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Nicholas de la Poer wins abuse of process argument causing case to be stopped

07/03/2018

On 6th March 2018 Nicholas de la Poer, instructed by Nicola Sharp of Rahman Ravelli, successfully argued that proceedings should be stayed in a case brought by a local authority in Lincolnshire.

The local authority had brought two allegations against Nicholas’s client. The first had been sent for trial in the Crown Court, but was discontinued in October 2017 after Nicholas had pointed out that an essential element of the case could not be proved.

The local authority continued with the second charge which was heard in Lincoln Magistrates’ Court. The allegation related to a failure by Nicholas’s client to respond to a notice issued by the local authority demanding that he provide certain information to them about a piece of land with which he was connected. As the law currently stands, it is no defence to claim that such a notice was not received and all a local authority has to do is prove that it was posted which it was able to do in this case.

Nicholas’s arguments were that there was no proper basis for the local authority to have issued the notice, that the bringing of the proceedings was in breach of the local authority’s own policy guidance and that the continuation of the prosecution following the discontinuance of the Crown Court case was in further breach of the policy.

Responding to the application, the local authority called one of its officers to give evidence to justify the prosecution and the local authority’s behaviour. The officer was cross examined by Nicholas in relation to her conduct of the case.

At the end of a full day’s hearing, the Magistrates found that the notice had been improperly issued, describing it as a “fishing expedition”, a “misuse” of the local authority’s powers and that it “offended the Court’s sense of justice”. The Magistrates’ also found the institution of the prosecution to be “oppressive”, as was its continuation following the conclusion of the Crown Court proceedings.  The stay was imposed “to prevent unfairness” and “in order to protect the integrity of the criminal justice system”.

Authors

Nicholas de la Poer KC

Call 2003 | Silk 2020

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