دانلود کتاب Young, Corker and Summers on Abuse of Process in Criminal Proceedings: Fifth edition

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Preface\nAcknowledgements\nTable of Cases\nTable of Statutes\nTable of Statutory Instruments\nTable of European and International Agreements\nChapter 1 Delay\n Introduction\n The test of the common law\n Introduction\n Statutory measures\n The Cornerstone Case: Attorney-General’s Reference (No 1 of 1990)\n A-G’s Reference (No 2 of 2001)\n The Court of Appeal ruling\n The House of Lords ruling\n The settled law on delay\n The requisite content of a direction on delay\n ECHR jurisprudence\n Article 6(1): Right to be tried within a reasonable time\n The Strasbourg case law – criteria for determining reasonableness\n Evidence of prejudice\n The threshold of inordinate or excessive delay\n How is ‘reasonable time’ to be measured?\n Remedies for violation of Art 6(1)\n Conclusion\nChapter 2 Breach of promise\n The promise\n Prejudice\n Promises not to prosecute\n Pre-Dean authorities\n R v Croydon Justices, ex p Dean\n Post-Dean authorities\n R v Abu Hamza\n R v Downey\n Promises to offer no evidence\n Promises on acceptable pleas\n Other promises\n Prosecution promises not to call a witness\n The prosecution code for ‘re-starting a prosecution’\n Police cautions\n Crown divisibility\n Implied promises\n Concluding remarks\n Unfairness to the accused\n Unfairness in the public perception\n Unfairness from the judicial perspective\nChapter 3 The loss or destruction of evidence\n Background\n Context\n The current state of the common law\n Mouat\n Ebrahim\n Analysis of Brooke LJ’s judgment\n Post-Ebrahim case law\n The historical development of the common law\n R v Sadridin\n R v Sofaer\n R v Sunderland Magistrates’ Court, ex p Z\n R v Birmingham\n R v Gajree\n R v Beckford\n R v Northard\n R v Reid\n R v McNamara\n R v PR\n Hamilton v Post Office\n Miscellaneous cases\n Criminal Procedure and Investigations Act 1996 Code of Practice\n The duty to obtain and/or retain material under the CPIA Code\n Relevant material\n Duty to ‘pursue all reasonable lines of inquiry’\n The CPIA Code of Practice 1996\n The Attorney-General’s Guidelines (2020)\n Third party material\n The position at common law\n E v E\n R v Hewitt\n R v Warren\n Lost evidence and hearsay\n The Protocol on Unused Material (2013)\n European Court of Human Rights Case Law\nChapter 4 Miscellaneous abuse\n Proof of prejudice not required\n Statutory Time Limits\n Magistrates’ Court Act 1980, s 127\n Expiry of limitation period\n Custody time limits\n Pre-interview disclosure\n Prosecutor’s improper motive\n R v Bow Street Metropolitan Stipendiary Magistrates, ex p South Coast Shipping\n R v Durham Magistrates Court, ex p Davies\n R v Gloucester Crown Court, ex p Jackman\n R v Milton Keynes Magistrates, ex p Roberts\n R v Adaway\n R (on the application of G) v S\n R (Wokingham Borough Council) v Scott\n D.Ltd v A1\n Removal of right to a particular type of trial\n R v Rotherham Justices, ex p Brough\n R v Redbridge Justices and Fox, ex p Whitehouse\n R v Martin\n Removal of a potential defence\n Prosecution overcharging\n Disparity of treatment arguments\n Trial in absence of a co-accused\n Repeated committal proceedings\n The rule in Hunter\n Failure to conduct a fair interview\n Retrials\n Witnesses: contact with witnesses and duty to call witnesses\n Selective prosecution\n Non-disclosure abuse\n Non-disclosure and unfairness\n The CPIA 1996; prosecution failures to comply with their disclosure obligations\n The problems encountered\n Relevant ECHR jurisprudence\n Public Interest Immunity\n Patel and Early; misleading the judiciary and prosecution bad faith\n Abuse of process in cases involving victims of trafficking or modern slavery\nChapter 5 Abuse of power by the executive\n General principles\n R v Maxwell\n Warren v the Attorney General of Jersey\n Secretary of State for the Home Department v CC\n R v CB\n R v