The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when examining a question about that person’s detention. It is axiomatic ‘that a person charged with having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he should not be tried for it at all.’ Proceedings may be stayed in the exercise of the judge’s discretion not only where a fair trial is impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. It was proper to order a stay of a prosecution (Lord Oliver of Aylmerton dissenting).
Lord Lowry: ‘the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court’s conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court’s process has been abused.’
and ‘It would, I submit, be generally conceded that for the Crown to go back on a promise of immunity given to an accomplice who is willing to give evidence against his confederates would be unacceptable to the proposed court of trial, although the trial itself could be fairly conducted.’
Lord Griffiths said: ‘Your Lordships are now invited to extend the concept of abuse of process a stage further. In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition proceedings. If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law which embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.
My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law. The great growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and Parliament alike that it is the function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended. So also should it be in the field of criminal law and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it. . .
The courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution.’
Lord Griffiths, Lord Oliver of Aylmerton, Lord Lowry
Independent 01-Jul-1993, Times 25-Jun-1993, [1993] 3 WLR 90, [1994] 1 AC 42, [1993] UKHL 10, (1993) 3 All ER 138, (1994) 98 Cr App R 114
Bailii
England and Wales
Citing:
Cited – Mills v Cooper QBD 1967
Two sets of criminal proceedings were brought against the defendant for offences under section 127 of the Highways Act 1959 namely that of being a gypsy and, without lawful excuse, camping on a highway. The first proceedings were brought in respect . .
Cited – Regina v Brentford Justices Ex parte Wong QBD 1981
The defendant had been involved in a traffic accident. Very shortly before the expiry of the six month time limit, the prosecutor issued a careless driving summons apparently in order to preserve the possibility of a prosecution without yet having . .
Cited – Regina v Watford Justices, Ex parte Outrim (1982) 1982
Magistrates have a jurisdiction to hear abuse of process arguments. . .
Cited by:
Cited – Regina (Kashamu) v Governor of Brixton Prison and Another; Regina (Kashamu) v Bow Street Magistrates’ Court; Regina (Makhlulif and Another) v Bow Street Magistrates’ Court QBD 23-Nov-2001
Where a magistrates’ court heard an application for extradition, it was within its proper ambit to assess the lawfulness of the detention of the suspect in the light of the Human Rights Convention, but not to stray onto issues which were only for . .
Cited – Walker v The Governor of HM Prison Nottingham Admn 25-Jan-2002
The claimant sought a writ of habeas corpus. The Commissioners of Customs and Excise had requested the arrest of the claimant in the US pending extradition. It was not realised that the offence alleged was not sufficient to found extradition. The . .
Cited – Johannes Cornelius Vervuren v Her Majesty’s Advocate HCJ 12-Apr-2002
The applicant had been extradited from Portugal. He said that the procedures in Portugal had infringed his human rights in that he had not had proper representation nor translation, and that his consent to extradition had been under protest as to . .
Cited – Attorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .
Cited – Regina v Manchester Stipendiary City Magistrates ex parte Pal Tagger Admn 29-Nov-1996
The defendant appealed his conviction for illegal entry. He complained that after first being proceeded against for illegal working, it was an abuse now to pursue this prosecution.
Held: No abuse had been established, only delay. . .
Cited – Regina (on the Application of Mullen) v The Secretary of State for the Home Department CA 20-Dec-2002
The applicant had been unlawfully taken from Zimbabwe, then tried and sentenced in the UK. His conviction was set aside as unsafe, but he had been refused damages. He appealed.
Held: There was no substantial criticism of the trial itself, but . .
Cited – Mullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – Regina v Latif; Regina v Shahzad HL 23-Jan-1996
The defendant had been lured into the UK by the unlawful acts of customs officers. He claimed abuse of process.
Held: The category of cases in which the abuse of process principles can be applied is not closed. A customs officer committing an . .
Cited – Regina v J HL 14-Oct-2004
The defendant was to have been accused of having unlawful sexual intercourse with a girl under 16. Proceedings could not be brought, because the allegation was more than a year old, and he was instead accused of indecent assault, but on the same . .
Cited – Regina v Mullen CACD 4-Feb-1999
British authorities, in disregard of available extradition procedures, initiated and procured the unlawful deportation of the appellant from Zimbabwe to England. The appellant was charged and tried for conspiracy to cause explosions likely to . .
Cited – Hounsham and Others, Regina v CACD 26-May-2005
The defendants appealed convictions for having staged motor accidents to support false insurance claims. They said that the insurance companies had contributed to the costs of the investigation by the police.
