Category: Law

In criminal law an abuse of process occurs when the criminal justice system is misused in a way that undermines fairness, justice or the integrity of legal proceedings.

It involves actions that exploit the judicial process for improper purposes, such as harassing a defendant, causing unjust delays, or pursuing a case without legitimate grounds.

The concept is enshrined in the court’s inherent jurisdiction to protect its processes, as guided by the Criminal Procedure Rules 2020(CrimPR) and established case law.

Defining Abuse of Process

An abuse of process arises when the prosecution’s conduct or case circumstances render a fair trial impossible or unjust.

CPR Rule 3.28, part of the case management framework, empowers courts to give directions to ensure proceedings are conducted efficiently and fairly, which includes identifying and addressing potential abuses of process.

This rule supports the overriding objective in CPR 1.1 to deal with cases justly, ensuring fairness, efficiency, and compliance with the European Convention on Human Rights and Human Rights Act 1998, particularly Article 6 (right to a fair trial). Examples of abuse of process include:

1. Improper Motives: Prosecuting to harass or intimidate rather than seek justice.
2. Unreasonable Delay: Excessive delays that prejudice the defendant’s defence, such as faded memories or lost evidence.
3. Non-Disclosure: Failing to disclose exculpatory evidence, breaching the Criminal Procedure and Investigations Act 1996.
4. Entrapment: Inducing a defendant to commit a crime they would not otherwise have committed.
5. Bad Faith Prosecutions: Pursuing a case without sufficient evidence or for ulterior motives, like political pressure.

Legal Framework

The Criminal Procedure Rules 2020 (CrimPR) are a comprehensive set of rules governing the practice and procedure of criminal courts in England and Wales. They provide a framework to ensure criminal cases are managed justly, efficiently, and fairly, as mandated by the Courts Act 2003, which empowers the Criminal Procedure Rule Committee to make these rules.

CrimPR 1.1, the overriding objective, requires courts to manage cases to avoid unfairness, inefficiency, or prejudice. Unlike specific statutory provisions in other contexts, criminal abuse of process relies on judicial discretion and precedent.

1.1.—(1) The overriding objective of this procedural code is that criminal cases be dealt with justly.

(2) Dealing with a criminal case justly includes―

(a) acquitting the innocent and convicting the guilty;

(b) treating all participants with politeness and respect;

(c) dealing with the prosecution and the defence fairly;

(d) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;

(e) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;

(f) dealing with the case efficiently and expeditiously;

(g) ensuring that appropriate information is available to the court when bail and sentence are considered; and

(h) dealing with the case in ways that take into account―

(i) the gravity of the offence alleged,

(ii) the complexity of what is in issue,

(iii) the severity of the consequences for the defendant and others affected, and

(iv) the needs of other cases.

The Criminal Procedure Rules 2020 – 1.1 The Overriding Objective

CrimPR 1.2 outlines the duty of all participants in a criminal case to actively assist the court in achieving the overriding objective.

1.2.—(1) Each participant, in the conduct of each case, must―

(a) prepare and conduct the case in accordance with the overriding objective;

(b) comply with these Rules, practice directions and directions made by the court; and

(c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.

(2) Anyone involved in any way with a criminal case is a participant in its conduct for the purposes of this rule.

The Criminal Procedure Rules 2020 – 1.2 The duty of the participants in a criminal case

CrimPR 3.28 allows courts to give directions for the effective management of criminal cases, which includes addressing abuses of process. While the rule itself focuses on case progression, it enables judges to scrutinise proceedings for potential misuse, ensuring they align with the overriding objective of fairness.

3.28.—(1) This rule applies where a defendant wants the Crown Court to stay the case on the grounds that the proceedings are an abuse of the court, or otherwise unfair.

(2) Such a defendant must—

(a) apply in writing—

(i) as soon as practicable after becoming aware of the grounds for doing so,

(ii) at a pre-trial hearing, unless the grounds for the application do not arise until trial, and

(iii) in any event, before the defendant pleads guilty or the jury (if there is one) retires to consider its verdict at trial;

(b) serve the application on—

(i) the court officer, and

(ii) each other party; and

(c) in the application—

(i) explain the grounds on which it is made,

(ii) include, attach or identify all supporting material,

(iii) specify relevant events, dates and propositions of law, and

(iv) identify any witness the applicant wants to call to give evidence in person.

(3) A party who wants to make representations in response to the application must serve the representations on—

(a) the court officer; and

(b) each other party,

not more than 10 business days after service of the application.

The Criminal Procedure Rules 2020 – 3.28 Application to stay case for abuse of process

The landmark case R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42 established that courts can stay or dismiss proceedings deemed abusive. Rule 3.28 supports this by providing a mechanism for courts to intervene when proceedings risk unfairness or oppression.

