What is abuse of process?

1. Abuse of process has been defined as "something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respect a regular proceeding" 1.

2. Both the Crown Courts and magistrates' courts have discretion to protect the process of the court from abuse. This includes protecting the accused person from oppression or prejudice. The courts have often emphasised that the power to stay a case for an abuse of process is an exceptional power to be exercised sparingly. A case might form an abuse of process where:

  • the defendant would not receive a fair trial; and/or
  • it would be unfair for the defendant to be tried. 2

3. The traditional view has been that the burden of proof is on the defence to show that the proceedings should be stayed as an abuse of process. The standard of proof is the balance of probabilities3. However, the decision to stay proceedings as an abuse of process is an exercise in judicial assessment based on judgment, rather than on any conclusion as to fact based on evidence, and use of terms such as 'burden of proof' and 'standard of proof' has the potential to mislead4.

4. There is no exhaustive list of situations where a court might halt a case for an abuse of process but the specific categories below are the most common situations where arguments arise.


  1. Hui Chi-Ming v R [1992] 1 A.C. 34. Back to reference of footnote 1
  2. R v Beckford [1996] 1 Cr.App.R. 94. Back to reference of footnote 2
  3. R v Telford Justices ex parte Badhan 2 Q.B. 78. Back to reference of footnote 3
  4. R v S (Crime: Delay in prosecution), The Times, March 29, 2006. Back to reference of footnote 4

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Updated 2021-08-27