Chapter

Abuse of Process

Penney Lewis

in Delayed Prosecution for Childhood Sexual Abuse

Published in print April 2006 | ISBN: 9780199282289
Published online January 2009 | e-ISBN: 9780191705441 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199282289.003.0003

Series: Oxford Monographs on Criminal Law and Justice

 						Abuse of Process

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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

Chapter.  16457 words. 

Subjects: Criminal Law

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