Andrew L.-T. Choo

Abuse of process and judicial stays of criminal proceedings

Table of Cases Table of Statutory Material 1. The Abuse of Process Doctrine and Criminal Justice 2. Prosecutorial Manipulation or Misuse of Process 3. Delay, Lost or Destroyed Evidence, and Adverse Publicity 4. Police Misconduct at the Investigatory Stage 5. Entrapment 6. Procedural Issues 7. Conclusion Bibliography Index

England and Wales: Fair Trial Analysis and the Presumed Admissibility of Physical Evidence

In England and Wales the Police and Criminal Evidence Act of 1984 (PACE) introduced two exclusionary rules which have taken their place in a judicial landscape, where, traditionally, all relevant and credible evidence was always admissible, regardless of the legality of its acquisition. One rule excludes statements or confessions obtained through “oppression” which goes beyond a rule which previously excluded confessions obtained as a result of torture, which nonetheless could be excluded under exercise of the judge’s traditional discretion to exclude evidence which lacks credibility. But the most important rule, is that of Article 78 PACE, which calls upon the judge to balance all of the circumstances of the case, the seriousness of the violation in the gathering of evidence, the seriousness of the crime, the interest violated, among other things, in determining whether the admission of the evidence “would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it”. This “fair trial” test has now been applied for nearly 30 years and has led to exclusion, for instance, in cases where the right to counsel has been violated, but virtually never in cases involving the violation of the right to privacy. English courts also never exclude physical evidence which is the fruit of an illegal search, or even an “oppressive” interrogation.

In Memoriam: Dr Riccardo Montana (1976–2017)

We were deeply saddened to learn of Dr Riccardo Montana’s untimely death in January 2017; many readers of the journal will be aware of his work in in the field of comparative criminal procedure. Riccardo obtained his first degree in Law from the University of Pavia (Italy) in 2003, before completing an LLM at Cardiff Law School in 2005. Here he went on to pursue doctoral research under the supervision of Professors Stewart Field and David Nelken. Riccardo’s research was based on a socio-legal study exploring the working practices of the Italian prosecutor, and was based on 50 interviews with prosecutors and other legal practitioners. During the course of this project, he began to develop an abiding interest in comparing criminal justice. More specifically, he sought to use the concept of legal cultures to understand the way crime control agencies in different jurisdictions respond and adapt to legal and social forces. Riccardo defended his thesis with great verve and passion in February 2009. Having already worked as a tutor at Cardiff Law School and Homerton College, Cambridge University, he took up his first academic post as a lecturer at Kingston University. He was appointed to a lectureship at City Law School in 2011. Here he founded the Crime Justice and Society Research Group, which subsequently evolved into the Centre for Crime and Justice Research. Riccardo was also coordinator of the Research Training Programme for the School’s PhD students, and introduced a very popular module on Criminal Justice on the LLB programme. Staff at City remember a bright and discerning scholar who supported and inspired his students and was widely respected and popular among his colleagues. Promoted to Senior Lecturer in 2016, Riccardo made a profound contribution to the School during his six years of service. A gifted cultural mediator, Riccardo’s visiting lectures at the University of Macerata in Italy were highly appreciated by the students there. While his academic career was cut tragically short, his legacy as a fast-rising researcher will continue to illuminate the field for many years to come. His research in comparative criminal justice was original and ambitious, combining rigorous empirical methodology with a deep understanding of legal theory and comparative legal method. He published inter alia in the Criminal Law Forum (Montana, 2009a), the European Journal of Crime, Criminal Law and Criminal Justice (Montana, 2009b; 2012), and more recently in Evidence and Proof (Montana, 2016). At the time of his death, he was in the final stages of a book on the role of Italian prosecutors set in a comparative context, which he was sadly unable to complete. For those who worked with him, he was a supportive colleague who was very determined, serious and intellectually ambitious about what he did. Riccardo’s many friends in London, Cardiff, Italy and beyond remember a generous, thoughtful and sociable man who had a strong social conscience. He enjoyed sports (particularly football, basketball and rugby), politics, good food and good wine. Above all, he truly valued friendship and family, and lived his life with compassion and dignity. Our thoughts are with his parents, his wife Nadia, and his young daughter Sofia (born in November 2015).

Gender Discrimination and Juries in the 20th Century: Judging Women Judging Men

This article presents a comparative study of the 20th-century exclusion of women from participation on juries. It explains that until the 1970s, and in some cases even the 1990s, substantial formal limitations on jury franchise were placed on women in Ireland, Canada, the United States, New Zealand and Australia. This situation existed notwithstanding women’s equality of political franchise through the vote and despite judicial references to the centrality of the jury. While in England and Wales women were not treated differently from men in formal terms after the 1920s, property qualifications denied them substantive equality and informal limitations excluded women disproportionately. We highlight some distinctive features of the English experience as compared and contrasted with the laws and policies on jury composition operating in other jurisdictions, and ask whether the legacies left by the traditionally unrepresentative jury and the battles for gender equality offer lessons relevant to understanding jury trials in contemporary times.

Crawford v. Washington: A View from across the Atlantic

This article considers the decision in Crawford v Washington from an English perspective. In doing so, it examines the implications of the major changes to criminal hearsay doctrine in England and Wales that are currently being introduced. It also examines the implications of the presence in the European Convention on Human Rights, which has been effectively incorporated into English domestic law, of a guarantee similar to that provided by the US confrontation clause.