Page 560 - Magistrates Conference 2019

ABUSE OF PROCESS

Definition

The Court has an overriding duty to ensure that justice is done and an inherent power arising
from that duty to stay or stop any proceedings where it reasonably believes that should the

prosecution of the case be allowed to continue, it would constitute an abuse of the court’s
process.

In Connelly v DPP 1964] AC 1254, [1964] 2 All ER 401 it was agreed by the House of

Lords that a court possess general powers which can be used to safeguard itself from abuse of
its process and also a defendant from an unfair prosecution. The Privy Council, in Connelly,

described an abuse of process as ‘something so unfair and wrong that the court should not
allow the prosecutor to proceed with what is in all other respects a regular proceeding’. Hui

Chi-Ming v R [1992] 1 A.C. 34, PC

Further, the ultimate aim of this discretionary power is to ensure that a fair trial is had by both
parties. It was stated in R v Sang (1980) AC 402 at page 437: 'the fairness of a trial … is not

all one-sided; it requires that those who are undoubtedly guilty should be convicted as well
as that those about whose guilt there is any reasonable doubt should be acquitted' “.

What are the basic principles?

There are predominantly two (2) instances whereby the court has power to stop a prosecution
for abuse of its process: R v Maxwell 2010) UKSC 48 para 13:

- where the circumstances are such that it will be impossible for the accused to have a fair

trial.

- where it offends the court’s sense of justice and propriety to be asked to try the accused in

the particular circumstances of the case.

The Privy Council in Warren et al v AG of the Bailiwick of Jersey (2011) UKPC emphasized

that these categories are different and requires separate considerations. The former category,

seeks the interest of the defendant, and where the defendant cannot receive a fair trial due to