Reporting and Publicity - Abuse of process at common law

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:

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 principle 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


  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 (2017 edition), paragraphs 4-75. Back to reference of footnote 1
  2. [1964] AC 1245 at pages 1300-1302 per Lord Morris. Back to reference of footnote 2
  3. R v Horseferry Road, Magistrates' Court, ex parte Bennett [1994] 1 AC 42. Back to reference of footnote 3
  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. Back to reference of footnote 4
  5. R v Derby Crown Court ex p. Brooks, 80 Cr. App.R.164, DC. Back to reference of footnote 5
  6. Att.-Gen's Reference (No.1 of 1990) [1992] Q.B. 630, 95. Back to reference of footnote 6
  7. See [1994] 1 AC 42, at page 64, per Lord Griffiths; and pages 69-70, per Lord Oliver of Aylemerton. Back to reference of footnote 7
  8. 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. Back to reference of footnote 8
  9. 98 Cr App R 361 at page 369. Back to reference of footnote 9
Updated 2022-03-22