The Magistrate's Blog (2005-2012)

This blog has migrated to www.magistratesblog.blogspot.co.uk This blog is anonymous, and Bystander's views are his and his alone. Where his views differ from the letter of the law, he will enforce the letter of the law because that is what he has sworn to do. If you think that you can identify a particular case from one of the posts you are wrong. Enough facts are changed to preserve the truth of the tale but to disguise its exact source.

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Location: Near London, United Kingdom

The blog is written by a retired JP, with over 30 years' experience on the Bench.

Sunday, April 30, 2006

Abuse of Process

Marcin Tustin raises an interesting point in the comments on the asylum thread:-
Can magistrates strike out prosecutions coming before them as an abuse of process, on the grounds that the Crown has put the defendant in an impossible situation?

For a thorough guide to Abuse of Process you should have a look at Andrew Keogh (just use the site's search facility).
I am not a lawyer, but I have heard a few Abuse arguments. These tend to be threatened more often than they are advanced, but justice requires courts to look carefully at what parties are asking them to do.
We accepted an AoP argument only last week, but it is too fresh to blog, so I shall give you an outline of one that we heard a few years ago.
There was an incident at one of the major businesses in our area, in which strong words were exchanged between a worker and his supervisor. Tempers ran high, there was a scuffle, and one or more blows were struck. The protagonists were separated, and later that day a meeting took place, chaired by the shop steward of the union, in his office. The shop steward very properly mediated the dispute, and a form of words was agreed that was intended (or so we found, having heard evidence) to lay the matter to rest. A letter was drafted on Union notepaper, and signed by all present.
Some days later one of the parties went to the police and alleged an assault. The other party was arrested and charged.
The defence argued that the procedure in the Union office was intended to be the end of the matter, and created a legitimate expectation that this would be the case. We were pointed to the case of R v Croydon Justices, and both parties addressed us at length, as did our clerk. We found for the defence, went back in, and announced that we were staying the proceedings as an abuse of process. That was it, legally, and when we debriefed over coffee with the clerk we concluded that the case law had pointed us to a decision that was also fair in all the circumstances.
So Abuse arguments are an important protection to the citizen. They invariably involve a lot of law and they can be challenging to a lay bench, but with a professional performance by the parties' representatives and quality advice from the clerk, we can be happy that we have come to a just conclusion.