News

Earlier this year, we were instructed to represent OM who had been accused of drink driving. OM’s case was unusual in that he had been told by police they were dropping the allegation against him only to be charged several weeks later by which time OM had taken a new job that required him to drive.

Not wanting to lose his new job, OM instructed us to find a way to prevent his trial going ahead. We therefore made representations to the prosecutor that they should not proceed with the case and we listed the matter for an abuse of process argument at which we would ask the court to prevent the prosecution proceeding against OM.

The outcome was that the prosecutor agreed to drop the case before the court could force them to do so.

In preparing our representation and legal argument we considered the following cases:

1.Bell v Director of Public Prosecutions [1985] AC 937; [1985] 3 WLR 73; [1985] 2 All ER 585, PC

2.Mills v HM Advocate and Another [2002] UKPC D2

3.Bennett v Horseferry Road Magistrates' Court and another [1993] 3 All ER 138

4.R v Townsend [1997] 2 Cr. App. R. 540

5.R v Beckford [1996] 1 Cr. App. R. 94

6.Regina v Liverpool Stipendiary Magistrate [1998] 1 W.L.R. 531

7.Lund v Thompson [1958] 3 W.L.R. 594; [1959] 1 Q.B. 283

8.Doyle v Leroux [1981] R.T.R. 438

The essence of our argument was that by telling OM that he would not be prosecuted and then not correcting the error for several months, OM had been placed at a disadvantage both in his defence and in his life more generally as he had been deprived of a chance to involve experts at a time until it was too late for an expert to make a meaningful contribution to his case and because he had taken work in expectation that he would not be prosecuted.

The case of Bennett is one of the leading cases on an area of law known as abuse of process. Abuse of process is the mechanism by which the courts prevent themselves being misused by parties and ensure that the law is followed, administering the ultimate penalty against a prosecutor of preventing them access to the courts if their behaviour is so egregious that the courts ought not to entertain it. You can think of Bennett as the foundation upon which much of the modern law on abuses of the court’s process rest.

Bell is a Jamaican case where the prosecution offered no evidence against Mr Bell but then reinstate proceedings that led to him being convicted of a firearms offence. There was a significant delay between the offence and Mr Bell’s final trial of more than five-years, which the House of Lords sitting as the Privy Council court in London found to be so excessive that Mr Bell could no longer receive a fair trial. Although the delay in OM’s case was far shorter, we argued that Bell was relevant because the delay of several months in OM’s case had the same effect of preventing OM obtaining evidence that would support his defence – this is because as a result of police telling him he would not be prosecuted, he had disposed of samples that would otherwise have been tested to show he had not exceeded the drink driving limit as alleged.

In Townsend, the appellant had been treated as a prosecution witness for a long period of time until the Crown performed a volte-face and charged him with fraud. He argued that he should not be prosecuted but the trial judge allowed the matter to proceed. On appeal, the Court of Appeal held that a case could be stopped as an abuse of process even where there was no risk to the fairness of the trial if the Crown had brought proceedings in breach of a promise not to prosecute, although matters must still be considered on a case by case basis. Although Mr Townsend was ultimately successful in having the proceedings against him stopped, he did meet some resistance as the court felt he had not acted to his own detriment as a result of the prosecution’s promise. In OM’s case, he had acted to his detriment because he had left his previous job that did not require him to drive and taken up one that did require him to drive. He had also disposed of his own portion of his blood sample believing it was no longer needed as he would not be prosecuted.

The case of Doyle v Leroux is a difficult one for OM because it involved Mr Doyle being prosecuted in very similar circumstances to OM. Mr Doyle was provided with a portion of his own sample but disposed of it after being told he would not be prosecuted; however, the police had spoken in error intending that he would not be prosecuted for careless driving while leaving the door open to a charge of drink driving but they did not make this clear. The difference between Doyle and OM’s case is that Mr Doyle had his sample for six-weeks before he was told that he would not be prosecuted and he took no steps to have his sample tested in all that time; whereas, OM was informed that he would not be prosecuted when the police released him from custody so there was never a reason for OM to keep his sample let alone have it tested independently.

With all this in mind, we wrote to the Crown asking them to discontinue the proceedings against OM. They responded sometime later confirming that they had written to the court indicating that they would not proceed further against OM. A costs order in OM’s favour was made by the court and OM was able to recover some of their legal costs.