Page 574 - Magistrates Conference 2019

Normally the abuse of the process of the court is raised as a preliminary issue; however
nothing prevents it from being raised during the trial. In R v Smolinsky it was stated that the

best time to make an application on the ground of delay may be subsequent to evidence being
led so that the court would be in a better position to decide whether to try the defendant

would be unfair.

Does abuse of Process apply in Magistrates’ Courts?

In Bennett v Horseferry Road Magistrates’ Court et al [1993] 3 All ER 138, HL, the House
of Lords confirmed that Magistrates in exercising both their summary jurisdiction and at

committal proceedings have power to exercise control over their proceedings through an

abuse of process jurisdiction. This power is, however, limited to matters relating to the
fairness of the trial of the particular defendant before them, matters such as delay and unfair

manipulation of the court process. Cases that do not belong in this narrow category would fall
to be considered by the High Court with its wider responsibility for upholding the rule of law.

This case was affirmed in the Belizean decision of The Queen v Calman Hall and Tiffarah

rd
Tench CLAIM No. 292 of 2014 (Delivered February 23 2015) and a similar line of
reasoning was pursued in Dominica in Henry Liu and Feng Huang v The AG of the

Commonwealth of Dominica, The Director of Public Prosecutions and the Comptroller of
Customs where the court opined having reviewed the authorities that it may be said that any

court has an inherent power to prevent the misuse of its procedure. Such misuse may be of
such a nature that it would be unfair to a party seeking justice, or the use of the procedure

may be such as to bring the administration of justice into disrepute.

Does a Magistrate have the inherent power to stay proceedings for an abuse of process?

Originally, there was some debate as to whether a magistrate had the power to stay a
prosecution for abuse of process mainly because magistrates are creatures of statute and had

no inherent power.

Initially, in Mills v Cooper [1967] 2 QB, Parker LJ had opined that every court had a right to
decline to hear proceedings on the ground that they are oppressive, since then, there has been