268
Case Note
[2003] J.A.L.
considered whether there was an abuse of process. But this misses the point
completely. The point is that in the light of the misconduct of the prosecuting
authorities (the executive) there should be no trial at all. The misconduct of
the executive goes to the propriety of there being a prosecution at all for the
relevant offence.10 The question is not whether the proceedings would be a
fair determination of guilt, but whether the proceedings should have been
brought at all. To put it another way, by granting a stay of proceedings, the
court is saying that no valid trial could take place at all. So, the question of
fairness of the trial in determining guilt or otherwise does not arise.
The Court of Appeal seemed concerned with the fairness of the proceedings
when it complained that the fact that the magistrate did not allow the
prosecution or the defence to make an opening address and to call witnesses
meant that ``both sides were cheated''.11 But this shows that the court was
confusing two very distinct and separate issues: the fairness of the proceedings
and a stay of proceedings as an abuse of process. A stay of proceedings to
prevent abuse of process is granted not because the accused was not guilty or
because he could not receive a fair trial but to prevent abuse of the court's
process and thereby protect the integrity of the criminal justice system. A stay
in this context is, as Lord Hoffmann has described it, ``a jurisdiction to prevent
abuse of executive power''.12 So, in the Nya Henry case the question was not
whether a fair trial was possible or not. It may be that a fair trial was possible.
Yet the issue was whether, despite the fact that a fair trial was possible, the
court will be failing in its duty to protect its process from abuse if it did not
intervene to stay the proceedings once it became aware of the misconduct of
the executive. If, as in Nya Henry, the circumstances are such that because of
the misconduct of the Legal Department the prosecution ought not to be
allowed at all, then it is idle for the Court of Appeal to complain that the court
did not give the prosecution the chance to make their complaint and to call
their witnesses. There is therefore no justi®cation in principle for the view of
the Court of Appeal that the court has no power to stay its proceedings to
prevent abuse of process.
Devoid of any sound basis in principle, the decision of the Court of Appeal
is also ill-founded as a matter of authority. There is no binding authority
which compelled the Court of Appeal to this deplorable decision. Indeed, no
authority whatsoever was cited by the Court of Appeal in support of the view
that the court does not have inherent powers to stay proceedings to prevent
abuse of process. No statute was cited, no Cameroonian case was relied upon.
Not even a foreign decision was referred to as supporting that view of the
Court of Appeal. On the contrary, the respondents cited Connelly v. DPP13 as
persuasive authority for the view that ``the court has general and inherent
powers to protect its process from abuse''.14 But the Court of Appeal failed to
address this point and made no comment at all on Connelly's case. It is plain
to see that the decision of the Court of Appeal on the issue of stay leaves much
to be desired.
10 Cf. [2001] 1 WLR 2060, para. 17, per Lord Nicholls of Birkenhead and para. 36, per Lord
Hoffman.
11 P. 3, line 20 of the judgment.
12 R. v. Looseley [2001] 1 WLR 2060, para. 40.
13 [1964] AC 1245, 1354±1355.
14 P. 4, lines 10±12, of the Court of Appeal judgment.