Page 572 - Magistrates Conference 2019

prosecution to seek to have the defendant prosecuted for a third time in respect of the same
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offence, to do the same was oppressive and unjust to the defendant. Further, that it might
be contrary to the principle of due process that, the prosecution after failing twice should
continue to try to secure a conviction.

This case also highlighted the issue of delay with respect to abuse of process. The delay in

this case was disturbing and unacceptable, and the assistance “which might have been
reasonably expected from the prosecution and the court to counter the difficulties caused by

the delay had not been forthcoming”.

According to Seetahal, the situations in which a court may hold that the prosecution has

misused or manipulated the process of the court are not fixed. There must be evidence that
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there was actual misuse or manipulation of the court’s process.

ii) Where the prosecution promises not to prosecute

According to R v Townsend and Others, not every breach of a promise to prosecute would
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give rise to an abuse of process. However, if the prosecution or its agents makes an
expressed or implied promise to the defendant not to prosecute him and subsequently reneges
on same, the court may regard this as an abuse of process if the defendant was induced to act

on the promise to his detriment, and the defendant suffers serious prejudice.

In R v Croydon JJ ex p Dean the applicant was a 17 year old who was arrested by the police

during the course of a murder investigation and he made certain admissions that he did
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particular acts intended to impede the apprehension of another person. He was subsequently
released on the basis that he would be a prosecution’s witness and will not be charged. He

complied with the agreement and provided a statement to the police and assisted them
otherwise, however he was later charged with the offence and committed to trial counter to

the promise made by the police. On application to have the proceedings stayed, the court held

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The offence occurred some 9 years previously and during that time, on the first prosecution the defendant
was convicted of the offence but on appeal this conviction was quashed, on the second prosecution the jury
had failed to agree. See also the Jamaican case of Heron v DPP (2000) 61 WIR 319, where the DPP had
discontinued a charge of murder where previously 3 juries had failed to agree, where the prosecution
attempted to press a fourth trial on the defendant based on the same facts, this amounted to oppressive
conduct on the prosecutions part.
th
11 Seetahal, D. “Commonwealth Caribbean Criminal Practice and Procedure”, 4 edition, page 24
12 (1997) 2 Cr App R 540
13 (1993) 3 All ER 129