Abuse of process Definition

GLOSSARY

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What does Abuse of process mean?

There is an abuse of process where the prosecutor can be said to have manipulated or misused the rules of procedure or where inordinate delay has prejudiced the defendant to a situation where a fair trial is no longer possible.

In abuse of process applications it is the defence that bear the burden of establishing abuse on the balance of probabilities (Telford Justices, ex parte Badhan [1991] 2 QB 78). Where there has been a delay in proceedings, the question is whether the defendant can show that the delay means a fair trial is no longer possible. The procedure to be followed when making an application to stay proceedings on the grounds of abuse of process is contained the Consolidated Criminal Practice Direction, para IV.36 and suggests the usual time to make this application is at the plea and case management hearing.

View the related checklists about Abuse of process

Considerations and next steps for victims of fraud—checklist

Considerations and next steps for victims of fraud—checklist This Checklist is designed to assist individuals and companies who suspect they have been a victim of fraud. It considers the immediate steps they should take to gather and preserve evidence, obtain legal advice, mitigate and reduce risk and obtain emergency or urgent relief (such as freezing orders and insurance cover), including whether it is necessary to report a suspected fraud to the police and how to do so using the Action Fraud service. It also addresses the choice between issuing civil and criminal proceedings for fraud and explains the possibility of running a civil fraud claim in parallel with a criminal prosecution (private or public). This Checklist should be read in conjunction with the Practice Notes: • Starting a civil fraud claim—a practical guide • Civil fraud—heads of claim • Civil fraud—frequently asked questions (FAQ) • Commencing criminal proceedings—applying for the issue of a summons • Fraud—civil claim and private criminal prosecution compared For full guidance on fraud offence under criminal...

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Considerations when dealing with litigants in person—checklist Issue Comment Link to Lexis+® UK guidance/external links To what extent is a represented party required to assist a litigant in person? A legal representative’s paramount duty is to the court and to the administration of justice. Subject to that, the legal representative’s duty is to the client. Practice Note: Litigants in person—general considerations, resources and regulators' guidanceThe Law Society—Litigants in person: guidelines for lawyers, paras 7–9Legal Services Act 2007, s 1(3) A legal representative must not abuse their position by taking unfair advantage of a litigant in person but there is no obligation to help a litigant in person run their case or to take any action on a litigant in person’s behalf. Practice Note: Litigants in person—general considerations, resources and regulators' guidanceSRA Code of Conduct for Solicitors, RELs and RFLs, para 1.2SRA Code of Conduct for Firms, para 1.2The Law Society—Litigants in person: guidelines for lawyers, para 18 When exercising its powers of case management, the court must consider whether...

Abuse of process in criminal proceedings

This Practice Note considers abuse of process in criminal proceedings. It explains the two main limbs of abuse of process and sets out some examples of when an abuse may arise. For detailed guidance on how the below principles apply in the context of private prosecutions, see Practice Note: Abuse of process in private prosecutions.The procedure for making an application to stay proceedings due to abuse of process is governed by Criminal Procedure Rules 2020 (CrimPR 2020), SI 2020/759, r 3.28. For more information, see Practice Note: Abuse of process procedure and Application to stay on the grounds of delay—checklist.Staying a prosecution for abuse of processThe principle of abuse of process is founded on the fact that there should be a fair trial according to the law that is fair to both the defendant and the prosecution. The courts have an overriding duty to promote justice and prevent injustice. From this duty arises an inherent power to stay an indictment (or stop a prosecution in the magistrates' court) if the...

Abuse of process procedure

For an explanation of when abuse of process applications may arise in criminal proceedings, see Practice Note: Abuse of process in criminal proceedings.The application procedure for making an abuse argument is governed by the Criminal Procedure Rules 2020 (CrimPR), SI 2020/759. The burden of proof is on the applicant, on the balance of probabilities, to show that there has been some impropriety in the decision to prosecute or the manner in which the prosecution has been proceeded which means that either a fair trial is no longer possible or it is no longer fair to try the accused. Evidence can be called by both the defence and prosecution. The prosecution is under an obligation to disclose relevant unused material. The judge will make a determination on this evidence. Abuse of process arguments can be raised in the magistrates’ court. In Horseferry Road Magistrates’ Court Ex parte Bennett, the House of Lords ruled that the magistrates’ jurisdiction to protect the court from abuse is restricted to matters affecting the trial of...