Unlike specific statutory provisions in other contexts, criminal abuse of process relies on judicial discretion, with Rule 3.28 facilitating proactive case management to prevent or remedy abuses. Courts assess whether continuing a case would undermine public confidence or violate defendants’ rights.

Judicial Response

Courts have broad powers to address abuse of process, including:

• Staying Proceedings: Halting a case if a fair trial is impossible or unjust, as supported by CrimPR Rule 3.28 directions.
• Dismissing Charges: Dropping charges due to prosecutorial misconduct.
• Excluding Evidence: Suppressing improperly obtained evidence under Section 78 of the Police and Criminal Evidence Act 1984.

For instance, in R v Beckford [1996] 1 Cr App R 94, non-disclosure of evidence was deemed an abuse, prompting judicial intervention. Similarly, R v Maxwell [2010] UKSC 48 clarified that remedies depend on the abuse’s severity and impact on fairness.

Importance of Preventing Abuse of Process

Preventing abuse of process, as facilitated by CrimPR Rule 3.28, is vital to maintaining public trust in the criminal justice system. It protects defendants from oppressive treatment, ensures efficient use of court resources, and upholds the integrity of proceedings.

Check out our related articles on Rule of Law, Open Justice, Is the Law Black and White ?, What Does Lady Justice Symbolise ?, Wasted Cost Orders, McKenzie Friend, Can a Judge Direct a Jury to Find a Defendant Not Guilty ?, Law Society, Law Commission, McKenzie Friend Right of Audience, Solicitors, Solicitors Regulation Authority, Barristers, Bar Council of England and Wales, Bar Standards Board, Contra Mundum, R v Sussex Justices, Police Impartiality and the highly questionable Sussex Family Justice Board.

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The Ministry of Injustice is not the Ministry of Justice nor is it affiliated in any way with the justice system, legal profession, police or any other law enforcement agencies.

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You should always seek formal legal advice from a qualified and reputable lawyer (solicitor or barrister).

There are a number of links to Free and Paid For Legal Resources and Legal Organisations on the Free Legal Advice , Legal Aid and Pro Bono pages.

A McKenzie Friend can provide moral support, take notes, help organise case papers, and offer quiet advice on the conduct of the case. They do not have an automatic right to act as an advocate, conduct litigation, or address the court.

Right of Audience

In criminal proceedings, McKenzie Friends generally do not have a right of audience. This means they cannot speak on behalf of the litigant, make oral submissions or examine witnesses unless the court explicitly grants permission.

The court may grant a right of audience in exceptional circumstances, but this is rare. The decision is at the discretion of the presiding magistrate or judge, guided by the interests of justice.

Examples of exceptional circumstances may include:

• The litigant has health issues preventing them from effectively addressing the court.
• The litigant lacks the ability to articulate their case (e.g., due to language barriers or intellectual limitations).
• The complexity of the case requires assistance to ensure a fair hearing.

Criminal vs Family and Civil Procedure

Unlike civil and family proceedings, where guidance like the Practice Guidance: McKenzie Friends (Civil and Family Courts) (2010) applies, criminal proceedings are not explicitly covered by this guidance.

Courts in criminal cases are more cautious about granting rights of audience due to the serious nature of criminal proceedings, which involve public interest and potential penalties like imprisonment.

The Legal Services Act 2007 (sections 12–19 and Schedule 3) makes it a criminal offense for an unqualified person to exercise rights of audience or conduct litigation unless authorised by the court on a case-by-case basis.

Court’s Discretion and Restrictions

A litigant must request permission for a McKenzie Friend to have a right of audience at the start of the hearing. The court will consider factors such as:

• The litigant’s ability to represent themselves.
• The complexity of the legal issues.
• Whether the McKenzie Friend’s involvement would impede the administration of justice.

The court may refuse or revoke permission if the McKenzie Friend disrupts proceedings, acts improperly, or breaches confidentiality.

The court may also require the McKenzie Friend to provide their name, contact details, and a statement confirming they understand their role and duties, including confidentiality.

Court Denying a McKenzie Friend the Right of Audience

A judge is expected to provide reasons when denying a McKenzie friend the right of audience (permission to speak on behalf of a litigant in person).

This aligns with principles of fairness and transparency under Legal Services Act 2007 (c. 29), specifically under sections 208, 210, 211, Schedule 21 paragraph 84(d), and Schedule 23, which gives courts discretion to grant such rights only for “good reason,” typically in exceptional circumstances.

The Practice Guidance on McKenzie Friends (Civil and Family Courts) [2010] 1 WLR 1881 emphasises that decisions should be justified to ensure litigants understand the basis for refusal, allowing for potential appeals by the litigant (not the McKenzie friend).

