Abuse of Process and Judicial Stays of Criminal Proceedings

By Andrew L.-T. Choo | Go to book overview

2
Prosecutorial Manipulation or Misuse of Process
In this chapter it is proposed to examine situations in which, in the words of the Divisional Court in R. v. Derby Crown Court, ex p. Brooks, 'the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality'.1
DOUBLE JEOPARDY
In very crude terms, the rule against double jeopardy seeks to prevent the reprosecution of someone who has already been prosecuted for the same matter. As will have been seen from the brief discussion in the preceding chapter of the decision of the House of Lords in Connelly v. DPP,2 doublejeopardy protection in English law is afforded not only by the pleas in bar (autrefois acquit and autrefois convict), but also by the judicial discretion to stay proceedings as an abuse of process. A further possible protection, the doctrine of issue estoppel, was held by the House of Lords in 1976 to be unavailable in English criminal law.3 It is now proposed to consider the rule against double jeopardy in greater detail, and, in particular, to consider the precise scope of the abuse of process discretion in the double-jeopardy context.
THE RATIONALE
In his monograph on Double Jeopardy, Professor M. L. Friedland regards4 the rationale for double-jeopardy protection as having been summed up in the following passage from the decision of the US Supreme Court in Green v. US:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not
____________________
1
( 1984) 80 Cr. App. R. 164, 168-9.
2
[ 1964] AC 1254.
3
DPP v. Humphrys [ 1977] AC 1.
4
M. L. Friedland, Double Jeopardy ( 1969), 4.

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