Page 571 - Magistrates Conference 2019

The court has power to stop a prosecution for abuse of process where the continued
prosecution of the case, in the circumstances, offends the court’s sense of justice and

propriety.

A court that is endowed with a particular jurisdiction has powers necessary to enable it to
perform its functions effectively (inherent powers) within that jurisdiction. Connelly v DPP

1964) 2 All ER 401 at 409, Lord Morris of Borth-y-Gest

This inherent jurisdiction is necessary “to enforce its rules of practice and to suppress any

abuses of its process and to defeat any attempted thwarting of its process”.

Behaviour of the Executive

When does the behaviour of the executive warrant a stay of prosecution?

According to Bennett v Horseferry Road Magistrates’ Court ex p Bennett (1993) 3 All ER

138, HL even if a fair trial is possible, the court is still entitled to stay the trial in that to
continue to prosecute the case in the particular circumstance would be offensive to the court’s

sense of justice.

In this case the defendant was physically abducted from one jurisdiction and brought to
another jurisdiction so that he could be arrested in the other jurisdiction. There was evidence

demonstrating that the prosecuting authorities were willing allies to this plot. The House of
Lords, after reversing the decision of the Divisional Court, held that the rule of law was

superior to the public’s interest of having a crime prosecuted, and in so doing the rule of law

had to be maintained.

The method used to bring the defendant to the jurisdiction was in contravention of

international law, his rights under the law of the state from which he was abducted and a
disregard of extradition procedures available to secure the defendant’s attendance to the state

of the court. Following Bennett, the English Court of Appeal in Beckford (1996) 1 Cr App R

94 stated that it was important for the court to consider whether in the particular
circumstances of each case it would be unfair to try the defendant.

This was applied in R v Mullen (1999) 2 Cr App R 143, but the Court of Appeal stressed that
there may exist cases in which the gravity of the crime is so extensive as compared to the