Abuse of Process in Criminal Litigation
| Author | Rosemary Pattenden |
| DOI | 10.1177/002201838905300307 |
| Published date | 01 August 1989 |
| Date | 01 August 1989 |
| Subject Matter | Article |
ABUSE
OF
PROCESS
IN
CRIMINAL
LITIGATION
Rosemary Pattenden*
INTRODUCflON
"Abuse of Process" is a legal concept with a long history. Since
early times, every court has had inherently in its power the right
to see that its processes are not undermined by proceedings without
reasonable grounds.' There was, however, no outlet of any
significance for this doctrine in criminal procedure until in Connelly
v. D.P.P.2Lord Devlin suggested that if the prosecution failed
without good cause to take advantage of the provisions for joining
in the same indictment offences arising out of the same facts or
offences which were part of a series of offences of the same or a
similar character,3this was an abuse of process which would justify
a stay of proceedings. Since Connelly, the discretion to stay
proceedings has developed rapidly. Reservations expressed by
Viscount Dilhorne in Humphrys v. D.P.P.4about its application
to magistrates' courts have been swept aside." In his summation
of this area of procedural law in R. v. Derby Crown Court, ex p.
Brooks." Sir Roger Ormrod recognised that the discretion has
come to be applied in two quite separate fields:
"The
power to stop a prosecution arises only when it is an
abuse of process of the court.
It
may be an abuse of process
if either (a) the prosecution have manipulated or misused the
process of the court so as to deprive the defendant of a
protection provided by the law or to take unfair advantage of
•Lecturer in Law, University of East Anglia.
1Metropolitan Bank Ltd v. Pooley (1885) 10 App.Cas. 210, 220-221.
2[1964]2 All
E.R.
401,446 (H.L.).
3See now Indictment Rules 1971r. 9.
4(1976) 63 Cr.App.R. 95, 106(H.L.). See too R. v. Horsham JJ, ex p. Reeves
(1982) 75 Cr.App.R. 236, 341 (D.C.); R. v. CardiffJJ, ex p. Kitts D.C. March 26,
1987.
5See R. v. Derby C.C, ex p. Brooks (1984)85 Cr.App.R. 164,168 (D.C.).
6(1984) 80 Cr.App.R. 164, 168-169 (D.C.).
341
Journal
of
Criminal
Law
atechnicality, or (b) on the balance of probability the
defendant has been or will be, prejudiced in the preparation
or conduct of his defence by delay on the part of the
prosecution which is unjustifiable: for example, not due to
the complexity of the inquiry and preparation of the prosecu-
tion case, or to the action of the defendant or his co-accused,
or to genuine difficulty in effecting service."
Efforts to extend the discretion still further to redress unfairness
by the police in the investigative stages and to stop litigation of
which the court disapproves have, however, so far foundered.
WHEN IS
THE
CONTINUATION OF A PROSECUTION AN ABUSE
OF PROCESS?7
Unfairness During the Investigative Stage
Police actions which have generated applications to stay proceed-
ings have fallen into three categories: (a) unlawful extradition; (b)
obtaining evidence by questionable means; and (c) destruction of
evidence.
Initially, the Divisional Court was receptive to applications of
the first kind. Applying the decision of the New Zealand Court of
Appeal in R. v.
Hartleyi
proceedings were stopped in R. v.
Bow
Street Magistrates, ex p. Mackeson.' because the police had used
unlawful tactics to secure the accused's removal from Zimbabwe-
Rhodesia to the United Kingdom. In R. v. Guildford Magistrates,
ex p. Healy, 10 the Divisional Court would have done the same had
it been shown that the accused's deportation from the United
States to the United Kingdom had been brought about by irregular
action on the part of the British police. Then, in a complete volte
face, the Divisional Court held in R. v. Plymouth Justices, ex p.
7See also R. Pattenden, "The Power of the Courts to Stay a Criminal
Prosecution" [1985) Crim.L.R. 175.
8[1978)2 N.Z.L.R. 199 (C.A.).
9(1981) 75 Cr.App.R. 24 (D.C.).
10 [1983)1 W.L.R. 108
(D.c.).
342
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