Benjamin Waidhofer

Benjamin Waidhofer successfully applies to stay proceedings as a ‘breach of promise’

Benjamin Waidhofer represented the first defendant in a multi-handed case of cannabis cultivation on a ‘commercial scale’.  As counsel for the first defendant, he led the defence application to stay the proceedings as an abuse of process on the basis that the prosecution amounted to a ‘breach of a promise’.  The breach of promise in question was the prosecution’s decision to charge the defendants many years after they had received a promise that any prosecution would be “no further actioned pending any new evidence”.  The argument was founded upon the assertion that (1) no ‘new evidence’ had come to light since the promise had been made; and (2) the Court should hold officers of the state to stand by clear, unequivocal and fully informed, promises made by them.

By way of background, what the prosecution described as a ‘cannabis factory’ was discovered by police officers in October 2015.  Within the premises, a single fingerprint was found on a moveable item.  That fingerprint was linked to XY.  In December 2015, XY was arrested and by February 2016 a full extraction of data held on his mobile telephone had been obtained.  XY had, in fact, provided the PIN number for a mobile telephone to assist the police extract the data in question.  The data contained on the handset was downloaded and reviewed.  On 1 August 2016, XY was ‘no further actioned pending further evidence’.

A subsequent review of the handset took place in September 2018 and had concluded by September 2019.  In August 2020, just under 5 years after the offences came to light, the specific allegation which had been subject no further action was made the subject of a prosecution which commenced by postal requisition.

During the course of a full day’s legal argument on 22 December 2020, in the midst of the Covid-19 pandemic, Benjamin Waidhofer, instructed by Fadi Daoud of Lawrence & Co CDS LLP, led the conjoined defence application to stay the prosecution as an abuse of process in light of the promise made to XY.

In the course of a carefully reasoned ex-tempore judgment, HHJ Jeremy Jenkins acceded to the application made on XY’s behalf.  As a result, the prosecution against all defendants were 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 .