EWJ FEB 59 2025 web - Flipbook - Page 68
Staying Fitness to Practise
Proceedings for Abuse of Process:
A Turning tide?
In this article, Christian Carr, Partner at Spencer West LLP and Tim Grey, Barrister at Old
Square Chambers, explore the concept of stays for abuse of process and their application in
professional disciplinary cases.
Recent reports suggest that those sitting on professional disciplinary panels are becoming emboldened to take the exceptional course of “staying” cases (in simple terms, barring it from proceeding any further) following errors and delays by regulators in bringing the matter to a
hearing.
Origins of the concept
The concept of staying proceedings for abuse of
process is by no means a new one and most frequently
arises in the criminal courts. Although the notion of
abuse of process does exist in civil proceedings, it is
less a doctrine and more a nebulous concept concerned with procedural failings in bringing cases
properly before the Court. The pre-occupation of the
doctrine of abuse of process with the abuse of power
in an imbalanced relationship is far more relevant in
criminal proceedings, and to a degree professional
disciplinary proceedings, where the State or the regulator have resources and powers that give them an
advantage over the defendant, Registrant or Member.
Serious delay in bringing the accused to trial causing
them significant prejudice is one reason for defendants applying for stays, though the underlying reasons may take many different forms and each case
turns on its own facts. The courts have emphasised
that delay merely due to the complexity of a case, and
without fault on either side, should never be the foundation for a stay. The powers of the courts to regulate
what evidence is used at a trial, to make adjustments
to the trial process itself, to counterbalance the difficulties faced by the accused, and to give directions to
juries (as finders of fact and the arbiters of guilt) will all
weigh in the balance when deciding whether it is
appropriate to impose a stay.
The Supreme Court most recently considered the
subject in R v Maxwell [2010] UKSC 48 case in which
the Court confirmed that stays are available in two categories of case. First, where the circumstances mean it
is impossible for the accused to be tried fairly (also
known as the insurmountable prejudice ground); and
second, where it offends the court’s sense of ‘justice
and propriety’ to be asked to try the accused in the
particular circumstances of the case. Lord Dyson gave
the leading judgment in a majority decision. He drew
on well-established criminal precedents in explaining
that stays granted in the second category have their
foundation in the judiciary’s repugnance in permitting its process to be used in the face of the executive’s
misuse of state power by its agents. In granting stays
on this basis, the court must balance competing interests in protecting the integrity of the justice system, including whether proceeding to a trial will undermine
public confidence in the criminal justice system or
bring it into disrepute. As to the first category of case,
where no fair trial is possible, no balancing exercise of
these interests is required and a stay should be
imposed.
The right of a defendant to a fair trial under Article 6
of the European Convention on Human Rights, enshrined in domestic law via the Human Rights Act,
adds to the legal infrastructure underpinning the basis
for stays.
Stays in professional disciplinary cases
The foundation of the ‘justice and propriety’ ground
for a stay is, as explained above, based largely in the
need to ensure the proper conduct of the State in the
exercise of its powers and duties. It follows that the
greater the degree of power in the hands of the ‘prosecutor’ the more scope there is to found a stay. The
powers of statutory and non-statutory regulators are,
necessarily, not as profound as the powers of the State,
whether acting through the Police, a prosecuting authority or a Government department. The likelihood
of a stay on the ‘justice and propriety’ ground in nonState regulatory proceedings is therefore extremely
slim. It was that rationale that underpinned the judgment of Goldring J in the case of Council for the Regulation of Health Care Professionals v General Medical
Council and Saluja. The case involved allegations of entrapment by a journalist of a doctor. The evidence
produced by the journalist that was the basis for the
GMC’s case was likely to have been inadmissible in
criminal proceedings. At first instance the case was
stayed for abuse of process, on the basis the evidence
Cases have emphasised that stays for abuse of process
must be exceptional and must not become a matter of
routine.
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