Reclaiming the Essence of "Second Limb" Abuse of Process

Abstract

The original cases in what we now call “second limb” abuse of process allowed courts to stay trials where one of the defendant’s rights concerning the decision to prosecute him or her or the conduct of the prosecution had been violated. This essence of the doctrine has been lost since the leading cases ex p Bennett and Warren in favour of a broader appeal to the court’s “sense of justice and propriety”. Insofar as this permits courts to entertain the possibility of stays in all cases of misconduct by the police, this departure is a cause for regret. We should reclaim the rights-based jurisdiction, which is itself flexible and may still permit stays in cases of wrongful entrapment.