Practical Considerations

In magistrates’ courts, where proceedings are often faster-paced and less formal than in higher courts, magistrates may be more reluctant to allow a McKenzie Friend to speak, as the litigant is normally expected to represent themselves.

If a McKenzie Friend is granted a right of audience, their role is still limited to specific tasks (e.g., addressing a point of law or cross-examining a witness) rather than acting as a full advocate throughout the hearing.

Fee-charging McKenzie Friends are viewed with caution, and courts may scrutinise their involvement to ensure they are not acting as unqualified legal representatives.

Relevant Guidance and Rules

While the Practice Guidance: McKenzie Friends (Civil and Family Courts) (2010) does not apply to criminal cases, it provides a framework that courts may refer to analogously.

The Criminal Procedure Rules 2010 do not specifically address McKenzie Friends but emphasise the court’s overriding objective to deal with cases justly, which includes ensuring a fair hearing for unrepresented defendants.

Article 6 of the European Convention on Human Rights (incorporated into UK law via the Human Rights Act 1998) supports the right to a fair trial, which may bolster a litigant’s request for assistance from a McKenzie Friend.

Case Law and Precedents

McKenzie v McKenzie [1970] 3 WLR 472 CA: Established the principle that litigants in person have a right to reasonable assistance.

Clarkson v Gilbert [2000] 2 FLR 839: Clarified that the court has unfettered discretion to grant a right of audience, and such decisions should not be limited to “exceptional” circumstances but depend on the case’s specifics.

Re N (A Child) (McKenzie Friend: Rights of Audience) [2008] EWHC 2042 (Fam): Emphasised that granting a right of audience should serve the interests of justice and that courts should consider the practical realities of limited legal aid availability.

Limitations and Risks of McKenzie Friends

McKenzie Friends are not regulated like solicitors or barristers, so there is no guarantee of their competence or accountability. Courts may exclude a McKenzie Friend if they undermine the efficient administration of justice (e.g., by providing improper advice or disrupting proceedings).

Litigants using a McKenzie Friend cannot recover costs for their services from the opposing party, even if successful, as costs are limited to those of a litigant in person.

Explanation of Clarkson v Gilbert

Clarkson v Gilbert [2000] 2 FLR 839 is a significant Court of Appeal case in England and Wales that clarified the principles governing the granting of a right of audience to a non-lawyer, such as a McKenzie Friend or a close relative, under section 27(2)(c) of the Courts and Legal Services Act 1990.

The case is particularly relevant to litigants in person who seek assistance from unqualified individuals to represent them in court proceedings, including in criminal, civil, or family matters.

Factual and Procedural Background

Parties and Context: The claimant, Petruska Clarkson, a psychotherapist, initiated legal proceedings against multiple defendants (also psychotherapists) alleging conspiracy, inducement to breach contract, and libel. These claims arose after her suspension from the Gestalt Psychotherapy Training Institute.

McKenzie Friend: Clarkson’s husband, Vincent Keter, who had a law degree and had completed Bar finals but was not yet called to the Bar, sought to represent her in court. He applied for a right of audience to act as her advocate in the litigation, including at trial and interlocutory hearings.

Initial Order: On 14 May 1999, Morland J granted Keter an ex parte order (without notice to the defendants) allowing him rights of audience under section 27(2)(c) of the Courts and Legal Services Act 1990, citing Clarkson’s ill health (an angina attack and depression) and her lack of financial means to hire legal representation.

Challenge: The defendants applied to set aside Morland J’s order, arguing insufficient evidence (e.g., outdated medical reports) and Keter’s questionable conduct, including misrepresenting himself as an advocate. On 16 December 1999, Eady J set aside the order, prompting Clarkson’s appeal to the Court of Appeal.

Appeal: The Court of Appeal, presided over by Lord Woolf CJ, alongside Waller LJ and Clarke LJ, heard the appeal on 14 June 2000. The key issue was whether Keter, as a close relative and non-lawyer, should be granted a right of audience to represent Clarkson.

Legal Issues

The court addressed the following legal questions:

• Whether a close relative, such as a spouse, should be granted a right of audience under section 27(2)(c) of the Courts and Legal Services Act 1990.
• Whether “exceptional circumstances” are required to grant such rights to an unqualified person, particularly a family member.
• The appropriate exercise of judicial discretion in such cases, balancing the interests of justice with the proper administration of the courts.
• Court’s Reasoning and Decision: The Court of Appeal allowed Clarkson’s appeal, restoring Morland J’s order granting Keter rights of audience.
• Judicial Discretion Under Section 27(2)(c): Section 27(2)(c) of the Courts and Legal Services Act 1990 allows courts to grant a right of audience to a person not otherwise entitled, in relation to specific proceedings, at the court’s discretion.
• The court emphasised that this discretion is unfettered but must be exercised in light of the statutory objective in section 17(1) (to develop legal services while maintaining the proper administration of justice) and section 17(3) (general principles governing professional advocates).
• Distinction Between Professional and Family Advocates: The court distinguished between unqualified individuals offering advocacy services generally (e.g., professional McKenzie Friends) and close relatives assisting a family member.
  
