Introduction

Defence practitioners may encounter cases where their clients were promised by the Crown or by the police that their matter would be dealt with by way of a caution but, despite this, the matter proceeds to trial. This article outlines that in certain circumstances the Crown reneging on this promise may constitute an abuse of process such that the proceedings should be stayed. This is because to proceed would likely offend the court’s sense of justice and propriety and/or will undermine public confidence in the criminal justice system and bring it into disrepute.

Abuse of Process

Where proceedings would amount to an abuse of process, the court may order that those proceedings be stayed.

The burden of proof falls upon the defendant and is decided on the balance of probabilities (R v Telford Justices ex p Badhan (1991) 93 Cr App R 171).

The case of Maxwell [2010] UKSC 48 sets out the two categories of abuse of process:

“It is well established that the court has the power to stay proceedings in two categories of case, namely:

(i)where it will be impossible to give the accused a fair trial, and

(ii) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case”.

In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises.

In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will “offend the court’s sense of justice and propriety” (R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42 ) or will “undermine public confidence in the criminal justice system and bring it into disrepute” ( R v Latif and Shahzad [1996] 1 WLR 104)”.

In the situation where the police or Crown have not honoured their promise to deal with a matter by way of a caution, defence practitioners should argue that this is an abuse of process under the second category.

Failure to Honour a Promise made to the Defendant

There is a plethora of case law that supports the above argument.

In Jones v Whalley [2006] UKHL 4 it was held that proceeding with a private prosecution in circumstances where the defendant had been cautioned and assured that he would not go before the court was an abuse of process. The court noted that that allowing a private prosecution to proceed, despite an assurance that the defendant would not have to go to court, would undermine the cautioning system.

In Abu Hamza [2006] EWCA Crim 2918, the Court of Appeal said that, where a defendant has been told he will not be prosecuted it will be an abuse of process to prosecute him where:

“(i) there has been an unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted and

(ii) the defendant has acted on that representation to his detriment”.

In addition, the defence do not necessarily need to evidence that there was bad faith on part of the police for it to constitute an abuse of process (Croydon Justices, ex parte Dean [1993] QB 769).

In many cases, it will be clear that a defendant was caused detriment by relying on the promise of a caution. For example, because he admitted guilt, answered questions in interview or refused a solicitor because he was put at ease by the promise. However, it is possible that even where the defendant has not been caused significant detriment by his reliance on the promise it can still constitute an abuse of process.

Indeed, in the case of Bloomfield [1997] 1 Cr App R 135 it was held by the court that allowing the prosecution to go ahead amounted to an abuse of process since, whether or not there was prejudice to the accused, it would bring the administration of justice into disrepute if the Crown were permitted to revoke its original decision. It is of note, that in this case, the court remarked that “the statement of the prosecution that they would offer no evidence at the next hearing was not merely a statement made to the defendant or to his legal representative. It was made coram judice, in the presence of the judge. It seems to us that whether or not there was prejudice it would bring the administration of justice into disrepute if the Crown Prosecution Service were able to treat the court as if it were at its beck and call, free to tell it one day that it was not going to prosecute and another day that it was”.

Therefore, whilst the argument for abuse of process will be stronger where detriment can be shown, even where there is not significant detriment the abuse of process argument may be raised on the basis that continuing the prosecution would bring the administration of justice into disrepute. This is especially true where the promise was made in open court.

Where the second category of abuse is raised the court must balance multiple factors when determining whether there is an abuse of process. Each case will stand on its own facts, however in the case of Mansfield v DPP [2021] EWHC2938 (Admin) (see also D3.89, Blackstone’s Criminal Practice 2025) the court noted that the key circumstance telling against a stay was the seriousness of the offence. However, against that were the facts that there was a breach of the promise given by the officer responsible for the charging decision; D’s age (he was 18 at the time); and that D had no previous convictions. Justice May did not regard as relevant the fact that the assurance was given by mistake, or that it was rectified later the same day (the correction did not happen until after D had been interviewed and had made full admissions), nor that D might have sought to have the evidence of the admissions excluded at trial. Justice May concluded that: “Weighing these factors in the balance I conclude that in the particular circumstances of this case the public interest in holding a state official to their promise outweighs the public interest in seeing that an offence, albeit in this case a serious one, is prosecuted”.

Conclusion

Defence practitioners may encounter cases where their clients have been promised by the police or by the Crown that their matter will be dealt with by way of a caution. If that promise is reneged upon, defence practitioners should consider arguing that the proceedings should be stayed as an abuse of process under the second limb of Maxwell.

Author: Aamina Khalid, 5KBW