Norman\n Disguised extradition\n The issues raised\n Pre-Bennett decisions regarding jurisdiction\n Ex parte Bennett\n Application of the Bennett abuse jurisdiction in cases of disguised extradition\n Pre-Bennett authorities\n Ex parte Bennett\n Post-Bennett authorities\n Article 5 ECHR\n Unlawful acts committed by UK state agents overseas\n R v McDonald\n The issues raised\n Unlawfully obtained evidence\n The ECtHR jurisprudence\n The common law\n Commission of criminal offences or unlawful conduct by investigators\n Pre-Latif cases\n R v Latif\n Post-Latif cases\n R v Grant\n Illegitimate funding of the prosecution\n Deprivation of foreign rights\nChapter 6 Entrapment\n Introduction\n The right remedy; s 78 or abuse of process?\n Entrapment not a substantive defence\n Abuse of executive power\n ECtHR Jurisprudence\n What counts as entrapment?\n The difficulties of definition\n Rejected rationales for entrapment\n The active/passive distinction\n Providing an opportunity\n Random virtue-testing\n Predisposition\n The accepted rationale; reasonable suspicion\n The Looseley factors for entrapment\n Reasonable suspicion\n Supervision\n The nature and extent of state participation in the crime: necessity, proportionality and ‘unexceptional opportunity’\n Post-Looseley case law\n Non-compliance with procedural requirements\n Non-authorisation\n Private or non-state entrapment\n Early authorities\n Recent case law\n Re Saluja\n R v TL\n Conclusions on private entrapment\n Entrapment as mitigation\nChapter 7 Double jeopardy\n Autrefois acquit and convict\n The scope of the pleas as determined in Connelly\n Situations that do not form a basis for a plea of autrefois acquit or autrefois convict\n Proceedings before the Special Immigration Appeals Commission (‘SIAC’)\n Civil proceedings following acquittal in criminal proceedings\n Procedure on autrefois pleas\n Statutory exceptions to the autrefois rule: Criminal Justice Act 2003\n Case stated\n Appeal to the Supreme Court\n Retrial following successful appeal against conviction\n Tainted acquittals\n Army Act 1955, s 33\n Magistrates’ Courts Act 1980, s 27\n Extradition\n Issue estoppel\n Authorities post-Connelly\n ‘Same activity’ cases\n Separate prosecutions by different prosecution agencies: Sequential trials and special circumstances\n Repeated committal proceedings cases\n Sequential trials in complex trials arising out of severance of the indictment\n Similar fact\n Double Jeopardy under European human rights law\n European Court of Human Rights (‘ECtHR’) authorities\n Other relevant international obligations\n Sentencing\nChapter 8 Abuse in extradition proceedings\n Statutory protections against abuse\n Extraneous considerations\n Double jeopardy\n Passage of time\n Trials in absence\n Physical or mental health\n National Security\n Human rights\n Articles 2 & 3 of the ECHR\n Article 5 ECHR\n Article 6 ECHR\n Article 7 ECHR\n Article 8 ECHR\n PACE\n The role and powers of the Secretary of State\n The slow development of an abuse jurisdiction\n The impact of the Human Rights Act 1998 and Kashamu\n The position under the 2003 Act\n Jurisdiction finally established\n Procedure\n Stage 1: The conduct alleged to constitute the abuse being identified with particularity\n Stage 2: Consider whether the conduct, if established, is capable of amounting to an abuse of process\n The intrinsic limits of the jurisdiction\n The applicable threshold\n Not concerned with the prospective trial process\n Pre-2004 case law\n Case law under the 2003 Act\n Manipulation of the extradition machinery\n Conduct of UK authorities\n Disguised extradition: deportation and extradition\n Ulterior motive or purpose\n Non-disclosure as evidence of bad faith\n Prescribed particulars in the warrant are incorrect\n Extradition offence\n Actions of a third-party state\n ‘Stage 3’: Whether there are reasonable grounds for believing that such conduct may have occurred\n No right to disclosure at stage 3\n ‘Stage 4’: The judge should not accede to the request for extradition unless he has satisfied himself that such abuse has not occurred\n The disclosure position at stage 4\nChapter 9 Adverse publicity\n Publicity and jury decision-making\n Contempt of court in the context of pre-trial publicity\n The use of the internet and social media\n Abuse of process\n Trust in the jury\n The risk of prejudice\n Proximity to trial – the fade factor\n A review of the case law\n R v Maxwell\n Post-Maxwell authorities\n R v Stone\n R v Ali (Ahmed) and others\n R v Abu Hamza\n Alternative to a stay – remedies to reduce the risk of prejudice\n Jurisprudence of the ECHR\nChapter 10 Procedural considerations\n Introduction\n The Magistrates’ Court: Jurisdiction\n The legal context\n The general position\n The creation of a split jurisdiction in Bennett\n Problems arising from the split jurisdiction\n Post-Bennett authorities – widening of magistrates’ jurisdiction\n Significance of Watts\n Conclusions\n Sending cases under s 51\n Summary trials\n Case stated and judicial review of the Magistrates’ Court\n Appeal by way of case stated\n Availability of case stated\n Judicial review\n Applications for judicial review\n The grounds for judicial review\n Approach of the High Court\n A procedural note\n Procedural tactics in summary cases\n Challenging interlocutory decisions by judicial review\n The Crown Court\n Appeals to the Crown Court\n Abuse of process applications in the Crown Court\n Challenging adverse rulings of the Crown Court\n Preparatory hearings and interlocutory appeals\n Decisions which do not relate to trial on indictment\n Appeals to the court of appeal against adverse rulings in the Crown Court\n Pre-1995 Act practice\n Post-1995 Act but pre-Mullen case law\n The decision in Mullen\n The approval of Mullen\n What is the effect of pleading guilty on an appeal to the Court of Appeal?\n Abuse of process as a novel ground of appeal\n Prosecution appeals to the Court of Appeal\n Retrials\n Where the Crown adopt a change of stance at the retrial\n Where the Court of Appeal orders a retrial\n Compensation in miscarriage cases\n The abuse of process hearing\n Rules of procedure\n The Protocol for the Control and Management of Heavy Fraud and other Complex Criminal Cases\n Timing of application\n Must the trial judge conduct an inquiry into an abuse submission?\n Voir dires\n No power to order disclosure\n Argument and giving of reasons\n Divisible indictments\n Defence evidence at sending hearings in the Magistrates’ courts\n Fairness to the prosecution\n Fairness to third parties\n Third party abuse\n The use of intermediaries\n Legal representation\n The burden of proof\n The standard of proof\n Judicial discretion in delay cases\n Presentation\nChapter 11 Confiscation proceedings\n Introduction\n Proceeds of Crime Act 2002, Part 2\n The ‘intention of Parliament’\n The statutory assumptions\n Draconian but ECHR compliant?\n Confiscation and A1P1\n Repayment by the defendant\n Abuse of process and confiscation?\nChapter 12 Abuse of process doctrine in international criminal proceedings\n Introduction\n Ad hoc tribunals: International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda\n Applicable principles\n ICTY/ICTR fact patterns\n International Residual Mechanism for Criminal Tribunals\n Hybrid tribunals: special court for Sierra Leone; extraordinary chambers in the courts of Cambodia and the special tribunal for Lebanon\n SCSL\n ECCC\n STL\n International Criminal Court\n Applicable principles\n Conduct of national authorities\n Prosecutorial misconduct\n Obstacles to preparation of Defence\n Final remarks\nAppendix A The Code for Crown Prosecutors\nAppendix B Attorney General’s Guidelines on Disclosure for Investigators, Prosecutors and Defence Practitioners 2020\nAppendix C Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice\nAppendix D Judicial Protocol on the Disclosure of Unused Material in Criminal Cases\nIndex