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Delayed Prosecution for Childhood Sexual Abuse$
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Penney Lewis

Print publication date: 2006

Print ISBN-13: 9780199282289

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199282289.001.0001

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Abuse of Process

Abuse of Process

(p.49) 3 Abuse of Process
Delayed Prosecution for Childhood Sexual Abuse

Penney Lewis

Oxford University Press

Courts in most common law jurisdictions have the power to stay criminal proceedings on the ground that the trial would be an abuse of the court's process. A stay on the grounds of abuse of process is generally available at common law in two main categories of cases. First, and most frequently, when it would not be possible for the defendant to obtain a fair trial, for example, in cases involving substantial pre-trial delay. Second, when the integrity of the justice system would be threatened by the trial, or such a trial would be oppressive, or it would be unfair for the defendant to be tried. Provided that the focus of the abuse of process remedy is not diverted onto the justifiability of the delay, it is effective in responding to arguments that the fairness of the trial has been compromised by delay, or that a prosecution would be oppressive.

Keywords:   fair trial, pre-trial delay, oppressive prosecution, stay of proceedings, integrity

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