STAYING POWER OF THE DEFENCE

When I did my first ‘abuse of process’ application I was not a happy man! The reason was that I could hardly find anything out about the subject and my instructions were sparse (to put it mildly). The problem was the lack of proper research into abuse of process proceedings, no detailed statements in our main books, and limited practitioner information which could only be found in Archbold initially. This was not helpful on the Western Circuit where Blackstone was preferred. Life has been made so much easier by this refreshing book on abuse of process by Colin Wells, aided and abetted by Rock Tansey QC and his excellent foreword, and all the 25 Bedford Row colleagues involved.

Wells has written a practical approach which supplements comprehensive coverage of criminal procedure with a practitioner’s link to tactical guidance, skeleton arguments and useful reference materials somewhat lacking elsewhere as I found to my cost some years ago. Rightly, his target audience will comprise criminal lawyers, police station advisers, Crown Prosecutors, HM Customs and Excise officials, criminal litigation students, not forgetting members of the Judiciary who will find the schematic overview very helpful.

THE COURTS

The criminal justice process, at court level has both a general and an inherent power to stay proceedings in order to protect the process of justice from abuse. The aim of the system is to secure fair treatment for defendants, so every day applications are made in the criminal courts, often providing a sound basis for subsequent appeals. What is most attractive about this book is the examination and explanation of the concept of abuse of process and how it operates within the criminal justice system. It is an area which is not really covered at Bar School yet has far-reaching effects for many clients. In keeping with the twenty-first century, it will be seen as the handbook on abuse of process which covers such abuse at the police station, observing breaches of PACE Codes and detailing the work of the police station adviser: it should also be a bible for the new police recruit – take a careful note Hendon.

CONTENTS OF THE BOOK

This is an easy-to-read guide in eleven chapters although I wasn’t quite sure why it needed to be split into two parts. The contents include: an introduction to the common law, EHCR and the Human Rights Act; abuse of process at the police station; forums for raising abuse of process; disclosure; delay; non-availability of evidence; unfair conduct including misconduct, entrapment and double jeopardy; adverse publicity; inability to participate; and the final chapter on tactical and procedural considerations which most barristers will find immensely helpful.

The Appendices cover: the Home Office Circular ‘Cautioning of Adult Offenders’; the Code for Crown Prosecutors; Attorney-General’s Guidelines on Disclosure; extracts from the Criminal Procedure and Investigations Act 1996 plus Codes of Practice under Part 11; and two excellent sections for practitioners on a schematic overview of the disclosure process (which the judiciary should have in front of them) and excellent skeleton arguments which would have helped me out greatly all those years ago.

THE MINI SUMMARIES

Each chapter has a quick mini-summary at the beginning which I find invaluable. Two of the best chapters cover ‘disclosure’ (chapter 4 by Paul Hynes) and ‘unfair conduct’ (chapter 8) which examines double jeopardy in ten short sections. I would expect this topic to expand as the full horror of the changes to the double jeopardy rationale are realised in the course of time. It might also be useful to have some web links for a possible future edition which could easily become ‘Wells on Abuse of Process’. ‘Arlidge, Eady and Smith on Contempt’ look out!

THIS BOOK IS ALSO FOR EDITORS

The best section remains chapter 9 which is neatly entitled ‘adverse publicity’ and should be bedtime reading for some national newspaper editors. Wells starts the way he means to go on by writing: “Media-generated notoriety can prejudice an accused and this may lead to a jury being discharged, an indictment being stayed or a conviction being quashed because of adverse publicity.” Don’t get me wrong, here! The press must never be muzzled but some sense of proportion needs to be reaffirmed, especially with our new media toy, the internet and the ‘out of area’ jurisdiction problems which will become much greater in the next few years.

For special mention is the piece on ‘North American media coverage cases’ and the guarantee contained in the Sixth Amendment ‘trial, by an impartial jury …’ with Lord Coke’s comment that a juror must be as ‘indifferent as he stands unsworne’. It is useful to be reminded of such a point with the current suggestions that the Human Rights Act (well covered here by Wells) might be ‘reinterpreted’ which could mean an end to judicial independence, or even that most serious word for civil servants, ‘reform’. We shall wait and see but meanwhile, this is a great addition to the chambers library for an ever-evolving area of law buffeted by the political norms of the new century. ( )