Abuse of Process and Judicial Stays of Criminal Proceedings

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

7
Conclusion: Rationalization and Reform

The existence of a judicial discretion to stay criminal proceedings which are an abuse of the process of the court is no longer doubted in England. More uncertain, however, is precisely what makes proceedings an abuse of process. Clearly, the term 'abuse of process' is not one which should be taken literally. The circumstances in which stays may be ordered are certainly not confined to situations where the proceedings represent an abuse, in the sense of a misuse, of the legal process.1 Indeed, the courts are not even consistent in their use of the term 'abuse of process'. While it is typically used as a label for proceedings which should be stayed, courts have on occasion used it as a label for particular pre-trial actions of the executive which should lead to a stay.2

I have argued that, in determining whether a particular prosecution is to be stayed, the court should apply what I have called the principle of judicial legitimacy. This principle is premised on the notion that a court is not behaving in a legitimate manner unless it discharges its public duty of protecting the innocent from wrongful conviction and of protecting the moral integrity of the criminal process, while at the same time keeping in mind the public interest in the conviction of the guilty. The idea that protection of the moral integrity of the criminal process should be of fundamental concern to a criminal court is one which has been defended at some length in this work. Criminal justice has a clear public dimension as well as a moral dimension. The conviction of an offender imposes upon her a special moral stigma of community condemnation, and has the effect of warning the public against engaging in illegal actions. It is precisely because of this public dimension of criminal justice that criminal justice has also acquired a moral dimension: the law has recognized that it is inappropriate to expose an offender to the stigmatic effects of conviction and punishment unless the values attached to dignity and freedom have been respected in the course of bringing her to conviction. This philosophy is reflected in the doctrine of mens rea, and in the law's articulation of 'fair-process norms'

____________________
1
See the discussion by D. M. Paciocco, "The Stay of Proceedings as a Remedy in Criminal Cases: Abusing the Abuse of Process Concept" ( 1991) 15 Criminal Law Journal 315.
2
See R. v. Heston-Francois [ 1984] 1 All ER 785.

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