Benjamin was instructed to represent two defendants who had received a decision that an investigation against them would be subject to ‘no further action’ and – in one case – would be subject to a fixed penalty notice for disorder. Notwithstanding that decision, a prosecution against both defendants subsequently commenced in respect of the very same conduct.
Representing both defendants, Benjamin successfully applied to stay the proceedings as an abuse of process on the basis that the prosecution against the defendants amounted to a breach of promise. The promise in question was the clear, unequivocal and fully informed decision made by the investigative officers in the case.
By way of background, police officers attended a dispute between 2 neighbours in April 2020. Following that attendance, the dispute was investigated and the defendants were both interviewed. In August 2020, officers informed the solicitors acting for the defendants that ‘no further action’ would be taken against one defendant and that the matter would be dealt with by way of a penalty notice for disorder (and thereafter also subject to no further action) in respect of the other defendant. The penalty notice was issued in September 2020 and payment was made in respect of it.
In late September 2020, the complainant personally applied for a summons against the defendants, seeking to criminalise precisely the same conduct which had been investigated through to conclusion by the police. The Crown Prosecution Service was invited to take over the case and elected to continue with the prosecution in question.
In the course of a detailed legal argument in March 2022, Benjamin, instructed by Rishi Verma of ABV solicitors, invited the court to stay the prosecution as an abuse of process in breach of the clear and unequivocal promise made to each defendant.
In the course of a carefully reasoned ex-tempore judgment, DDJ Studdert at Willesden Magistrates’ Court acceded to the application made on behalf of both defendants. As a result, the prosecution against both defendants was stayed as an abuse of process.
Benjamin Waidhofer is frequently instructed in cases of considerable factual and legal complexity. He is available to advise and represent individuals remotely and in person. The prosecution of allegations which require consideration of abuse of process principles, particularly as they relate to ‘breach of a promise’, are precisely the type of case that he is sought to advise upon. Any queries about this matter, or any other, ought to be addressed to clerks@foundrychambers.com.