Abuse of process has been defined as something so unfair and wrong with the prosecution that the court should not allow a prosecutor to proceed with what is, in all other respects, a perfectly supportable case (Hui Chi-Ming v R  1 A.C. 34, PC). 'Unfair and wrong' is for the court to determine on the individual facts of each case. The concept of a fair trial involves fairness to the prosecution and to the public as well as to the defendant: DPP v Meakin  EWHC 1067.
On 20th July 1982, bombs exploded
at Hyde Park and Regents Park, London - (Wikipedia). 11 military personnel were killed: four soldiers of the Blues and Royals and seven bandsmen of the Royal Green Jackets. Seven of the Blues and Royals' horses also died in the attack. One seriously injured horse, Sefton, survived and was subsequently featured on a number of television programmes and was awarded "Horse of the Year". Sefton's rider also survived but suffered from post traumatic stress disorder and in 2012 committed suicide after killing his two children.
In 1987, Gilbert "Danny" McNamee was convicted of making the Hyde Park bomb and jailed for 25 years. He served 12 years before being released under the terms of the Good Friday Agreement; his conviction was later quashed.
In 2013, John Downey was charged with four counts of murder in relation to the Hyde Park attack. The trial judge - Sweeney J - has now ruled that there would be an abuse of process and the indictment against Downey has been stayed - The Guardian 25th February 2014.
The detailed reasons of Sweeney J are available - PDF 57 pages. Four reasons were put forward as to why the prosecution was an abuse of process.
(1) that a fair trials was no longer possible over 30 years after the event given the significant witnesses were now dead and key exhibits irretrievably lost.
(2) It would be unfair to try Downey in the light of expectations created by governmental statements that a prosecution would not be pursued in respect of those (such as Downey) who would otherwise qualify for early release under the terms of the Good Friday Agreement.
(3) It would be unfair for Downey to be tried because on 20th July 2007 [25 years to the day after the bombing and under the administrative scheme in relation to so-called "on the runs" (OTRs) which was intended to advance the peace process in Norther Ireland] he was given a clear written assurance on behalf of the Secretary of State for Northern Ireland and the Attorney General that there was no outstanding direction for prosecution in Northern Ireland in relation to him.
The letter also stated that the Police, and that the Police Service of Northern Ireland (PSNI) were not aware of any interest in him by any other Police Force in the UK. The reality was that PSNI knew that Downey was wanted by the Metropolitan Police.
(4) Even if grounds (1) to (3) did not in themselves justify a stay, their cumulative effect did so.
The Crown offered its reasons as to why the prosecution ought to have been permitted to proceed. First, long delay did not prevent a fair trial. Secondly, the political process and past governmental commitment not to prosecute should not impact upon an independent prosecutorial decision. Thirdly, the July 2007 to Downey was the product of an error as opposed to any act of bad faith. It was not an assurance that he would not, or never would would be, prosecuted on the mainland for any terrorist offences committed prior to the Good Friday Agreement. Fourthly, there was no basis in law for ruling that the delay coupled with the letter of July 2007 had engendered a false sense of secutity in Downey such that the court should hold it an abuse of process to allow the prosecution to proceed.
Reasons (1), (2) and (4) were unsuccessful Sweeney J upheld (3) and stayed the indictment. Sweeney J set out the relevant law of abuse of process at paragraphs 143 to 150.
At para 175 Sweeney J considered the competing public interests involved. Those accused of serious crime should be tried. In this case, that was outweighed by the need to ensure that executive misconduct did not undermine public confidence in the criminal justice system and also the public interest in holding State officials to promises they have made. This was one of those rare cases in which it would offend the court's sense of justice and propriety to be asked to try the defendant.
Links / Comment:
Daily Mail 25th February - Betrayal of Hyde Park victims ...
Independent 26th February - Hyde Park bombing: Northern Ireland Police Federation appalled at grubby secret deal .... points out that, at the time of the Good Friday Agreement, there were 211 unsolved murders of officers in what was the Royal Ulster Constabulary and that their families are now unlikely to see justice done.
Telegraph 26th February - Victims of IRA bomb cheated out of justice by a monumental blunder - this article states that the Crown has said that there will be no appeal against the decision of Sweeney J. " ... announcing that the Crown would not appeal, prosecutor Brian Altman QC acknowledged the pain of the victims’ families “who must live with the consequences of it daily, and with the memories of that dreadful event”.
Good Friday Agreement -
|Memorial to Bandsmen at Regent's Park|