Held: It might have been most . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Director of Public Prosecutions v Wood; Director of Public Prosecutions v McGillicuddy Admn 19-Jan-2006
Each defendant sought disclosure of materials concerning the intoximeter instruments, having been charged with driving with excess alcohol. The defendants said that the meters were inaccurate and that the manufacturers were in effect part of the . .
Cited – Director of Public Prosecutions v Wood; Director of Public Prosecutions v McGillicuddy Admn 19-Jan-2006
Each defendant sought disclosure of materials concerning the intoximeter instruments, having been charged with driving with excess alcohol. The defendants said that the meters were inaccurate and that the manufacturers were in effect part of the . .
Cited – Department for Work and Pensions v Courts Admn 3-May-2006
The appellant challenged stays of proceedings by the respondent magistrates court for abuse of process infringing the defendants’ human right to a fair trial. The magistrates had fund that being faced with dismissal of a summary case through delay, . .
Cited – Jones v Whalley HL 26-Jul-2006
The appellant had assaulted the respondent. He had accepted a caution for the offence, but the claimant had then pursued a private prosecution. He now appealed refusal of a stay, saying it was an abuse of process.
Held: The defendant’s appeal . .
Cited – Regina v Belmarsh Magistrates’ Court ex parte Fiona Watts Admn 8-Feb-1999
The defendant sought to have dismissed as an abuse of proces charges against her that as an officer of Customs and Excise prosecuting the now private prosecutor, she had committed various offences.
Held: The magistrate was vested with . .
Cited – Levey, Regina v CACD 27-Jul-2006
The defendant appealed against his conviction of manslaughter of his baby son. He said that a family court had previously investigated the same allegations and had explicitly found itself unable to say which of himself and the mother were . .
Cited – Regina v Abu Hamza CACD 28-Nov-2006
The defendant had faced trial on terrorist charges. He claimed that delay and the very substantial adverse publicity had made his fair trial impossible, and that it was not an offence for a foreign national to solicit murders to be carried out . .
Cited – Crown Prosecution Service v P; Director of Public Prosecutions v P Admn 27-Apr-2007
The prosecutor appealed a grant of a stay of a prosecution of the 13 year old defendant as an abuse of process. Reports had indicated that he was unfit to plead. The prosecution contended that, if the court thought P ought not to face trial by . .
Cited – Mote v Regina CACD 21-Dec-2007
The defendant appealed his convictions for offences relating to the claiming of benefits, saying that he was immune from prosecution as a member of the European Parliament, and that the verdicts were inconsistent with acquittals on other charges. . .
Cited – Panday v Virgil PC 9-Apr-2008
(Trinidad and Tobago) The defendant’s appeal against conviction had succeeded on the basis of apparent bias in the tribunal. He now appealed the order remitting the case to be reheard, saying that a fair trial was no longer possible.
Held: The . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Cited – CPS (Sussex) v Mattu CACD 17-Jul-2009
The defendant faced a charge of conspiracy to import Class A drugs. Detailed discussions had taken place between the prosecutor and defendant under which he had pleaded guity on a agreed basis of fact. The prosecutor then proceeded with a furthe . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
Cited – Hauschildt, Regina (On the Application of) v Highbury Corner Magistrates’ Court Admn 13-Dec-2007
The detainee sough a writ of habeas corpus. He had returned to England to surrender to bail against a representation that he would be bailed. After interview he had been remanded in custody. The officer said that he had known his representation was . .
Cited – Abdul and Others v Director of Public Prosecutions Admn 16-Feb-2011
The defendants appealed against convictions for using threatening, abusive or insulting words or behaviour or disorderly behaviour . . within the hearing or sight of a person likely to be caused harassment, alarm or distress. He had attended a . .
Cited – Maxwell, Regina v SC 20-Jul-2011
The defendant had had his conviction for murder set aside after a finding of gross prosecutorial misconduct by the police. The Court was now asked as to the propriety of the order for a retrial. The police involved in the case had misled the CPS, . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Applied – Mullen and Another, Regina v CACD 5-May-2000
Mr Mullen, had been deported from Zimbabwe to the United Kingdom as a result of a plan concocted between the United Kingdom and Zimbabwean authorities which involved breaching Zimbabwean extradition law.
Held: The subsequent conviction was set . .
Lists of cited by and citing cases may be incomplete.
Judicial Review, Extradition, Criminal Practice
Leading Case
Updated: 11 November 2021; Ref: scu.86889
