Common law/domestic law
1. Where there has been substantial delay in bringing a prosecution, the court may stay (halt) the case as an abuse of process. A stay of proceedings on the ground of unjustifiable delay will only be granted by the courts in exceptional circumstances. It will be very rare for a case to be stayed where there is no fault on the part of the prosecution.
2. To establish abuse of process based on delay, the defendant will need to prove that, because of the delay, s/he will suffer such serious prejudice that a fair trial cannot be held1. Even where delay was unjustifiable, a permanent stay should be the exception rather than the rule2.
3. In considering whether there is likely to be prejudice, the court should consider:
- the power of the judge/magistrates to regulate whether evidence is admissible;
- the fact that during the trial, factual issues relating to delay can be placed before the jury as part of the evidence;
- the power of the judge to direct the jury about delay before they consider their verdict.
European Convention on Human Rights (ECHR)
4. Article 6(1) of the ECHR gives the defendant the right to be tried 'within a reasonable time'. This right flows from the time that a person is formally charged or served with a summons (see para 6 below). In HSE prosecutions, this will usually be the time when the summons is served.
5. When a court considers whether there has been a breach of the right to a trial within a reasonable time, they will consider:
- the length of the delay;
- the reason for the delay;
- whether the right was asserted (i.e. whether there were complaints about the delay);
- whether there has been any prejudice to the defendant3.
6. The House of Lords has held that4:
- A breach of the reasonable time requirement in Article 6(1) should not automatically lead to a stay of proceedings. The right of a criminal defendant is to a hearing and there is no support in the Convention or case law for the contention that there should be no hearing of a criminal charge once a reasonable time has passed;
- A stay would never be an appropriate remedy if any lesser remedy, such as a declaration, a reduction in sentence or an award of damages, would adequately satisfy the defendant’s Convention right;
- It would not be appropriate to stay the proceedings unless there could no longer be a fair trial or it was for any compelling reason unfair to try the defendant;
- For the purposes of Article 6, the relevant period would begin when a defendant was formally charged or served with a summons. An interview (or arrest) would not normally mark the beginning of the period.
- Attorney General's Reference (No 1 of 1990)  Q.B. 630.
- R v S (Crime: Delay in prosecution), The Times, 29 March 2006. The Court of Appeal, in considering Attorney General’s Reference (No 1 of 1990) in detail, held that, if after considering all the factors mentioned, a judge’s assessment was that a fair trial would be possible, then a stay should not be granted. In R v Abu Hamza  EWCA Crim 2918, it was held that, unless the consequences of delay that occurred in initiating criminal proceedings were such that there could no longer be a fair hearing or it would otherwise be unfair to try a defendant, it would not be appropriate to stay or dismiss the proceedings. The fact that adverse publicity might have risked prejudicing a fair trial was no reason for not proceeding to trial if the judge considered that, with his assistance, it should be possible to have a fair trial.
- Flowers v The Queen  1 WLR 2396, but see R (on the application of Stone) v Clerk to the Justices Plymouth Magistrates’ Court, unreported, 11 October 2007, DC, where a committal order was made in respect of a convicted drug trafficker’s failure to comply with a confiscation order that had been made 13 years previously; the overall delay in this case meant that the drug trafficker’s rights under article 6(1) of the ECHR had been breached.
- Attorney-General’s Reference (No 2 of 2001)  UKHL 68; Spiers (Procurator Fiscal) v Ruddy & HM Advocate  UKPC D2.