Abuse of Process

When a judge stops a case because something exceptionally unfair or wrong has happened, for example if a child cannot effectively participate in their trial or the police lose a vital piece of evidence.

Proceedings can be stayed as an abuse of process in the following circumstances:

• An inability to effectively participate: If a defendant is unable to effectively participate in proceedings despite modifications, proceedings should be stayed as an abuse of process to avoid a breach of Article 6 ECHR. However, courts are reluctant to stay proceedings because this does not provide an opportunity to identify whether a child defendant has done the acts alleged. Instead the court may decide to switch to a consideration of whether the child has done the acts alleged.
• Common law protection of trafficking victims for offences committed as a result of being trafficked: Where the statutory defence for such victims under the Modern Slavery Act 2015 s45 fails to apply, the defence may wish to argue that a case against a trafficking victim for offences committed as a result of being trafficked is an abuse of process.1
• Police or prosecution going back on a promise: where a defendant has been induced to believe that they will not be prosecuted, the prosecuted may be stayed for abuse of process. This is likely to occur where:
  1. there has been an unequivocal representation by those with conduct of the investigation or prosecution of a case that the defendant will not be prosecuted; and
  2. the defendant has acted on that representation to his detriment.

Staying proceedings as an abuse of process will occur to prevent a breach of Article 6 European Charter on Human Rights. A court will determine that there is an abuse of process subject to the standard of proof of the balance of probabilities.