Lost, Altered or Destroyed Evidence.
In what circumstances can the prosecution rely on secondary evidence when the original evidence is missing or is no longer intact? First published in the Justice of the Peace (2007) 171 JPN 556.
Missing evidence
Criminal proceedings will sometimes depend for their success on evidence derived from physical or “real” evidence which, by the time of the hearing, has either wholly or partially ceased to exist or cannot be found. The prosecution may seek to rely on the evidence of an expert who had examined the missing evidence before it was lost, altered or destroyed. In many cases it will be that very expert examination which caused the physical evidence to have lost its original form or properties. Although a forensic examination of the physical evidence may alter that evidence it will usually be a necessary procedure carried out to ensure that the physical evidence can be properly interpreted. Even in the absence of an examination of the physical evidence there may be no way of preserving it in its original state.
In a case where the prosecution has lost, altered or destroyed key evidence the defence may well argue that it is not possible for there to be a fair trial or that the evidence of the expert who examined the physical evidence should be excluded as being unfair. Occasionally the loss of physical evidence will have nothing to do with any expert examination thereof; it may be misplaced or stolen or it may have been innocently or inadvertently destroyed by someone who did not appreciate its significance as where e.g. videotape evidence is recorded over before its evidential value is recognised. And, of course, accidents do happen.
Preservation of evidence
The law is concerned that evidence should be preserved. S 19 of the Police and Criminal Evidence Act 1984 (“PACE”) gives police officers certain powers, whilst lawfully on any premises, to seize anything where it is necessary in order to prevent it being concealed, lost, damaged, altered or destroyed. S 56 of the Criminal Justice and Police Act 2001 gives the police the power to retain such property. Paragraph 5.1 of the Code of Practice, made under s 23 of the Criminal Procedure and Investigations Act 1996 (“CPIA”), imposes a duty on the prosecutor to retain “material obtained in a criminal investigation which may be relevant to the investigation”. In the case of documents, however, provision is specifically made for non-original evidence to be relied upon. S 133 of the Criminal Justice Act 2003 (“CJA”) provides that “where a statement in a document is admissible as evidence in criminal proceedings, the statement may be proved by producing either (a) the document, or (b) (whether or not the document exists) a copy of the document or of the material part of it, authenticated in whatever way the court may approve.” The identical predecessor provision, in s 27 of the Criminal Justice Act 1988, did not come into force until after Lloyd LJ in R v Governor of Pentonville Prison ex parte Osman [1989] 3 All ER 701, applying the last vestiges of the best evidence rule, said that in a case where a party had or could have the original of the document in court “if he refuses to produce the original and can give no reasonable explanation, the court would infer the worst. The copy should be excluded.” The manner of authentication of the copy document which the court may approve under s 133 may still be affected to some extent by the question of whether the original could be produced. Arguably the best way to authenticate the copy is by producing the original but the court need not insist on that. Even if it is not necessary to produce an original document for the purposes of admissibility, if the authenticity of a copy is in dispute, failure to produce the original will be relevant to the weight which may be attached to the copy. The loss of non-documentary evidence, material objects or other real evidence, is likely to be more crucial since its evidential value may not be capable of being reproduced in a copy. A photograph of a murder weapon may indicate its configuration but not necessarily its size or composition and it will not reveal the fingerprints, or traces of DNA which may have been on the weapon itself.
Legal challenge
S 78 PACE gives the court a discretion to exclude prosecution evidence which it considers would adversely affect the fairness of the proceedings. It provides that:
“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
Where the prosecution has damaged the integrity of real evidence during the course of their examination of it this may have the effect of denying the defendant’s expert the opportunity of conducting his own examination of the evidence so as to be in a properly informed position to challenge the analytical findings of the prosecution. In those circumstances the court may determine that the prosecution’s evidence resulting from its examination of the physical evidence should be excluded. Where real evidence goes to the heart of the prosecution, the inability of the defence to examine it, before it has been permanently altered by the examination or tests carried out by the prosecution, could lead not only to the results of such examination or tests being declared inadmissible, but the entire proceedings being stayed as an abuse of process of the court.
