Divisional Court clarifies abuse of process jurisdiction and stays prosecution

The appellant (an 18-year-old of good character) made full admissions in relation to possession of a bladed article in a public place having received an (unintentionally mistaken) assurance that the matter would be dealt with by way of caution, but was subsequently charged. In the lower court, he argued that the case should be stayed as an abuse of process. The CPS relied on the cases of Nembhard v DPP [2009] EWHC 194 (Admin) and Woolls v North Somerset Council [2016] EWHC 1410 (Admin) to support the contention that a breach of promise could only be determined by the High Court. The District Judge took the view that, notwithstanding his reservations about the ratio of those two cases, he was bound by the two decisions of the Divisional Court. Following that ruling, the appellant pleaded guilty. He subsequently appealed by way of case stated.

In the appeal it was common ground that there are essentially two categories of case where a stay is warranted on grounds of abuse of process:  the first (category 1) where it is impossible for the defendant to receive a fair trial; the second (category 2) where all the circumstances taken together offend the court’s sense of propriety and justice and that ‘a breach of promise’ case fell within category 2.

Maya Sikand QC argued that those two cases were wrongly decided and involved a mis-reading of Lord Griffith’s observations in R v Horseferry Road Magistrates’ Court ex parte Bennett [1994] 1 AC 42. In a judgment handed down on 19 October 2021, the Divisional Court agreed, holding that most cases falling within category 2 arising in the magistrates’ court will be suitable to be considered and determined in that jurisdiction, although the High Court had concurrent jurisdiction. There was a limited exception in relation to which the issue of abuse can be determined solely by the High Court, but it would seem to be limited to executive misconduct in relation to extradition, as occurred in Bennett itself. In so far as Nembhard and Woolls suggest that the magistrates’ court has no jurisdiction to grant a stay on category 2 grounds more widely, they are wrong.

The High Court went on to rule that, in the particular circumstances of this case, the public interest in holding a state official to their promise outweighed the public interest in seeing that an offence, albeit a serious one, is prosecuted. There was an abuse of process on category 2 grounds and the conviction was quashed and the prosecution stayed. 

Maya Sikand QC led Lee Sergeant at Garden Court Chambers, instructed by Jessica Gosling of GT Stewart Solicitors.

The judgment can be found here.