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.
5. It may be an abuse of process if either:
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:
9. In R v Taylor and Taylor 9, the Court of Appeal confirmed the principle10 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