The principles
The principles to be applied by the court, when determining whether a prosecution should be stayed as an abuse of process as a result of missing or altered evidence, were set out by the Divisional Court in the seminal case of R (Ebrahim) v Feltham Magistrates’ Court; Mouat v DPP [2001] EWHC Admin 130; [2001] 1 WLR 1293. The defendants in each of those cases had complained that their trials should have been stayed as an abuse of process due to the fact that videotape showing, in one case, the scene where the alleged assault had taken place and, in the other case, the excessive speed on a police car’s speedometer and the defendant’s car travelling in front, was reused or otherwise obliterated. Brooke LJ, giving the judgment of the court, said:
“We must … stress from the outset that this residual (and discretionary) power of any court to stay criminal proceedings as an abuse of its process is one which ought only to be employed in exceptional circumstances. … Two well-known principles are frequently invoked in this context … :
(i) The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution, because the fairness of a trial is not all one sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted.
(ii) The trial process itself is equipped to deal with the bulk of the complaints on which applications for a stay are founded.
… It must be remembered that it is commonplace in criminal trials for a defendant to rely on ‘holes’ in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination. If, in such a case, there is sufficient credible evidence, apart from the missing evidence, which, if believed, would justify a safe conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or magistrates not to convict because evidence which might otherwise have been available was not before the court through no fault of his. Often the absence of a video film or fingerprints or DNA material is likely to hamper the prosecution as much as the defence. [As Lane LCJ said in Attorney-General’s Reference (No 1 of 1990) [1992] 1 QB 630 CA] ‘No stay should be imposed unless the defence shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held; in other words, that the continuance of the prosecution amounts to a misuse of the process of the court’. … If the behaviour of the prosecution has been so very bad that it is not fair that the defendant should be tried, then the proceedings should be stayed on that ground. [A useful test (see R v Swingler, post) is] that there had to be either an element of bad faith or at the very least some serious fault on the part of the police or the prosecution authorities for this ground of challenge to succeed.”
The overall test is therefore one of fairness to both the prosecution and defence. Before the discretion to stay a prosecution as an abuse of process resulting from a loss of evidence may be exercised, the defence must show, on the balance of probabilities, that the loss was due to a serious fault on the part of the prosecution and that fairness cannot be restored through the trial process. A major way in which, in some cases, fairness might be restored is by the court excluding evidence, which is based on the missing evidence, as being unfair under s 78 PACE, ante.
Lost evidence and hearsay
Although an original piece of evidence may no longer exist, or cannot be found, all may not be lost. This is particularly so in the case of written material where the evidential value lies in the record of what was written rather than in the writing itself. In such cases, subject to compliance with the rules, hearsay evidence may be admissible as to what the missing writing said. In Maher v Director of Public Prosecutions [2006] EWHC 1271 (Admin), the defendant was seen reversing her Mini, in a car park, into an Astra car. The witness noted the registration number of the Mini and left it, with her own contact details, on the windscreen of the damaged Astra. When the victim returned to his Astra he found the note and telephoned the police who recorded the information on an incident log. When interviewed by the police, the defendant admitted being the driver of the Mini at the relevant time and place but denied driving into the Astra. By the time of the defendant’s trial, the original note was lost but the magistrates admitted the third hand evidence of it in the form of the police log holding that it was admissible as a business record. The defendant was convicted and appealed. Scott Baker LJ noted that the magistrates had admitted the evidence contained in the police log under section s 117 of the CJA for the purposes of which it was necessary to identify “the relevant person” i.e. “the person who supplied the information contained in the statement. That person was the witness and, as she had not written her note in the course of a business, the note was not a business record. Scott Baker LJ said that his view was “fortified by subsection (2)(c) which clearly envisages the possibility of the information passing through several individuals from the supplier to its ultimate destination, in this case the police log. Whilst the requirements of section 117(2)(b) are met, in that [the witness] plainly had personal knowledge of the number of the offending vehicle when she recorded it, an insuperable difficulty arises with section 117(2)(c) which provides that each individual in the line along which the information was transmitted must have received it in the course of a trade, business, et cetera.” However, it was nonetheless possible for the hearsay evidence to be admitted in reliance on s 121(1)(c) CJA if the court was satisfied that “the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for the purpose.” Scott Baker LJ considered that the information was very reliable: “It would be extraordinary if there was an error in transmission, but the number of the vehicle recorded on the police log just happened to coincide precisely with the number and description of a vehicle that was in the car park at the time and seen by the witness … the possibility that there could have been any error in this case are so remote that there was an overwhelming case for evidence to be admitted.”
