Keeping criminal trials fair

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Judicial staying of criminal proceedings is an exceptional course for the trial judge to take and usually the trial process itself including appropriate judicial directions to the jury, is adequate to ensure that a criminal trial remains fair at common law and Article 6 of the European Convention on Human Rights, as given effect to in the Human Rights Act 1998. Critically evaluate this comment in the light of appropriate case law. The fundamental issue being raised is the fairness of criminal trials. The remedies that are used by criminal courts when the judge decides that there has been some unfairness in the proceedings include staying of proceedings, quashing of indictments and excluding evidence.

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Exclusion of evidence can be made during the trial process, by means of the trial judge directing that the jury ignore that evidence, and staying of proceedings stops the trial process, and is only exercised when there has been an abuse of the process. English fair trial jurisprudence commenced from domestic common law, then developed via section 78 of Police and Criminal Evidence Act 1984, and thereafter via international human rights law, in particular Article 6 of the European Convention on Human Rights (ECHR) incorporated into domestic legislation by the Human Rights Act 1988 (HRA 1988), as discussed below. Regarding the exclusion of evidence, the original common law rule from the mid-eighteenth century to early twentieth century, was that the admissibility of evidence at trial was wholly unaffected by the circumstances in which it was obtained 1, and also reaffirmed in 1955 by the Court of Appeal. 2 The trial judge’s discretion at common law to exclude relevant evidence was provided in Sang, 3 which laid down two principles that evidence could be excluded, firstly if it was to have a prejudicial effect outweighing its potential value, and secondly to exclude improperly or unfairly obtained evidence. In Sang the trial judge ruled that he had no discretion to exclude evidence relating to the commission of an offence to conspire to utter forged banknotes on the basis that it had been initiated by an agent provocateur, that is, an agent enticing the defendant to commit the crime, being the defence of entrapment. This was reaffirmed by the House of Lords, in which the existence of the discretion to exclude improperly or unfairly obtained evidence was recognised, but that this was limited to evidence obtained after the commission of the offence. 4 ______________________________________________________________________________ 1 R v Warwickshall [1783] 1 Leach 263; R v Griffin [1809] Russ & Ry 151 2 Kuruma – v – R [1955] A.C. 197 3 R v Sang [1980] AC 402 HL 4 Brannan – v – Peek [1948] 1 K.B. 68 The trial judge’s discretion to exclude evidence was only exercised in exceptional circumstances. In Apicella 5,

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