Abuse of process: does a defendant have a right of appeal?

Staying a case as an abuse of the court’s process is an inherent power of the criminal courts to stop a prosecution either where it is impossible to hold a fair trial or in circumstances where it is necessary to protect the integrity of the criminal justice system. The basis for making such an application is ordinarily founded in some defect in the investigation process or in abnormal circumstances surrounding a decision to prosecute. There is a huge body of case law detailing decisions on the subject which date back to 1964 and lie outside the scope of this article. Such an application would be ordinarily made prior to the commencement of the criminal trial and, if successful, would bring an end to the prosecution.

In the event that such an application is successful and the trial is stayed then the prosecution would have an automatic right of appeal as a ‘terminating’ ruling (section 58 of the Criminal Justice Act 2003). But what is the position in the event that the application is unsuccessful and a judge orders that the trial must go ahead? Such a decision is not amenable to judicial review as it is a decision “relating to a trial on indictment”. So is the only recourse to the Court of Appeal in the event of conviction or is there an interlocutory route of appeal?  This question was recently the subject of consideration in the case of BHQ v The King [2023] EWCA 1018.

In this case, the trial judge had rejected an application by BHQ to stay the proceedings as an abuse of the court’s process in the context of a Preparatory Hearing held under section 29(1B) of the Criminal Procedure and Investigations Act 1996 ('CPIA'). This section provides that a Preparatory Hearing can (or sometimes must) be held in the following circumstances:-

1. a case of complexity, seriousness or length such that it would be beneficial;
2. Where there is an application for a trial without jury;
3. Where a person is charged with a terrorism offence (or the offence has a terrorist connection).

BHQ sought permission to appeal from the trial judge but this application was refused. Accordingly, the question for the Court of Appeal was whether it had jurisdiction to deal with a ruling on abuse of process as an interlocutory application.

The starting point for discussion is that section 35 of the CPIA 1996 provides a statutory right of appeal against a ruling made in a Preparatory Hearing regarding admissibility, questions of law or joinder/severance. Thus, the question arises as to whether a decision to refuse to stay proceedings as an abuse of process a question of law.

The Crown argued that it was not as the rulings made by the trial judge “principally involved his assessment of factual matters”. The Court of Appeal disagreed. It noted that section 6A(1)(d) of the CPIA 1996 referred to “any point of law (including any point as to the admissibility of evidence or an abuse of process)”. Accordingly, the Court decided that in principle an appeal lies against such a decision. However, the Court went on to say that it does not mean that it would be appropriate for the Court to replicate its judgment for that of the court of first instance. This is because findings of fact should be reserved for the court of first instance save where the judge has made a clear error of law or made a decision which is clearly irrational.

Thus, such a jurisdiction to appeal against a decision to refuse to stay proceedings as an abuse of process does lie to the Court of Appeal. However, such a jurisdiction is reserved for those decisions which are made in the context of a Preparatory Hearing and the Court would only interfere where findings of fact were clearly irrational. By contrast, such a jurisdiction does not exist in the context of rulings made outside of Preparatory Hearings; here a defendant could only appeal in circumstances where has been convicted and the rulings renders the conviction arguably “unsafe”.

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