The Divisional Court’s conclusion as to who the “relevant person” or “the person who supplied the information” is for the purposes of s 117(2)(b) is entirely consistent with the line of authorities in relation to the meaning of the “maker” of a statement for the purposes of the predecessor provision in s 24 of the Criminal Justice Act 1988 – see R v Derodra [1999] Crim LR 978 and R v Lake Estates Watersports Ltd [2002] EWCA Crim 2067.
The Court of Appeal had the opportunity to give some guidance in relation to copies of missing documents in the case of R v Carmelita Anderson [2004] EWCA Crim 1112. There the defendant, who was the proprietor of “Canway Health Care College”, sought leave to appeal against her conviction under s 14(1)(a) of the Trade Descriptions Act 1968 for making false statements in certificates issued to her students that her College was “in association with City and Guilds”. Her case was that she was the victim of a conspiracy by former students who had created the false certificates to discredit her. The original certificates had been lost but copies thereof were admitted at her trial despite her challenge that to proceed without the originals was an abuse of process. Although Scott Baker LJ said that the defendant’s application for permission to appeal was “in our judgment hopeless”, it was for the reasons given by the single judge who had first refused permission to appeal and for the reasons given by the trial judge. Unfortunately none of those reasons are recited in the judgment.
Literally “lost” evidence
In Hilliers Ltd v Sefton Metropolitan Borough Council (CO/2165/96), the Council brought a prosecution under s 14 Food Safety Act 1990 following the sale by the defendant company of a steak and kidney pie containing a metal bolt. On the company’s appeal against conviction it contended that the trial was an abuse of process as, the prosecution having lost the pie and its wrapping, the date of manufacture of the pie was not known and this had prevented them from carrying out a proper investigation into the manufacture of the pie. Without the date on the wrapper they claimed to be denied the opportunity to rely on the due diligence defence enshrined in the legislation. Schiemann LJ was unsympathetic as the company had not sought to apply for the evidence of the bolt’s presence in the pie to be excluded under s 78 PACE at its trial in the Crown Court. Without expressing a view on how successful such an application to exclude the evidence might have been, Schiemann LJ said “a submission that this was an abuse of process – in the circumstances, it would be an abuse of process ever to lay the information when the wrapper was gone – had no chance of success.” It may have been significant that although the loss of the wrapper put the defence in some difficulty in carrying out an audit trail based on the date of manufacture, the prosecution still had the bolt and they had retained photographs of the pie. A missing wrapper would be more significant in a case where the allegation was, for example, that the wording on the wrapper was false or misleading.
Evidence lost through delay
Lincoln City Council v Helmrich [2002] EWHC 1241 (Admin) was a case where the prosecution was delayed for 2½ years awaiting the outcome of an inquest. The Defendant was the Health & Safety Manager of Fatty Arbuckles Ltd which employed a student who died in August 1998 from an electric shock caused by a defective electrical plate warmer. The company went into receivership in July 2000. In March 2001 an information was laid against the Defendant alleging that he had failed to take reasonable care for the health and safety of himself and other persons who may have been affected by his acts or omissions at work contrary to ss 7(a) and 33 of the Health and Safety at Work etc Act 1974. The magistrates stayed the proceedings as an abuse of process based on delay. They found that the Defendant had been prejudiced by the delay, inter alia, because, as the company had gone into receivership during that time, it was impossible for him to obtain essential documents which could establish that he had acted reasonably. On the prosecutor’s appeal, Jackson J concluded that the delay had not made a fair trial impossible.
“The magistrates were told that 18 categories of documents had been lost [whereas] only seven of those 18 categories appear to have vanished during the relevant period. ... In any event, in so far as relevant documents were missing, the magistrates trying the case could make every allowance for the difficulties which [the Defendant] faced: see Attorney-General's Reference (No 1 of 1990) [1992] 1 QB 630 CA. The trial process could compensate for any prejudice rising [sic]. The prosecution case relies heavily on admissions made by [the Defendant] during his interview under caution [and he] will have the opportunity to explain or comment on those admissions in the course of his trial.”
