Abuse of Process

It has been said that since early times, every court has had the inherent power to stay criminal proceedings on the basis that they are oppressive and constitute an abuse of its process. 1 The court effectively refuses jurisdiction in order to safeguard its own process from abuse. Despite this early recognition, it was not until Connelly v DPP [1964] AC 1254, HL that the discretion to stay proceedings was fully sanctioned with the House of Lords identifying the constituents of the plea of autrefois and the corresponding availability of a claim of abuse of process. Since then the concept has developed rapidly. 2 Although abuse of the process of the court should be raised as a preliminary issue, there is nothing to prevent it being raised during the trial. In fact in R v Smolinski [2004] 2 Cr App R 40, the English Court of Appeal suggested that the best time to make an application on the basis of delay should be after evidence is led so that a judge would be in a better position to assess whether it is unfair to try the defendant. However, a Court of Appeal will question it being raised for the fi rst time on appeal. 3 On an abuse of process application the court, usually the court of trial, is asked to refuse to proceed with the case permanently and, if the application succeeds, it may make such an order, effectively blocking any further criminal proceedings in the matter.