Reporting and Publicity - Abuse of process at common law

• When does abuse of process apply?
• What is "abuse of process"?

When does abuse of process apply?

1. There will, of course, be circumstances where HSE wishes to publish information in the period before criminal proceedings are commenced (see Publicity). While proceedings must normally be ’active’ for the law governing contempt of court to apply, there may nevertheless be a real risk that publication of information could have an adverse impact on an ongoing investigation or any subsequent criminal trial. Where there has been adverse publicity, it will be open to the defendant to argue that there has been an abuse of process and that s/he cannot receive a fair trial.

2. The House of Lords has confirmed ¹ that the court has a general and inherent power to prevent abuse of process. This power includes a power to safeguard an accused person from oppression or prejudice².

3. Justices have the power to stay proceedings for abuse of process, but such power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused, such as delay or unfair manipulation of court procedures³.

4. The justices can also stay proceedings to safeguard an accused person from oppression or prejudice⁴.

What is "abuse of process"?

5. It may be an abuse of process if either:

• the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality⁵; or
• the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution⁶.

6. In R v Horseferry Road Magistrates’ Court, ex P.Bennett⁷, the court made it clear that abuse of process is not limited to situations where the defendant could not receive a fair trial.

7. The courts have acknowledged in a number of cases⁸ that a conviction may have to be quashed or a trial stayed on the grounds of an abuse of process because of adverse pre-trial publicity. Such adverse pre-trial publicity may also give rise to a breach of the right to a fair trial under Article 6(1) of the European Convention on Human Rights (see ECHR considerations).

8. Each case will be decided on its own facts. There are a number of options open to the court, for example:

• Where a court concludes that the pre-trial publicity was such that the defendant could not receive a fair trial, it will stay proceedings or quash the conviction. The court may or may not decide to order a re-trial;
• The court may conclude that there has not been an abuse of process and that any prejudice that may have been caused can be remedied by the trial process itself (such as by giving appropriate directions to the jury);
• The court may decide that the risk of prejudice is slight due to time elapsed since the prejudicial publicity occurred or because the hearing is taking place before a professional judge in the absence of a jury (as will be the case with all appeal hearings) who are unlikely to be influenced by what they have seen on television or read in the newspaper.

9. In R v Taylor and Taylor ¹⁰, the Court of Appeal confirmed the principle¹¹ that if the media coverage at trial has created a substantial risk of prejudice against the defendants, the convictions should be regarded as unsafe and quashed. Furthermore, the prejudice may be such that a retrial is not possible because a fair trial could not take place.

10. Further guidance can be found in the Abuse of Process section

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Footnotes

1. Connelly v DPP [1964] AC 1245 and see DPP v Humphreys [1977] AC 1 which re-confirmed the existence of this power. See generally the comprehensive treatment of this topic in Archbold (2010 edition), paragraphs 4-47 to 4-75.
2. [1964] AC 1245 at pages 1300-1302 per Lord Morris.
3. R v Horseferry Road, Magistrates’ Court, ex parte Bennett [1994] 1 AC 42. 
4. Attorney General of Trinidad and Tobago v Phillip [1998] 1 AC 396 PC and see Hui Chi-Ming v The Queen [1992] 1 AC 34 PC
5. R v Derby Crown Court ex p. Brooks, 80 Cr. App.R.164, DC
6. Att.-Gen’s Reference (No.1 of 1990) [1992] Q.B. 630, 95
7. See [1994] 1 AC 42, at page 64, per Lord Griffiths; and pages 69-70, per Lord Oliver of Aylemerton
8. R v Malik, 52 Cr App. R 140 CA; R v Savundra, 52 Cr App  637 CA.  See also R v Wood [1966] 1 Cr App R 207. CA .  In R v McCann and others, 92 CR App R 239, CA and R v Taylor and Taylor, 98 CR App R 361 this was one of the grounds for quashing the conviction. See also Archbold 2010, paragraphs 4-72a and 7-84.
9. Krause v Switzerland No 7986/77, 13 DR 73 (1978); Minelli v Switzerland A62 (1983) 5 EHRR 554; Allenet de Ribemont v France A 308 (1995) 20 EHRR 557; Montgomery v H.M. Advocate; Coulter v H.M. Advocate [2003] 1 A.C. 641.
10. 98 Cr App R 361 at page 369.
11. As enunciated in R v McCann (1991) 93 Cr App R 239.