Correct on the date of publication - 13 July 2026
Question:
It is not uncommon for defence lawyers in making representations on behalf of their client to claim that procedures employed by the police amount to an abuse of process. What amounts to an "abuse of process"?
Answer:
The term is sometimes used by defence lawyers, in situations when it is of no application and as a tactical ploy to unsettle investigating officers.
Central to the many decided cases on the issue is the misuse or manipulation of the judicial processes in a manner which adversely affects the fairness of the proceedings. The existence of malice in the prosecution will always be regarded as an abuse of process.
Proving a claimed abuse of process rests on the accused, (Regina v Telford Justices, ex parte Badham (1992)).
The right of a court to stay proceedings on the ground of there being an abuse of process might arise in various circumstances. For example, in Connelly v Director of Public Prosecutions (1964) it was held that it might arise to protect a defendant from oppression or prejudice, and in Attorney General of Trinidad and Tobago v Phillip (1995) it was held that an abuse of process might arise where it would be seriously unjust to prosecute the alleged offender.
In Regina v Childs (2002) it was stated that the Court of Appeal could not fail to be aware that throughout the country it was not uncommon for lawyers to raise arguments of abuse of process. Such arguments, it was stated, often distorted the trial process in cases when it was not appropriate. Discouraging the practice which has emerged in recent years, the Lord Chief Justice ruled that defence lawyers should not advance arguments of abuse of process unless they were really warranted. Developing the point, Lord Woolf said that the trial process was sufficiently complicated, without being aggravated by unnecessary allegations of abuse of process or such submissions being put forward as "mere embroidery" of the defence case.
Discouraging misuse of the law on the topic, in Regina v Childs (2002) the Lord Chief Justice stated that advancing abuse of process argument when it was not warranted, amounted to inappropriate conduct on the part of defence lawyers and courts should take appropriate steps where court time was wasted.
Abuse of process 'claims' are often geared to procedures associated with the particular facts of a case, examples of which can be found in the following:-
R v Bell 2010; DPP v Alexander 2010; R v Del Basso and Goodwin 2010;
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