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Abuse Of Process Notes

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This is an extract of our Abuse Of Process document, which we sell as part of our Criminal Procedure and Evidence Notes collection written by the top tier of Oxford students.

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CPE

ABUSE OF PROCESS

ABUSE OF PROCESS

• Defendants might seek to have proceedings 'stayed' upon a finding of abuse of process

• 2 forms of AoP outlined by Lord Dyson in Maxwell 11 1)D cannot receive a fair trial:
a) Pre-trial publicity e.g West 96 murderer argued AoP because press coverage painted her v badly (which might affect jury) Held no: the more heinous the crime, the less likely will be stayed for abuse of process b)Failures in disclosure - B v Feltham Magistrate's Court 01 - would have to establish on balance of probabilities that no longer possible to conduct a fair trial where there was a possible duty to disclose c) Inability find intermediary - Cox 12 - tried argue abuse of process because didn't stay proceedings where unable find intermediary but judge tried intervene more in questioning to help - held still fair trial d)Delay/unreasonably long trials

• West 96 would be perverse if get away with murder just by hiding body well for example, v idea that with delay more difficult to find people who remember etc

• AG Ref no.1 90 held stays for delay are exceptional - whether delay is reasonable is relevant

• Gadd 14 (Gary Glitter) - stay granted in 98 but in 2013, more Vs came forward prev ones made more detailed statements - no prejudice thus could still be prosecuted

• Art 6 compatible? 'everyone entitled to fair & pub hearing within a reasonable time…'

• Howarth v UK 01 said reasonableness of time includes considerations as to the complexity of case & D's conduct - UK's approach thus consistent

• AG Ref no.2 01 HL held 'reasonable time' starts when D made aware of proceedings being contemplated against you (i.e when interviewed - not in 70s
(for sex cases)
2)D can't be tried without risking integrity of justice system

• Stark has emphasised the need for moral integrity & legitimacy

• sentences/punishment only legitimate if RoL followed & mustn't condone immoral conduct in investigations for moral integrity a) State misconduct entrapment etc

• Identifiable group of 'non-confession' cases involving possibly improperly obtained evidence falls into the category of 'entrapment' or cases involving an agent provocateur

• Broadly speaking, the appropriate test for entrapment is whether or not police's law enforcement methods part of a bona fide investigation

• note entrapment is not a defence

• R v Horseferry Road JJ ex p Bennett no.1 94 D kidnapped & brought back to
UK from SA - Lord Griffiths said AoP is about upholding RoL & not letting state profit from wrongdoing - here AOP

• Mullen 2000 Zimbabwe illegal extradition - would be an 'affront to pub conscience' to have his trial

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