When Should an Application to Stay Proceedings as an
Abuse of Process be Heard?
The appropriate time for such an application to be made is before the trial commences, unless a defendant some can point to a specific reason to defer an application until after the close of the prosecution case,:
Where there are genuine grounds for an application to stay on the basis that a fair trial will be impossible because of incurable prejudice to the defendant caused by delay, that application is, by its nature, preliminary to rather than part of the trial process. The contention is that the trial should not take place at all.
If it is to be made, notice should be given before the trial begins. In the end of course the time when it should be dealt with by argument and ruling is a matter for the trial judge. Although we can envisage cases in which, for example, the application is based on prejudice resulting from the absence of long-lost evidence, such as institutional records, and where the evaluation of the significance of the absence of such evidence may best be undertaken at the close of the Crown's case,
in general the question whether the trial should proceed at all should take place before evidence is called unless there is a specific reason for deferment, an application to stay on abuse of process grounds is preliminary to the trial, and ought normally to be dealt with at the outset.
Although the Court in F identified an example of abuse which might be suitable for deferment until the close of the prosecution's case (lost records), it noted that the danger of so deferring is that the trial judge confuses an application for a stay with a half-time submission, thereby running the risk, if the application for a stay is allowed, of appearing to have usurped the function of the jury by making assessments about the evidence called that are properly and usually for the jury to make.
Provided that the principles in Galbraith and Attorney General's Reference No 2 of 2001 are understood, the only other authorities to which reference should be made are Stephen Paul S and F. As to Stephen Paul S, the principles to be applied by a judge on an application for a stay for abuse on the ground of delay are these: Per the Lord Chief Justice at paragraph 41 of F
R -v- Galbraith  1 W.L.R. 1039.
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