Occasionally delay will result in the unavailability of crucial evidence, the lack of which will have such a prejudicial effect on the defendant’s case that there cannot be a fair trial. Such a case was R v O’Dell (2000/00175/Y2). O’Dell was convicted in 1999 of offences of indecent assault against school pupils alleged to have been committed in the 1970s. He had been arrested and interviewed in 1976 and at his 1999 trial gave undisputed evidence that the Director of Public Prosecutions (“DPP”) had decided not to prosecute him. At his trial, there were no existing papers relating to the investigation in 1976 or of correspondence with the DPP. The prosecution resulted from renewed complaints made much later by one of the pupils who was by then an adult. O’Dell’s submission that he could not have a fair trial was rejected by the judge. On appeal, Laws LJ stressed that the decision to allow the appeal was wholly dependent upon the special facts of the case. O’Dell had “suffered particularly grave prejudice” resulting from the loss of the 1976 documents. He had been denied the possibility of investigating the complaints at the time and from finding out the basis of the DPP’s decision not to prosecute. “This was one of those cases in which the prejudice to the appellant could not be cured by even so careful a conduct of the trial and summing-up as the trial judge gave.” In the “very special” overall circumstances, it was appropriate for there to be a stay to prevent an abuse of process even though the prosecution had not acted in bad faith. Alternatively, it could be said that the generally necessary requirement for there to be an element of fault or malicious behaviour on the part of the prosecution was present and could be derived from the fact that the prosecution had to accept the defendant’s assertion that the DPP had previously decided not to prosecute. For the prosecution to proceed in such a situation, when the defendant had been disadvantaged by the considerable lapse of time since that decision was made, could well be equated to bad faith.
Deteriorated evidence
Evidence may disappear or its chemical or physical appearance or composition may change simply through the passage of even a short period of time as a result of natural decay unrelated to any action taken by or on behalf of the prosecution. In R v Khan (99/4824/Z2), Environmental Health Officers removed samples of chicken doner kebab from the defendant’s premises. Scientific examination showed the kebab to contain a strain of salmonella bacteria. The defendant was convicted under s 8 of the Food Safety Act 1990 of possessing the kebab for human consumption when it failed to comply with food safety requirements. At his trial, and on appeal, the defendant argued that the prosecution should have been stayed as an abuse of process in view of the fact that the culture sample had decayed such that it could not be examined by his experts. Alternatively, he argued that the evidence of the prosecution scientist should be excluded as being unfair under s 78 PACE. Mantell J said: “This case is clearly analogous to a case where evidence has been lost or destroyed … there is no suggestion here of bad faith on the part of the authorities. … It was purely accidental – fortuitous that the sample had been rendered unviable in a shorter time than might otherwise have been expected. It was entirely a matter within the discretion of the trial judge as to whether or not he stayed the prosecution or, if not that, excluded the evidence by virtue of his discretion under s 78. We can find no fault with the manner in which the judge exercised his discretion.”
