Directing the Jury on Breaches of the Identification Rules
| DOI | http://doi.org/10.1177/002201839906300535 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | Article |
Directing
the Jury on
Breaches
of the
Identification
Rules
the time of trial there would have
been
justification to stay the proceed-
ings as an abuse of process.
3. An abuse of process such as that before the instant court would
not
always render
the
conviction unsafe
when
the
seriousness of
the
crime was so great
that
it would have
been
proper to exercise judicial
discretion in the prosecution's favour. It was a
matter
of discretionary
balance regarding the conduct complained of
and
the particular offence
charged. .
4. Following R v
Heston-Francois
[1984] 1All ER
785
and
Attorney-
General's
Reference
No.1 of 1990 [1992] 3All ER 169, abuse of process
could be a ground for quashing aconviction.
COMMENTARY
Illegal
procurement
Formerly, the court was
not
concerned with the
circumstances in
which
the accused was found within the jurisdiction so
long as
he
was there: see, for example, R v Plymouth
Justices,
ex p
Driver
[1986] 1QB 95. Ex p Bennett represented a shift in approach. In R v
Staines
Magistrates'
Court
and
others,
ex p
Westfallen;
Same,
ex
p.Soper;
R v
Swindon
Magistrates'
Court
and
Others,
ex p
Nagle
[1998] 4All ER 210,
Bennettwas distinguished on the facts. The Divisional Court found that
the British authorities had
not
colluded or connived in
the
appellant's
return
to
the
jurisdiction. The absence of
any
impropriety precluded
the
application of the
ratio
in
Bennett.
Public
interest
immunity There are limited situations in which
the
non-
disclosure of relevant material is justified, even
under
the
European
Convention on
Human
Rights, for example, on the grounds of national
security. However, there is an increasing tendency for
the
European
Court of
Human
Rights (or the Commission) to disapprove of public
interest applications being heard ex parte
and/or
without
notice to the
accused: see the commentary to
Rowe
and
Davis
v UK [1999] Crim LR
410.
The extent of the jurisdiction
Mullen
breaks
new
ground in
that
it firmly
establishes that the Court of Appeal is entitled to quash aconviction on
the
grounds
that
the
conviction is unsafe
pursuant
to s. 2 (1 )(a) of
the
Criminal Appeal Act 1968. In
Mullen,
Rose LJ
(V-P)
observed
that
no
challenge was made as to
the
fairness of the trial
and
it was conceded
that
if
it
had
been fair to try the appellant
then
he
had
been
properly
convicted. For a more detailed consideration of the
judgment
and
abuse
of process generally, see (1999) 163
lPN
309 at
310
onwards.
Directing the Jury on Breaches of the Identification Rules
R v
Donal
Lennon
(unreported,
10
May 1999, No.
9901419/W5)
The appellant was convicted of affray. He took an active part in a
demonstration in South London.
It
was alleged that during
the
demon-
stration aperson (the appellant) had
thrown
abottle at a police cordon.
459
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