In this chapter it is proposed to consider various procedural issues associated with the exercise of the judicial power to stay proceedings as an abuse of process. The fact that the power is a discretionary one does have some significance from the point of view of procedure, and it is therefore necessary at the outset to examine the concept of judicial discretion in some detail. It will be demonstrated that, while the exercise of judicial discretion is indispensable to the attainment of individualized justice, it does have the potential to lead to uncertainty and unpredictability. However, such problems are likely to be minimized if discretion is appropriately confined, structured, and checked. How this might be achieved in relation to the abuse of process discretion will be discussed.
Specific procedural issues associated with the exercise of the abuse of process discretion both in the Crown Court and in the magistrates' courts are also examined in this chapter. In relation to the Crown Court, we examine matters such as the process of the voir dire, pre-trial inquiries, appeals to the Court of Appeal, and whether it is possible to apply to the Divisional Court for judicial review of the exercise by a Crown Court judge of the abuse of process discretion. In relation to magistrates' courts, matters such as the availability of the abuse of process discretion in committal proceedings are discussed.
What exactly does it mean to say that a decision to stay proceedings as an abuse of process is one reached in the exercise of judicial discretion rather than one reached as a matter of law, or, to put it another way, pursuant to a rule or principle of law? In other words, what is it that distinguishes a judicial discretion from a rule or principle of law? Two possible interpretations of the concept of judicial discretion may be suggested.1____________________