Sometimes real evidence will deteriorate or be destroyed as a direct result of it or other proximate real evidence being examined by a prosecution expert. That was the situation in R v Parker [2002] EWCA Crim 90. The defendant was convicted of arson, it having been found that she had set fire to the bed in the room of a guest house in which she was staying. The fire officer who had examined the scene had concluded that the fire was caused by a gas lighter which must have been deliberately held with a horizontal flame directed at the rucked-up bedding for 5 or more seconds and, further, that if the lighter had been dropped on the bed the valve would have closed before the flame could have taken effect. The mattress and bed were removed in the investigation in order that the floor could be examined. This removal had caused the mattress to disintegrate. The defendant appealed against conviction on the basis that there had been an abuse of process in view of the failure by the police to take photographs of the mattress before it was removed and disintegrated. This was said to have prejudiced her because her expert was not able to examine the mattress (or photographs of it) in order to challenge the fire officer’s evidence as to the cause of the fire. This failure was a breach of Home Office guidelines and the CPIA Code of Practice. Potter LJ said: “Criticism may well attach to the failure on the part of the police in those circumstances to ensure that more and detailed photographs were taken than was in fact done, so that such photographs could be later available to the Defence if required, given the non-preservation of the items concerned. That was a matter which it was within the power of the Police Investigating Officer to arrange and was a matter for which he, rather than the Fire Service, was responsible. However, the seriousness of the failure in that regard must be judged in the light of the practical situation and the real likelihood of any challenge to the manner in which the fire was started. ... Whether or not there could be a fair trial fell to be decided on the question of the adequacy of the evidence and the prejudice to the Defence arising from the inability of its expert to examine any careful notes or close-up photographs of the bedding, in a situation where no practical suggestion was, or has since been, advanced as to the real likelihood or possibility of [the defendant’s expert] forming a different opinion from that put forward by [the] Fire Officer.” The Court of Appeal found that the trial judge was entitled to conclude that a fair trial was possible. It was noted that the defendant had chosen not to give evidence, but that she did have the opportunity to do so and to say, as the only eye-witness, what, according to her, had actually happened.
Wholly exceptional circumstances
In R v Medway (98/7579/Y3), the defendant was charged with a robbery having been seen pulling a handbag from an elderly woman’s shoulder as a result of which she fell fracturing her shoulder and bruising her face. There was a CCTV camera operating at the location of the robbery at the relevant time and so it was possible that the incident had been recorded. The tape was looked at by a police officer who, having decided it showed nothing of value, caused the tape to be reused. At his trial the defendant unsuccessfully applied for the proceedings to be stayed as an abuse of process in view of the absence of the video tape. He was convicted and appealed. Mantell LJ, sitting in the Court of Appeal, said: “It is always necessary for the court to return to the general principles which are applicable in all cases. The first general principle is the inherent power which is acknowledged to exist by which the court is able to prevent an abuse of its own process (see Connolly v DPP [1964] AC 1254). The second principle … is that the court’s power to stay or prevent a prosecution should be sparingly exercised [see Attorney General’s Reference (No 1 of 1990), ante]. … We recognise that in cases where evidence has been tampered with, lost or destroyed it may well be that a defendant will be disadvantaged. It does not necessarily follow that in such a case the defendant cannot have a fair trial or that it would be unfair for him to be tried. … There would need to be something wholly exceptional about the circumstances of the case to justify a stay on the ground that evidence has been lost or destroyed. One such circumstance might be if the interference with the evidence was malicious. … Here it has never been suggested that the failure to preserve the tape stemmed from malice. The judge heard evidence from the officer concerned that there was nothing on the tape to assist either side. There is not the slightest reason to suppose that the absence of the tape affected the fairness of the trial or rendered the conviction unsafe.”
Ebrahim, and Medway, ante, were followed in Crown Prosecution Service v Jeremiahs [2002] EWHC 2982 Admin. There the defendant was tried for charges including attempted kidnapping. He was picked out by the complainant at an identification parade. When charged, however, he said he was likely to have been picked out because he had talked to the complainant and other girls outside a Tesco store prior to the alleged offence and so they had plenty of time to look at him. He said that the CCTV at Tesco may have recorded this. Although the police asked Tesco to retain the tape, it was “mislaid” by Tesco. The defendant’s trial was stayed as an abuse of process. Upon the prosecutor’s appeal, Rose LJ said that the district judge had failed to apply the principles in Ebrahim and Medway. The missing video evidence did not “bear on the issue at the heart of this case, namely identification, and whether it was the defendant who had done that which the complainant described.” He said: “The fact that there may have been an issue and there may have been in the video material capable of supporting the defendant’s account, does not … bring this case into the category of exceptional cases in which a stay should be ordered.” It is notable that the loss of the video evidence was not due to any fault by the prosecution.
