What are the Most Common Legal Arguments
It is common to hear lawyers and courts talk of applications to dismiss and making an application to stay as an abuse of process, but what do they mean?
An Application to Dismiss
If there is insufficient evidence for a jury, properly directed, to convict the Defendant. There ought to be an application to dismiss made.
This is where there will be a written application to stay the proceedings as there is not enough evidence put forward by the prosecution.
This is done at an early stage and will normally result in an oral hearing. If successful, that brings the case to an immediate end (and if the Defendant is in custody, they will be released).
Bad Character Evidence
Where a Defendant is of 'Good Character' i.e. they have never been in trouble before, they will receive a good character direction stating that it may make it less likely they are guilty and more likely they are telling the truth (if they gave evidence).
However, where someone has previous convictions, the Prosecution may seek to rely on these. It is important to try and oppose this. It is possible to take advantage of a witness' previous convictions or reprehensible conduct.
Abuse of Process
Where it is unfair to try the Defendant or it is not possible to give the Defendant a fair trial, it is possible to apply to stay the proceedings as an Abuse of Process.
This is a very high bar but one which should be explored. It can arise because of a delay in charging a suspect or because evidence has been lost during an investigation.
Disclosure
In 1996, the Criminal Procedure and Investigations Act was introduced. This meant that there were legislative obligations imposed on the CPS to disclose evidence in advance of any trial. This extends to disclosing evidence which undermines the prosecution case or assists the defence case.
Ensuring that disclosure obligations are complied with is essential. It is also an excellent way of obtaining potentially helpful evidence by making applications to force the CPS to disclose material to the Defence.
Applications to Exclude Evidence
Section 78 of the Police and Criminal Evidence Act 1984 gives a Judge (or Magistrates) the discretion to exclude evidence which has been unfairly or improperly obtained.
This will be where the effect of evidence being admitted has such a prejudicial effect that it outweighs the probative value of the evidence being admitted.
Extradition
The law on Extradition has been made far more complex since the exit from the European Union. It has meant that obligations and agreements are now bilateral rather than multi-lateral.
