Benjamin Waidhofer

Benjamin Waidhofer successfully applies to stay a prosecution in relation to the supply of Class A drugs, as a result of prosecution failure to settle upon charges from the outset of proceedings.

Benjamin Waidhofer was instructed by Amirah Ajaz at ABV solicitors to represent a defendant who, whilst serving a substantial custodial sentence in prison, had been found with a mobile telephone and many sheets of spice (a controlled drug of Class ‘B’).  An analysis of the mobile handset was said to reveal a substantial Class A drug dealing operation (turnover in excess of one million pounds per annum) being directed by the defendant whilst he was a serving prisoner.

The defendant was interviewed in relation to the offences of Class B drug supply (i.e. the sheets of spice) and Class A drug dealing (through the phone which had been found).

In January 2023, two years after the defendant had been released from custody and two and half years after the mobile handset and Class B drugs had been found, the defendant was charged with two offences, namely possession of a restricted item in custody (the mobile telephone) and possession of a Controlled Drug of Class B (spice) with intent to supply.

The defendant entered pleas of ‘guilty’ to the two offences against him at the magistrates’ court.  The case was sent to the Crown Court for sentence pursuant to section 14 of the Sentencing Act 2020.

After the first hearing at the Cardiff Crown Court, the prosecution served the defendant with a postal charge and requisition which alleged a single charge of being concerned in the supply of Class A drugs, based upon an analysis of the mobile phone which had been seized whilst the defendant was a serving prisoner.

District Judge Harmes committed that charge from the Cardiff Magistrates’ Court to the Cardiff Crown Court and directed that credit for a guilty plea be preserved until the Crown Court adjudicated upon the question of ‘abuse’ in relation to the charge.

In the course of a carefully reasoned ex-tempore judgment which followed a detailed application to stay the latter allegation (upon the basis that the latter allegation only commenced after the defendant’s earlier pleas of ‘guilty’) as an abuse of process, HHJ Wynn-Morgan recognised that a ‘catalogue of errors’ had taken place which the prosecution sought to ‘put right’ by the further charge.

The learned Judge highlighted the importance of getting matters right first time, particularly in relation to charging decisions which had taken substantial time to settle upon.

HHJ Wynn-Morgan ruled that, given the chronology, it would be an abuse of process to allow the prosecution to proceed with the further charge.  The learned Judge ruled that notwithstanding the seriousness of the further charge, a stay of that allegation was necessary to protect the integrity of the criminal justice system.

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 ‘prosecution conduct’, 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 .