This short phrase 'abuse of process' will be well known to many of our readers. In this article we set out to explain the basics of the abuse of process jurisdiction and the main issues that arise.
The Judge's Role
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 issue of fairness. For example, delay in bringing proceedings, manipulation of the court's procedures, entrapment by police officers, loss of evidence and so on. The prosecution facing an abuse of process application will always argue that the Judge can ensure fairness by, for example, excluding any evidence which is causing dispute, 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.
One of the leading cases in this area is R (Ebrahim) v Feltham Magistrates' Court; Mouat v DPP  2 Cr. App. R, 23, DC. The High Court considered the situation where the two defendants, in two separate cases had asserted that video evidence would have assisted their defences but where 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 of circumstances. 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 of that case the Court found that the defendant had had a fair trial even though the CCTV material was missing. The Court of Appeal said that when considering an abuse application on this basis a Judge must consider what the duty was to preserve any video material. If the court finds that there is no such duty for the material in question to be seized or preserved then there can be no stay of the prosecution. If, alternatively, there is such a duty, and it has been breached, then the court can only consider staying the indictment as an exceptional measure as 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.
Two Categories of Abuse
In considering the development of the case law it is clear that the Higher Courts were reluctant to use the abuse of process jurisdiction to effectively 'punish' the police or prosecution for errors or faults. There seems to be a change more recently with the courts being more willing to stay proceedings to teach a 'lesson' to the Crown where they are at fault. This 'serious fault' limb of the abuse of process jurisdiction highlights the way abuse applications fall into two broad categories; Category 1 cases where the defendant cannot receive a fair trial, and Category 2 cases where it would be unfair for the defendant to be tried: see R v Beckford (1996) 1 Cr App R 94, 101. Thus, if evidence that should have been seized by the police but now cannot be obtained, but would have been helpful to the defence, then that is a 'Category 1' situation and the Judge could, exceptionally, stay the trial on the basis that the defendant could not get a fair trial.
If, however, 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 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  1 AC 42, HL.
R v Grant  2 Cr. App. R 28 is a Category 2 case; there 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 unlawful and, according to the Court, were capable of infecting the proceedings as abusive of the court's process. The Court held that 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.
Of course the use of undercover officers in covert operations quite often leads to accusations of abuse of process on the basis that the undercover officers have entrapped or encouraged an offence to take place. This aspect of abuse deserves a whole article to itself but in very short order the Judge has to look to see if the undercover officer has 'overstepped the mark'; R v Loosely; Att. General's Ref (No 3 of 2000)  1 WLR 2060, HL.
It is the case that where a court is faced with illegal conduct by police or State prosecutors (whether labelled as Category 2 or entrapment or whatever), 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.
The area of disclosure has always been the most contentious area of criminal litigation and most of the great miscarriage of justice cases have turned on failures to disclose by the prosecution. The House of Lords laid down final and conclusive guidance on disclosure and Public Interest Immunity applications in the case R v H & C  2 AC 134 (the authors represented 'H').
However, it is sad fact that today prosecutors are still not getting disclosure right. With the pressure on the prosecution not to give the defence the 'warehouse keys' there has been an over analysis of Defence Statements and a willingness to conclude that no further disclosure is necessary.
In a case called R v O  EWCA Crim 3483 a Crown Court Judge was so exasperated by H.M. Custom's failure to properly respond to the defence's proper applications for disclosure he stayed the case as an abuse of process. The prosecution appealed and the Court of Appeal upheld the decision. The case was a VAT carousel fraud allegation where O was simply asking for business documents held by customs after they had searched his premises; this comprised of around 8,000 pages most of which was not disclosed to the defence, despite the material belonging to the defendant in the first place. Customs had been taking the line that most of the material neither assisted the defence or undermined the prosecution case and was therefore not disclosable and refused to even let the defence have sight of the outer covers of the documents. The defence were adamant that the business documents could show a line of legitimate trading and therefore support the defence's case. The Judge had the option of ruling in favour of the prosecution, ordering disclosure or staying the case as an abuse of process. The Judge was swayed by the obstructive nature of Customs, he did not even make a decision on the merits of the material in question but was pushed in the end to saying that Customs had relied too heavily on the precise rule of law on disclosure, to the extent that they were inflexible and obstructive. His Honour said "if the prosecution approach the case without concession then they can expect none" and with that he threw the case out.
More recently, in a case involving indecent images of children, the defence solicitors wished to view the material and certain directions were given by the court regarding disclosure. The prosecution were not content with the security arrangements for the viewing and storage of this sensitive material and refused to obey the order, the indictment was stayed; R v R (L) (unrep) 28th April 2010, CA.
The abuse of process doctrine also applies to confiscation proceedings, though to a more limited degree. The Court of Appeal has confirmed the Crown Court's jurisdiction to stay confiscation proceedings where, in limited cases, the Crown's application for confiscation amounted to oppression: R v Morgan & Bygrave  EWCA Crim 1323 (20/6/08), para 27. In that case the defendant had substantially repaid the victim and the confiscation proceedings in effect punished him twice over. However, the Court of Appeal has since re-iterated that confiscation proceedings are by design draconian and cases where such proceedings amount to an abuse will be rare indeed; see R v Lowe .
What is required in any abuse application is material upon which such an application can be supported. This usually means early and focussed pressure on disclosure where a possible abuse of process application might be made. The courts have shown a willingness in recent years to stay proceedings in a wider variety of cases than might previously have been the case. That said prosecutors will always meet such applications with the standard line that staying a case is an exceptional measure. In order to persuade a court to stay an indictment a defendant has to have the ammunition to support the application. That means the lawyers have to be alive to the possibilities that might arise in any case and always have the possibility of an abuse argument in the back of their minds.
Jonathan Lennon is a Barrister specialising in fraud and serious complex criminal cases. He is in Chambers at 23 Essex Street in London.
Aziz Rahman is a Solicitor- Advocate and Partner at the leading Criminal Defence firm Rahman Ravelli Solicitors, specialising in Financial Crime and Large Scale Conspiracies/Serious crime. Rahman Ravelli are members of the Specialist Fraud Panel.