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Abuse of Process and Judicial Stays of Criminal Proceedings$
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Andrew L-T Choo

Print publication date: 2008

Print ISBN-13: 9780199280834

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199280834.001.0001

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Police Misconduct at the Investigatory Stage

Police Misconduct at the Investigatory Stage

(p.106) 4 Police Misconduct at the Investigatory Stage
Abuse of Process and Judicial Stays of Criminal Proceedings

Andrew L-T Choo

Oxford University Press

This chapter examines to what extent pre-trial police misconduct may lead to a prosecution being stayed as an abuse of process. It shows that it is possible for a stay of proceedings to be ordered on account of pre-trial police misconduct that does not have the potential to affect in any way the ability of the trial to determine the defendant's guilt or innocence accurately. The courts need to determine whether the continuation of the proceedings would compromise the moral integrity of the criminal justice system to an unacceptable degree. This determination needs to take into account factors such as the seriousness of any violation of the defendant's rights; whether the police have acted in bad faith or maliciously, or with improper motives; whether the misconduct was committed in circumstances of urgency, emergency, or necessity; the availability of a direct sanction against the person(s) responsible for the misconduct; and the seriousness of the offence with which the defendant is charged.

Keywords:   criminal proceedings, abuse of process, European Convention on Human rights, stay of proceedings, extradition, R v Grant, Canada

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