THE judicial discretion to stay criminal proceedings has attracted considerable attention in recent times. In 1964 the House of Lords confirmed the ability of a criminal court to stay proceedings which are an abuse of the process of the court. Since then, the number of reported cases on the abuse of process discretion in criminal litigation has increased dramatically. Ho,wever, these are, in the main, decisions of Queen's Bench Divisional Courts, and most of the decisions are concerned with the single issue of the extent to which proceedings may be stayed on account of police or prosecutorial delay. The fact that very few cases on the abuse of process discretion in criminal litigation reach the Court of Appeal or House of Tords means that there has been relatively little theoretical discussion of the topic by the highest courts in the jurisdiction. Nevertheless, much interest is being shown in the topic by academic commentators, as evidenced by the rapidly growing number of journal articles and commentaries being published. To date, however, nobody in England has produced a full-length monograph on the judicial discretion to stay criminal proceedings as an abuse of process.
The chief concern of this book is to provide answers to two important, and closely related, questions which remain unresolved. First, on precisely what basis, or bases, should the judicial discretion to stay criminal proceedings be exercised? Secondly, what is the scope of the discretion? For example, it is clear that, in England, the discretion may be exercised in 'double-jeopardy' situations and in cases where there has been delay in bringing the defendant to trial. However, it appears that the discretion is not exercisable in England in cases where the defendant has been brought to trial as a result of an 'illegal extradition', or in cases of entrapment. By contrast, in certain other Commonwealth jurisdictions the discretion has been held to be exercisable in all of the above situations. Obviously, widely differing views on the scope of the discretion exist, and we shall see that the reasons for this difference of opinion provide an important clue to an understanding of the topic.
The present work presents a fresh perspective on the abuse of process discretion by setting the discretion against the general backdrop of the law of criminal evidence. In recent times, a number of evidence scholars have demonstrated persuasively that every exclusionary rule and exclusionary discretion in the law of criminal evidence can be explained by reference to the protection of the innocent from wrongful conviction and/or the protection of the moral integrity of the criminal process. I seek to