Abuse of ProcessFebruary 2006

This short phrase 'abuse of process' actually encompasses a multitude of sins; in this article we concentrate on the main areas of potential abuse of process arguments.

There are many reasons why a Judge might conclude that it would not be proper for the Courts to be used to prosecute a Defendant and they all come back to the question of fairness; for example delay in bringing proceedings, manipulation of the Court's procedures, entrapment, etc etc. The prosecution would argue that the Judge could ensure fairness by, e.g. excluding parts of the evidence, or by warning the jury that the Defendant has been unable to call certain evidence because it has been destroyed - in other words anything except throw the case out before it even starts.

Is there a duty on the Crown?

One of the leading cases in this area is R (Ebrahim) v Feltham Magistrates' Court; Mouat v DPP [2001] 2 Cr. App. R, 23, DC. The High Court considered the situation where the two Defendants had asserted that video evidence would have assisted their defences but that the video material was no longer available. In Mr. Mouat's case he was videoed by an unmarked police car exceeding the speed limit. His defence was that he was trying to get away from a driver who was driving dangerously close behind him and he had no idea it was a police car; i.e. duress. Once he stopped he was shown the video by the officers and had the choice to accept a penalty or go to trial - he elected trial. By the time of the trial the tapes in the police car had been re-used. The High Court quashed Mr. Mouat's conviction. Mr. Ebrahim was not so fortunate. Ebrahim's case concerned un-seized CCTV material. On the facts the Court found that the Defendant had had a fair trial. The Court of Appeal said that when considering an abuse application on this basis it must consider what the duty was to preserve any video material. There are duties under the Attorney-General's Guidelines of 2005, as well as the Codes of Practice to the Police and Criminal Evidence Act 1984; see for example the duty to pursue all reasonable lines of enquiry and to retain material (PACE Code of Practice; paras 3.5 and 5.1). If the Court finds that there was no such duty for the material in question in the instant case then there could be no stay of the prosecution. If, alternatively, there was such a duty, and it had been breached, then the Court can only consider staying the indictment as an exceptional measure because the trial process itself can remedy the problem; e.g. by the Judge to warning the jury about missing evidence, or by him excluding certain other evidence etc. If, however, the police or the prosecution appear to have acted with "bad faith or at the very least some serious fault" then a stay may be more readily granted.

Serious Fault

The 'serious fault' limb of abuse is really part of the development of this type of abuse argument into two broad situations; (i) cases where the Defendant cannot receive a fair trial, and (ii) cases where it would be unfair for the Defendant to be tried: R v Beckford (1996) 1 Cr App R 94, 101.

So, if evidence that should have been seized by the police and now cannot be got, and would have been helpful to the defence, then that is a 'Category 1' situation and the Judge could, exceptionally, stay the trial as the Defendant could not get a fair trial. If the police had the material but maliciously destroyed it then that would be a 'Category 2' case and even though the Defendant could get a fair trial (in the management sense) it would be unfair to try him - in as much as it would offend our sense of justice and bring the administration of the criminal justice system into disrepute to do so, see e.g. R v Mullen [1999] 1 AC 42, HL.

In R v Grant [2005] 2 Cr. App. R 28 the Court of Appeal considered a case where the police eavesdropped on the communications of a suspect and his solicitor. The acts of the police were clearly unlawful and, according to the Court, were capable of infecting the proceedings as abusive of the Court's process. In general terms, the Court held, unlawful acts of such a kind, amounting to a deliberate violation of a suspect's right to legal privilege were such an affront to the integrity of the justice system, and therefore the rule of law, that the prosecution was rendered abusive and ought not to be countenanced by the Court. Where the Court is faced with illegal conduct by police or State prosecutors which is so grave as to threaten to undermine the rule of law itself the Court is likely to regard itself as bound to stop the case.

Need for thorough investigation

All this is easily stated. It is another matter presenting it in Court. What is required is material upon which such an application can be supported. That means early and focussed pressure on disclosure where a possible abuse of process application might be made. Abuse of process applications should never be mounted on a 'have a go basis' - there is nothing more likely than to incur judicial wroth than that approach - however, at the same time, the defence should always be astute to the conduct of an investigation and whether or not the police/prosecution are undertaking their duties - a case of lack of disclosure might not, for example, be enough for an abuse argument but the same authorities that would have been used in that argument might be utilised more effectively in an argument for greater pre-trial disclosure - the supervisory role of the Court is there, after all, to be used to supervise the conduct of the litigation.

Authors

Jonathan Lennon is a Barrister specialising in serious and complex criminal defence case at 23 Essex Street Chambers in London. He is a contributing author to Covert Human Intelligence Sources, (2008 Waterside Press) and has extensive experience in all aspects of the Proceeds of Crime Act 2002.

Aziz Rahman is a Solicitor- Advocate and Partner at the leading Criminal Defence firm Rahman Ravelli Solicitors, specialising in Human Rights, Financial Crime and Large Scale Conspiracies/Serious crime. Rahman Ravelli are members of the Specialist Fraud Panel.

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