Abuse of Process and Judicial Stays of Criminal Proceedings

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

4
Police Impropriety at the Investigatory Stage

The issue of police misconduct in the course of criminal investigation is one which has received much attention in recent times. One question which has not generally been addressed, however, is the extent to which a prosecution may be stayed as an abuse of process on account of police impropriety at the investigatory stage. In England, circumvention by the police of proper extradition procedures in securing the presence of the defendant from outside the jurisdiction has been essentially the only kind of malpractice to have raised the issue. There are, of course, certain traditional avenues of redress available to victims of police misconduct in the shape of civil!1 and criminal actions against the police, and complaints procedures.2 Further, where the impropriety has led to the obtaining of evidence and the suspect is subsequently prosecuted, she may in certain circumstances be able to seek the exclusion of the evidence from the trial. It will be argued, however, that a stay of proceedings should also be recognized as an entirely appropriate part of the weaponry available to a court for dealing with pre-trial investigatory misconduct by the police. A discretion to stay proceedings on account of such misconduct will be shown to be an obvious corollary of a discretion to exclude improperly obtained evidence. Accordingly, extensive reference will be made in this chapter to the latter discretion.


THE 'ILLEGAL EXTRADITION' CASES

As a preliminary to discussion of the English cases on illegal extradition,3 it

____________________
1
The most common tort actions are likely to be for assault, false imprisonment, malicious prosecution, trespass to land, and seizure of goods, the elements of which have been adequately discussed by a number of commentators. See in particular D. Feldman, The Law Relating to Entry, Search and Seizure ( 1986), ch. 15; J. Harrison and S. Cragg, Police Misconduct: Legal Remedies ( 2nd edn., 1991), ch. 5; L. Lustgarten, The Governance of Police ( 1986), 132-8.
2
2 PACE, Pt. IX.
3
For further discussion of the English cases, see generally P. O'Higgins, "Unlawful Seizure and Irregular Extradition" ( 1960) 36 British Yearbook of International Law279; J. K. Bentil, "When Extradition Masquerades as Deportation" ( 1983) 127 Solicitors' Journal 604; A. N. Khan , "Trial without Extradition -- Abuse of Court's Process" [ 1986] New Zealand Law Journal

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Abuse of Process and Judicial Stays of Criminal Proceedings
Table of contents

Table of contents

  • Title Page iii
  • General Editor's Introduction vii
  • Preface ix
  • Addendum xi
  • Contents xiii
  • Table of Cases xv
  • Table of Statutory Material xxix
  • 1 - The Abuse of Process Discretion and Criminal Justice 1
  • 2 - Prosecutorial Manipulation or Misuse of Process 16
  • 3 - Delay 47
  • 4 - Police Impropriety at the Investigatory Stage 78
  • 5 - Procedural Issues 119
  • 6 - Entrapment 148
  • 7 - Conclusion: Rationalization and Reform 182
  • Bibliography 188
  • Index 205
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