Fault by the prosecution
An element of fault by the prosecution is an essential ingredient if there is to be a stay of the proceedings as an abuse of process. As noted in R v Medway, ante, there has to be a wholly exceptional circumstance which prevents the defendant being able to have a fair trial. In that case Mantell LJ gave malicious interference with the evidence as an example of such a circumstance. The degree of fault by the prosecution, which results in evidence being missing, does not, however, have to be as high as “malicious” to result in a stay if there are other circumstances, which cannot be ameliorated by the trial process, which make a fair trial impossible. There does, however, have to be at least an element of bad faith on the part of the prosecution to cause its continuation with the trial to be characterised as an “abuse”.
R v Swingler (97/06856/X5), was one of the unreported cases cited with approval in R (Ebrahim) v Feltham Magistrates’ Court, ante. It is a good illustration of how the courts are not minded to grant a stay of proceedings where no fault for the loss of evidence can be levelled at the prosecution. In Swingler the defendant had been convicted of raping a woman who, it was alleged, he had first pulled into some bushes having walked with her over a bridge. The police understood that the CCTV cameras on the bridge belonged to the British Transport Police who, when they enquired, told them that the cameras had not been working at the relevant time. The truth was that they had been working and would almost certainly have recorded the defendant and the woman as they crossed the bridge. The defendant asserted that the loss of the recording meant that his trial was an abuse of process. Rougier J said: “There had been evidence of potentially great significance but that evidence had disappeared. To us there seems to be no distinction in principle between that and the situation where perhaps there was one eye witness who could have told where the truth lay but had unfortunately died before a statement could be taken from him. The evidence simply is not there. The jury had to do their best with the evidence that was there. … Before there can be any successful allegation of an abuse of process based on the disappearance of evidence there has to be either an element of bad faith or at the very least some serious fault on the part of police or prosecution authorities before such an application can possibly succeed. … If it were otherwise every time a significant piece of evidence by accident were not available, a defendant facing a serious charge, which might be supported by other cogent evidence, would effectively be able to avoid it on this somewhat technical ground.” In this case there was other “cogent evidence” namely that of three witnesses, who heard the woman’s cries of distress, and the evidence of the police officer who, on arrival at the scene, saw the woman emerge from the bushes in an extremely distressed state. The defendant had admitted having sexual intercourse with the woman but claimed that it had been consensual.
Lack of malice or bad faith by the prosecution also proved an obstacle to an application for a stay in R v Howell [2001] EWCA Crim 3009. The defendant had been one of four people in a stolen car at the time it crashed killing one of the occupants. The defendant was charged with causing death by dangerous driving and it was his defence that he had been a passenger and not the driver. By the time of the trial, the vehicle had been destroyed in breach of the CPIA Code of Practice. The destruction prevented an examination of the front passenger door which might have provided scientific evidence to support the defendant’s assertion that it was the man who was killed in the crash, rather than himself, who had driven the car. The trial judge noted that the request to examine the car had only been made the day before the trial was due to start and that the destruction of the car had not been a deliberate attempt to frustrate the inquiry. A scientist, who had not herself examined the vehicle, gave evidence for the prosecution to the effect that the number of fibres taken from the front seat indicated that it was more likely that the defendant, rather than the man who was killed, had been the driver. An expert for the defendant gave evidence that it was unsafe to rely on the numbers of fibres found and that they did not necessarily point to the defendant as having been the driver. The defendant was convicted and appealed on the basis that the trial, in view of the destruction of the car, should have been stayed as an abuse of process. Penry-Davey J, giving the judgment of the Court of Appeal, noted that the trial judge had relied on “the absence of any evidence of manipulation by the Crown” and the fact that there was other prosecution evidence including alleged admissions and scientific evidence as to the position of the bodies. The Court of Appeal considered that the trial judge had been right to have rejected the application for a stay. “If there was any prejudice to the defence in the absence of the car it was not such … as in any way to prevent a fair trial. There was substantial evidence for the Crown quite apart from the fibre evidence, and the gaps in the evidence in so far as there were any resulting from the destruction of the car were fully explored in the course of the evidence and the judge directed the jury carefully and fairly on the matter.”
