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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 70406
Experience:  Over 5 years in practice
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HiCan you please point me in the right direction to find

Resolved Question:

Hi
Can you please point me in the right direction to find articles relating to
1 - inability of defence to cross examine prosecution evidence
2 - non disclosure by the prosecution
3 - examples of what constitutes " Abuse of process"
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
Hi.
Thank you for your question. My name is ***** ***** I will try to help with this.
-Could you explain your situation a little more?
Customer: replied 2 years ago.

Hi Jo

I need help with finding detailed information on the categories which roll into "abuse of process" in particular;

Inability of defence to cross examine prosecution evidence, and

non disclosure of evidence by prosecution which could help the defence.

unfair trial

Hope this helps

Thanks

Customer: replied 2 years ago.

Hi Jo

I need help with finding detailed information on the categories which roll into "abuse of process" in particular;

Inability of defence to cross examine prosecution evidence, and

non disclosure of evidence by prosecution which could help the defence.

unfair trial

I have viewed your profile but you do not specialise in criminal law. Will you still be able to help?

Thank

Hope this helps

Thanks

Expert:  Jo C. replied 2 years ago.
I do specialise in criminal law. I am a long standing criminal hack.
But you are really going to have to summarise this. It is just plain not possible to give you everything that might amount to an abuse. It is like trying to tell you every word in a dictionary. There are thousands of things that could amount to an abuse.
Customer: replied 2 years ago.

Ok, I'll try.

The prosecution withheld valuable evidence which could have helped the defence, "non disclosure by prosecution"

As well as, defence's inability to examine evidence and cross examine prosecution witness.

Hope this helps.

Thanks

Expert:  Jo C. replied 2 years ago.
What is the evidence?
What is the charge?
Why can it not be used now?
Customer: replied 2 years ago.

Hi

Evidence, is phone records which the prosecution had, but did not disclose this which would have helped the defence in their case. At the same time, they said they did not have it.....

Charge is drugs related.

The court has now given prosecution 30 days to release this evidence.

There has OBVIOUSLY been an abuse of process to get a conviction of an innocent person.

I am trying to do research for a friend in need.

Thanks

Expert:  Jo C. replied 2 years ago.
Thanks.
It hasn't been abuse I'm afraid.
It might well be that the defence are entitled to this information but the Crown have received a direction to disclose it. At the very highest point, this is a failure to disclose which is a breach of a statutory duty maybe but it is not an abuse because it is still available.
If the fault can be remedied by disclosure then any abuse argument will fail.
To be wholly honest, even if this does lead to lost evidence it is not necessarily an abuse. You have to show that they acted in bad faith which is nearly always impossible.
You would also need to show that you cannot now receive a fair trial which is always hard. There are large number of cases that say that the tools of the court are adequate to overcome these things. It would also be important to show that the phone evidence is fairly pivotal. It can be with drugs offences. It depends on the nature of the charge and the offence.
An alternative to an abuse argument is S78 PACE but that involves an application to exclude evidence relied upon by the Crown rather than to stay the prosecution altogether.
To be wholly honest, it is unlikely to get anywhere at all. The Crown are always failing to disclose. You have to go to court to get a direction to force them. That is not usually anything to do with bad faith. It is just that nobody has reviewed the case.
Sorry if that is bad news.
Can I clarify anything for you?
Jo
Customer: replied 2 years ago.

Hi Jo

Thanks Jo

Can you please help a bit more by references to cases to elaborate

- bad faith

- How can someone show they cannot receive a fair trial?

- show phone evidence is pivotal?

Thanks

Expert:  Jo C. replied 2 years ago.
None of those are issues of caselaw.
They are questions of fact for the court.
- bad faith is fairly self explanatory.
- that depends on the available evidence. It is not a caselaw issue. The abuse of process arguments that have succeeded have involved really fundamental losses that go to the heart of the evidence.
- again, it depends on the issues in the case. It is quite unlikely that phone records will be lost at all and even less likely that it will be pivotal.
I suppose a good example of a potential abuse would be something like the Crown deliberately waiting until the telephone records were lost before bringing a charge to prevent the defence being abuse to use them. That just doesn't happen. CPS are inefficient but they are not usually dishonest.
Customer: replied 2 years ago.

Thanks Jo

s78 refers more to "Exclusion of evidence", which is not the issue in this case from the defence perspective.

the phone records aren't lost. I believe they decided that it wasn't relevant despite being told otherwise.

What about the "inability to examine evidence and cross examination"?

I would like to read up a bit more on " Abuse of process", can you please point me in the right direction.

Thanks

Expert:  Jo C. replied 2 years ago.
If they are not lost then it is game over. They can disclose and you can use the evidence so there is no abuse.
If the records are available then there is no inability to cross examine upon the evidence.
http://www.cps.gov.uk/legal/a_to_c/abuse_of_process/
specifically here
http://www.cps.gov.uk/legal/a_to_c/abuse_of_process/#b03
Jo C. and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Smile

Thanks Jo.

I will look at the links tonight and let you know if I need anymore help.

Thanks for your help so far

Expert:  Jo C. replied 2 years ago.
No problem and all the best.
Remember that I am always available to help with your questions. Even if I am in Court I will usually pick up a question within 12 hours. For future information, please start your question with ‘For Jo C’.