"STAYIN’ ALIVE?" The Prognosis for Abuse of Process

The Red Lion Lecture series is organised by Red Lion Chambers and hosted in collaboration with The Dickson Poon School of Law, King's College London.

Abstract

"STAYIN’ ALIVE?"
The Prognosis for Abuse of Process
by David Young of Red Lion Chambers and David Corker, Partner at Corker Binning

This lecture will begin with an overview of the health of the main strands of abuse of process identified in the case law, before going on to examine the most recent significant developments in the case law.

What is the current definition of an abuse of process? The speakers will review the evolution of the definition from the Beckford case, through the Maxwell and Warren decisions onto the Crawley and D v A authorities. There will then be a consideration of each of the following issues.

Lost Evidence Cases

While Ebrahim remains the guidelineauthority, is Brooke LJ’s ‘serious fault’ test under fire after Pitchford LJ’s judgment in the 2014 Clay decision. The DPP v Fell and Allen cases will be reviewed and R v E will be considered in relation to failures to follow reasonable lines of enquiry in the context of CPS and DPP guidance on investigations into communication evidence, as the courts seek to avoid repetition of Liam Allan type situations.

Non-Disclosure Abuse

In the courts, non–disclosure abuse arguments are probably the most common category of abuse which is argued.The media have recently reported on cases where there were significant disclosure failings by prosecutors leading to the termination of proceedings, but what are the factors judges should take into account in deciding whether or not non-disclosure amounts to abuse of process? The Salt and Petrie authorities will be examined and there will be consideration of whether, in the light of the R v S (D) and S (T) and R v R ,the defence have obligations to alert courts to prosecution disclosure failings?

Entrapment Abuse

The Court of Appeal’s decision in Norman will be examined, as will R v TL in relation to Agent Provocateurs.

Private Prosecutions

There will be consideration of R (G) v Sand S on the need to distinguish ‘mixedmotives’ from an ‘oblique motive’ and Zinga on the tension between public and private interests.

Situations Akin to Autrefois

Where retrying defendants for a different offence arising out of the same facts maybe permissible: see R(SY) v DPP.

Abuse of Process after Conviction

Tague will be examined and the lecture will conclude with a consideration of the important question, given that a key objective of the doctrine of abuse of process is to protect the integrity of the criminal justice system, whether the doctrine should also apply post-conviction.

Speaker Biographies

David Young (Red Lion Chambers) specializes in defending, and advising upon, serious and complex crime and regulatory cases both in the UK and before the International courts.

Cited in Chambers UK 2018 as “an excellent barrister … who always knows his cases inside out” and in Chambers UK 2019 as “extremely well prepared”and “a very persuasive advocate”, whilst Legal 500 describe him as “the most prepared person in the courtroom”.

David is routinely instructed to lead in cases and is recognised as a leading expert on abuse of process having co-authored the textbook ‘Abuse of Process in Criminal Proceedings’, now in its 4th edition with Bloomsbury Professional publishers. He co-chairs Red Lion Chambers’ International Practice Group.

David Corker (Partner at Corker Binning) co-founded specialist criminal law firm Corker Binning in 2000. Widely recognised as a criminal and regulatory litigator, he specialises in acting for clients implicated in complex criminal or regulatory investigations, many of which are international cases. David has represented clients in almost every large criminal fraud case undertaken by the Serious Fraud Office (SFO).

Ranked in Chambers UK 2019 as a leading individual in the field of Financial Crime, David is described as “incredibly cerebral and a great strategic thinker when needed for complex criminal cases”. Recent high lights for David include advising multiple clients being investigated or prosecuted by the SFO for fraud and bribery offences, including acting in the Tesco, JJB Sports, LIBOR and Olympus cases.