Abuse of Process: Time for Change?

AuthorKerri Montgomery
Dundee Student Law Review, Vol. II, No. 2
Abuse of Process: Time for Change?
Kerri Montgomery
The doctrine of abuse of process is used by the courts to control criminal
proceedings. It is the discretionary power of the court to stay proceedings
which it deems would be an abuse of the process of the English criminal
courts. The doctrine has been developed to establish circumstances where it
would be appropriate for the court to stay proceedings on the grounds of an
abuse of court proceedings. Nevertheless, the current rules on what constitutes
an abuse of process have not been specifically defined, and are in some ways
unclear.1 Generally these circumstances are limited to the most serious of
issues and are narrowly interpreted. For example, a prosecution of several
counts of sexual assaults that occurred 1530 years after the alleged acts did
not result in a stay of proceedings on the grounds of abuse of process. It was
held that a fair trial could still go ahead despite the lengthy delay.2
The generally narrow interpretation of the doctrine has been brought into
question by the decision of the Court of Appeal (Criminal Division) in R v
Antoine,3 a decision which focussed on the issue of a second trial for a more
serious charge based on the same set of facts. The controversy surrounding the
decision in this case was that what amounted to a mistake on the part of the
Crown Prosecution Service (CPS) was held to be a reasonable cause for a
second trial. There was no abuse of process in allowing the defendant to be
tried on the second charges.
This article critically evaluates the decision in Antoine with reference to
decisions of other Commonwealth jurisdictions and with regards to the effect
1 Currently the rules on criminal procedure are defined in the Criminal Procedure Rules 2014.
The Rules make reference to abuse of process in that they allow for an application to stay a
case for an abuse of process, but do not make reference to the relevant ground s for such an
2 R v Telford Justices, ex p Badhan [1991] 2 QB 78 (QB D).

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