Access to the courts, abuse of process: Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21

Aspects of the law of abuse of process that are of interest to criminal lawyers are stated in Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21.

The case is of considerable interest to defamation lawyers too. The claim for defamation had been struck out, and this is a successful appeal against that striking out. Lord Reed delivered the judgment of the Court.

“40. The law in relation to abuse of process has developed in the manner characteristic of the common law. Relevant principles have emerged as the courts have considered the circumstances of cases in which the issue has arisen in different contexts. As Lord Diplock indicated in Hunter [1982] AC 529 at p 536, it would be unwise to confine the concept of an abuse of process to fixed categories. Nevertheless, a number of categories have become well established. Examples include the unfair or oppressive treatment of an accused, the rule in Henderson v Henderson (1843) 3 Hare 100 that requires a party to bring its whole case in a single set of proceedings, and the power to stay or dismiss proceedings which are frivolous or vexatious.”

This description of how the common law develops is reminiscent of that given by Oliver Wendell Holmes Jr, noted here on 12 February 2024 at footnote 3.

At [65] Lord Reed continued:

“65. As explained earlier, Lord Diplock’s description of abuse of process is of the misuse of the court’s procedure in a way which would be manifestly unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute among right-thinking people. The focus of the doctrine is on public confidence in the administration of justice rather than on the interests of a party, as Lord Diplock’s description implied (and as has been more fully explained in later cases such as City of Toronto, [2003] 3 SCR 67 cited in para 38 above), but the two are directly connected where the court’s procedure is being misused in a manner which is manifestly unfair.”

This case is about access to the courts and when prevention of that access is an abuse of process. Another context for the law against abuse of process, more familiar in criminal cases, is abuse that may arise from the continuation of proceedings. Common to cases of access and cases of continuation are the concepts of fairness and of prevention of disrepute to the administration of justice.

Advocacy needs focus: Ruhumatally v The State (Mauritius) [2024] UKPC 15

Most advocates know how burdensome - even embarrassing - it is to advance weak submissions.

We used to have a Court of Appeal justice who, after counsel had completed extended submissions on what was apparently thought to have been a strong ground of appeal, would ask (in a darkly humorous sort of way), “Is that your strongest point?” [1]

The Privy Council has had to remind us that it is a duty of counsel to focus on arguable points: Ruhumatally v The State (Mauritius) [2024] UKPC 15, at 55:

“The Board does not wish to be unfairly critical. It of course understands the difficulties sometimes faced by defence advocates who, trying their best to discharge their professional duties towards their lay clients, are anxious not to overlook any point or argument which may assist the defence. It is however an important part of the advocate’s role to exercise judgement and discrimination in focusing on the arguable points, rather than obscuring them by a plethora of poor points and weak submissions. No court is assisted by the multiplication of arguments regardless of their merit. Nor is a defendant assisted by such an approach, which runs the risk of undermining the stronger points in the defendant’s favour. It must, moreover, be clearly understood that a defendant who advances a multitude of arguments, including some which are plainly without merit, cannot thereby create an artificial ground of appeal based upon a complaint that the court below did not give a detailed response to every single point which was raised. In such circumstances, a failure by the court to address particular points in detail is not in itself an indication that the defendant’s case has not been considered and decided in accordance with the law.” [2]

This appeal against conviction for murder was successful (a retrial was ordered).

I have mentioned advocacy here, on 17 April 2015 (reviewing Alan Paterson’s most excellent book Final Judgment - The Last Law Lords and the Supreme Court), and also in noting R v Samaniego on 9 April 2022.

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[1] A judge who embarks on this sort of provocation can hardly complain if counsel replies with the gently sarcastic "Properly understood, yes."

[2] I think the same exercise of judgment and discrimination by counsel should be applied more frequently in decisions about whether to appeal in the first place. Weak appeals tend to cause the law to develop in ways that are not necessarily desirable. Examples may be found in the law of the admissibility of improperly obtained evidence.