Abuse of Process examines the concept of abuse of process and how it operates within the criminal justice system.  This guide deals with the practicalities of how to make applications to stay proceedings on the basis that an abuse of process has occurred.  It deals with abuse of process relating to the proper procedure of suspects detained at a police station, the disclosure of documents, delay and the preparation of cases generally, and also includes an examination of key judgments from Strasbourg and the Supreme courts of Australia, New Zealand, Canada and the US.

This new edition covers all recent changes to the law including leading judgments such as Mc E v Prison Service of Northern Ireland [2009] UKHL 15, R v Hamza [2007] Crim LR 320, and Spiers v Ruddy [2007] UKPC D2, as well as a new section on the Inability to Participate.

The appendices contain a number of expertly-drafted skeleton arguments as well as key materials including Attorney General’s Guidance on Disclosure, Code for Crown Prosecutors and Code of Practice under Part II of the Criminal Procedure and Investigations Act 1996.

With practical and tactical advice this is essential reading for all criminal solicitors, barristers, judiciary and police.

Colin Wells
Barrister, 25 Bedford Row

Contributors

Paul Hynes QC
Barrister, 25 Bedford Row

Carolyn Robson
Barrister

Kris Gledhill
Barrister

Nev Niyazi
Senior Partner, McKenzies Solicitors

Foreword by Rudi Fortson QC
Preface
Table of Cases
Table of Statutes
Table of Statutory Instruments
Table of European Material
Table of International Material
Table of Codes of Practice

• Introduction
• Abuse of Process at the Police Station
• Forums for Raising Abuse of Process
• Disclosure
• Entrapment
• Delay
• Non-Availability of Evidence
• Unfair Conduct, Abuse of Executive Power
• Adverse Publicity
• Ability to Participate in Criminal Proceedings
• Tactical and Procedural Considerations

Appendix A

• Home Office Circular 016/2008: Simple Cautioning – Adult Offenders 269

Appendix B

• The Code for Crown Prosecutors

Appendix C

• Attorney General’s Guidelines on Disclosure

Appendix D

• Criminal Procedure and Investigations Act 1996 (s 23(1)) Code of
• Practice under Part II

Appendix E

• Schematic overview of the disclosure process

Appendix F

• Skeleton Arguments

Appendix G

• Resources
• Index

“the analysis throughout is tight and regularly infused with original practical scenarios”                          
CRIMINAL LAW REVIEW

“a great addition to the chambers”    
THE BARRISTER

"This updated version is welcome at this time"
INTERNET LAW 

"all recent changes to the law are cited in this new edition...If your professionally involved in this aspect of criminal law, you definitley need the latest edition of this definitive work...with its useful resources section and extensive index, this valuble guide deserves pride of place in your professional library"
Phillip Taylor MBE 'click here for the full review'

"Having been involved in high level investigations for numerous years, I find this book an invaluable tool to have.  It sits at the side of my desk and is a fantastic tool ensuring my cases don't 'fall down' at court due to
errors at the basic investigation level.  It covers the points in a clear concise format with good use of case-law.  It also helps to further my knowledge on the angles where the defence may contest issues."
Detective Constable, West Midlands Police

In DPP v Alexander [2010] EWHC 2266 (Admin) Lord Justice Stanley
Burnton remarked (at para 8), correctly, that ‘the doctrine of abuse of process
is to be narrowly confined. It is only in very special circumstances that a
defendant who would otherwise receive a fair trial is entitled to avoid his trial
by showing that his prosecution is indeed an abuse of the process of the court.’
Similar observations have been made by other judges following the leading
decision of the House of Lords in Connelly v DPP [1964] AC 1254. However,
even a quick glance at the Law Reports will reveal that the courts hear many
applications each year for proceedings to be stayed on the grounds of abuse of
process. This is hardly surprising because, as Lord Morris of Borth-y-Gest
explained in Connolly (at 1301): ‘a court which is endowed with a particular
jurisdiction has powers which are necessary to enable it to act effectively within
such jurisdiction . . . to enforce its rules of practice and to suppress any abuses
of its process and to defeat any attempted thwarting of its process’. The power
to stay proceedings on such grounds is invaluable to ensure that prosecutions
are pursued with regard to Convention rights, and check oppressive conduct.
Although many decisions are illustrative of established principles, a significant
number mark out the boundaries of applications that may, or may not, be
properly made on the grounds of abuse. Thus, in LM and Others [2010] EWCA
Crim 2327, Hughes LJ pointed out (at para 15) that the criminal courts in
England and Wales do not decide whether a person ought to be prosecuted or
not: ‘They decide whether an offence has been committed. They may, however,
also have to decide whether a legal process to which a person is entitled, or to
which he has a legitimate expectation, has been neglected to his disadvantage.’
In Yam v The Queen [2010] EWCA Crim 2072, the Court of Appeal had
occasion to reflect on circumstances in which it would or would not be unfair
to proceed with a prosecution which is inconsistent with a properly arrived at
previous acquittal or conviction, or cases where successive prosecutions of the
same person on the same facts upon charges of ascending gravity would be
unfair (considering Sambasivam v Public Prosecutor, Malaya [1950] AC 1340).
Given the wealth of case-law, and the seemingly infinite circumstances in which
legal practitioners will be required to consider whether an application to stay
proceedings ought to be advanced or not, the practitioner is faced with a
daunting task of identifying the salient principles of law. For busy judges the
task is no less burdensome. Fortunately, that task is considerably eased thanks
to the skill of Colin Wells and a team of other leading criminal law
practitioners (namely, Paul Hynes QC, Carolyn Robson, Kris Gledhill and Nev
Niyazi) who have combined their talents to produce Abuse of Process, a
renowned work that is now in its second edition.
The book will be invaluable to all those who need both theoretical and
practical guidance in relation to this area of the law. As the contents page
makes clear, the work addresses a wide range of relevant topics, including
adverse publicity and a defendant’s inability to participate in the proceedings
(in that regard consider the Law Commission’s Consultation Paper No 197:
‘Unfitness to Plead’).

Rudi Fortson QC
25 Bedford Row, London; Visiting Professor, Queen Mary, University of
London