  For professional McKenzie Friends, the court typically requires exceptional circumstances to grant a right of audience, as established in D v S (Rights of Audience) [1997] 1 FLR 724. This is because such individuals may lack professional regulation and accountability. For close relatives, such as a spouse, the test is less stringent.
  
  The court held that the question is whether there is good reason to grant the right of audience, based on the specific circumstances of the case, rather than requiring exceptional circumstances.
• Factors Justifying a Right of Audience: Lord Woolf CJ noted that the overriding objective is to ensure justice is done. With legal aid less readily available, litigants in person may need assistance to present their case effectively.
  
  Relevant factors include the litigant’s health (e.g., Clarkson’s angina and depression) and financial means (e.g., inability to afford legal representation after unsuccessful attempts to secure conditional fee arrangements or pro bono assistance).
  
  In this case, the court found that Clarkson’s health issues and lack of means justified allowing Keter to act as her advocate, as there was a risk she would be deprived of a fair hearing otherwise.
• Critique of the Lower Court: The court held that Eady J erred by applying the “exceptional circumstances” test from D v S to a case involving a close relative.
  
  Clarke LJ clarified that the discretion under section 27(2)(c) is not fettered by a requirement for exceptional circumstances in such cases. Instead, the court must consider whether it is just to permit the advocate, based on the case’s facts.
• Practical Considerations: The court acknowledged that litigants in person have a right to conduct their own litigation but may need assistance due to practical difficulties. A McKenzie Friend’s role (e.g., giving advice or taking notes) does not automatically extend to advocacy unless the court grants permission.
  
  The court noted concerns about Keter’s conduct (e.g., describing himself as an advocate) but found these insufficient to deny the right of audience, given the need to ensure justice for Clarkson.
  
  The court emphasised that the litigant should generally apply in person for such permission at the start of the hearing, allowing the court to assess the need directly.
• Statutory Framework: The court highlighted the tension between allowing a close relative to act as an advocate and the statutory duties under section 27(2A) of the Courts and Legal Services Act 1990, which require advocates to act with independence and comply with professional conduct rules. A family member may struggle to maintain such independence, but this did not preclude granting the right in this case.
• Holding and Implications: The Court of Appeal allowed the appeal, restoring Keter’s right of audience to represent Clarkson in the litigation.
  
  The court found that her ill health and lack of means constituted good reason for granting the right, and the decision was necessary to ensure justice.
  • Implications: The case clarified that the test for granting a right of audience to a close relative is whether there is good reason, not necessarily exceptional circumstances, distinguishing such cases from those involving professional McKenzie Friends.
  
  It recognised the practical reality of reduced legal aid availability, increasing the need for assistance for litigants in person.
  
  The decision reinforced the court’s discretion to balance the interests of justice with the need to maintain proper administration, particularly in cases where the litigant’s ability to represent themselves is impaired.
  
  The case remains a key authority in determining when McKenzie Friends or relatives may be granted rights of audience, especially in civil and family proceedings, and its principles are often applied analogously in criminal proceedings (though courts are more cautious in criminal cases due to their seriousness).

Conclusion

While Clarkson v Gilbert was a civil case, its principles are relevant to magistrates’ and crown courts in criminal proceedings:

Check out our related articles on Magistrate, Chief Magistrate, Dodgy Magistrates, Rule of Law, Open Justice, Is the Law Black and White ?, What Does Lady Justice Symbolise ?, McKenzie Friend, Can a Judge Direct a Jury to Find a Defendant Not Guilty ?,Law Society, Law Commission, Solicitors, Solicitors Regulation Authority, Barristers, Bar Council of England and Wales, Bar Standards Board, Contra Mundum, R v Sussex Justices, Police Impartiality and the highly questionable Sussex Family Justice Board.

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The Ministry of Injustice is not the Ministry of Justice nor is it affiliated in any way with the justice system, legal profession, police or any other law enforcement agencies.

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You should always seek formal legal advice from a qualified and reputable lawyer (solicitor or barrister).

There are a number of links to Free and Paid For Legal Resources and Legal Organisations on the Free Legal Advice , Legal Aid and Pro Bono pages.