Abuse of Process and Judicial Stays of Criminal Proceedings

In this chapter it is proposed to examine the second major area in relation to which the discretion to stay criminal proceedings as an abuse of process has been acknowledged as available in England. This is the area of pre-trial police or prosecutorial delay.¹ The problem of delay in criminal procedure is one which in recent times has been a matter of continuing concern, and which has therefore had a lot of airing, both in England and in other jurisdictions. Broadly, delay may occur in either of two parts of the pre-trial stage: before charge, or between the date of charge and the date of trial. The past decade or so has seen a plethora of decisions in which English courts have acknowledged that criminal proceedings may be stayed on account of pre-trial delay. Indeed, the abuse of process discretion probably remains the chief mechanism protecting English defendants from the consequences of undue delay, at least so far as prosecutions for serious offences are concerned.

The scheme of this chapter is as follows. First, brief mention will be made of a number of mechanisms, apart from the abuse of process discretion, which have been developed for the purpose of dealing with the problem of pre-trial delay: specific statutory provisions (including clause 29 of the Magna Carta), article 6(1) of the European Convention on Human Rights, and paragraph 8 (ii) of the Code for Crown Prosecutors. We then proceed to the main focus of the chapter: the extent to which proceedings may be stayed on account of pre-trial delay. The English position will be examined, and this will be followed by a discussion of the way in which the issue has been addressed in the United States and Canada. In the light of this discussion, some recommendations for reform of the English position will then be made.

There do exist, in England, statutory provisions which are of relevance to the issue of delay in criminal proceedings. As has been seen in the preceding

-47-