence that was, in his opinion, sufficient to warrant the initiation of a prosecution. A court could not go behind the certificate and hear evidence about when decisions about the sufficiency of the evidence could or should have been made.