Discover our 449 Practice Notes on Abuse of process

Application—reconsideration of rejection of claim

Application—reconsideration of rejection of claim [Insert date] [insert] Employment Tribunal [insert address] To the [insert] Employment Tribunal [Insert case name] Case No: [Insert case number] Application under Rule 13(1) We act for the Claimant in the above matter. We wish to make an application pursuant to Rule 13(1) for a reconsideration of the decision to reject the Claimant’s claim. [The claim was rejected because the Claimant failed to provide [insert details, eg the address of the Second Respondent]. The Claimant is now able to rectify that omission [insert details of missing information]. OR The claim was rejected because the Claimant failed to use the correct form. The Claimant has now rectified that error and the correct form is attached. OR The claim was rejected because the Employment Judge considered that [the claim form could not sensibly be responded to OR jurisdiction was lacking OR the claim was an abuse of process OR [the early conciliation number on the claim form was not the...

Witness statement in support of application for strike out on the basis of abuse of process

Witness statement in support of application for strike out on the basis of abuse of process Filed on behalf of the defendant Witness statement of [insert initial and surname of witness] Number of witness statement: [insert number of witness statement in relation to the witness] Exhibit details: [insert initials and number of each exhibit referred to] Date on which the statement was made: [insert date] [Date of translation: [insert date]] Claim No. [insert claim number]. [IN THE HIGH COURT OF JUSTICE [BUSINESS AND PROPERTY COURTS [OF ENGLAND AND WALES OR IN [insert location] OR [Specify division] [Specify specialist court] [Insert location] DISTRICT REGISTRY THE COUNTY COURT AT [insert location] [BUSINESS AND PROPERTY COURTS LIST between: [insert name] Claimant and [insert name] Defendant _______________________________________ [NUMBER OF WITNESS STATEMENT EG FIRST] witness statement of [insert name of witness] On behalf of the DEFENDANT _______________________________________ I, [Insert full name of witness] of [insert address] will say as follows: 1 I am [set out position of...

Dive into our 3 Precedents related to Abuse of process

Where a defendant is convicted of a summary offence in the magistrates’ court and then appeals to the Crown Court against that conviction, is it permissible to raise ‘abuse of process’ as a ground of appeal, when such an application had not been pursued in the proceedings in the magistrates’ court? How does a stay of proceedings as a remedy for abuse work in the content of an appeal, whereby the conviction will stand unless and until it is quashed?

Where a defendant is convicted of a summary offence in the magistrates’ court and then appeals to the Crown Court against that conviction, is it permissible to raise ‘abuse of process’ as a ground of appeal, when such an application had not been pursued in the proceedings in the magistrates’ court? How does a stay of proceedings as a remedy for abuse work in the content of an appeal, whereby the conviction will stand unless and until it is quashed? If a defendant is convicted of a summary offence after trial in the magistrates’ court they have an automatic right to appeal the sentence or conviction to the Crown Court under section 108 of the Magistrates’ Courts Act 1980. Under the Criminal Procedure Rules 2020, SI 2020/759, r 34.2, the appellant must serve a notice of appeal on the court not more than 15 business days after the date of sentence. The prosecution must the serve a respondent’s notice on the court and the appellant not more than 15 business...

If a case has been allocated to the fast track, is the court bound to award no more than £25,000, or can the trial judge award a greater amount?

If a case has been allocated to the fast track, is the court bound to award no more than £25,000, or can the trial judge award a greater amount? CPR 26.6 states that the fast track is the ‘normal’ track for claims valued between £10,000 and £25,000. However, while the value of a claim is one of the factors to be taken into account when a court allocates a claim (whether it be to the small claims track, fast track or multi-track), it is not the only factor. The court will have regard to all the factors listed at CPR 26.8(1) when deciding whether to allocate a case to the ‘normal’ track. The fact that the court should consider those factors before determining the appropriate track means that it should likewise be entitled to conclude that a case is suitable for the fast track even if the value exceeds £25,000. For further guidance, see Practice Note: Case management—allocation—the different case management tracks. Further, CPR 16.3(7) in any...

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