Superfluous evidence
Fault by the prosecution, short of maliciousness, which leads to the loss of evidence does not, of itself, render a trial an abuse of process. In Aylesbury Vale District Council v Khan [2005] EWHC 841 (Admin) the defendants were cab drivers who held private hire vehicle licences but which did not permit them to ply for hire. Council officers obtained evidence against them by approaching them in the street. However, the intended corroborative evidence from CCTV film was not available as it had been negligently wiped by council officials. The magistrates stayed the informations as an abuse of process. Sedley LJ, giving judgment on the prosecutor’s appeal, said: “It is plain that the council was in a perfectly good position to proceed on the evidence of the investigating officers and other material documentary evidence. They did not require the CCTV film in order to prove their case. … They were … under no independent obligation to furnish a CCTV film of their operation as part of their case. How they presented their case was a matter for them, and whether it would stand up was, in due course, to be a matter for the justices. The loss of film undoubtedly was a serious blunder from the council’s own point of view, but I am unable to accept that it was, in any sense going to abuse of process, a fundamental flaw in the case presented to the court. … In the absence of any suggestion that the film had been deliberately suppressed, the defendants had no special entitlement to rely on it.”
Necessary alteration of evidence
As discussed at the outset of this article, it will sometimes be necessary for physical or real evidence to be altered in some way as a necessary consequence of its expert examination on behalf of the prosecution. That does not involve any fault by the prosecution. Fault may arise, however, if the alteration, although innocent, was not necessary or if the defence could have been given the opportunity to be present to witness the alteration or if the original state of the evidence could have been preserved in photographic or other secondary form. There are two seemingly conflicting authorities on this (the latter very recent) but, as we shall see, they can in fact be reconciled.
In Director of Public Prosecutions v British Telecommunications plc (1991) 155 JP 869, the defendant was charged with using a trailer on a road with defective brakes. The vehicle had been involved in a fatal accident and the prosecution evidence was based on the findings of E, a vehicle examiner, who inspected the braking system after the accident. During the course of his examination E adjusted the braking mechanism. This had the effect that any subsequent examination by a defence expert would not reveal the situation as it was after the accident. Before any evidence was heard, defence submissions were made that E’s evidence should be excluded. The justices, in exercise of their powers under s 78 PACE excluded E’s evidence and, that being the only evidence as to the condition of the brakes, dismissed the case. The first issue on the prosecutor’s appeal was whether the justices had been right to deal with the application to exclude the evidence as a preliminary point. Watkins LJ held that the justices were wrong to have rejected the prosecution evidence before hearing that evidence. It was, he said, “not for justices to pre-empt considerations of that kind before they have heard any evidence whatsoever.” The magistrates could not determine whether the evidence was so prejudicial that it should be excluded if they denied themselves the opportunity of hearing it. The decision on that point was entirely in keeping with Vel v Chief Constable of North Wales (1987) 151 JP 510; sub nom Vel v Owen [1987] Crim LR 496, where Lloyd LJ, citing Lane LCJ in SFJ v The Chief Constable of Kent (June 17, 1982), pointed out that magistrates, unlike juries, were the judges of both fact and law and whereas during the course of a trial in a magistrates’ court there may be “all sorts of subsidiary or preliminary or incidental matters which they have to decide”, including questions of admissibility of evidence, “they decide those as separate issues, not as a trial within a trial.” It was suggested in Vel that the situation had changed with the advent of s 78 PACE. Lloyd LJ, however, decided that: “In relation to s 78 … magistrates’ courts should proceed as they have proceeded before. In some cases they should deal with an application to exclude evidence when it arises. In other cases they may leave the decision until the end of the hearing. It is impossible to lay down any general rule, other than that the object should always be to secure a trial which is fair and just to both sides.”
The substantive issue in British Telecommunications plc was whether, at whatever stage in the proceedings they made their decision, the magistrates were right to exclude E’s evidence. Again Watkins LJ concluded that they were wrong. He said: “The question of whether or not the evidence of [E] as to the condition of the vehicle, bearing in mind whether or not the defence was able to meet it, went to the weight of [E’s] evidence and not to its admissibility.” Unfortunately, that crucial sentence when read carefully does not make sense without either changing one or more of the words used or adding other words, probably before the word “went”. There is a clue as to the appropriate words which might be added to be found five sentences earlier in his judgment where Watkins LJ said: “It was for the justices to say, having heard the evidence from [E], whether or not they accepted that the vehicle was indeed in the condition he described and whether his conclusion as to the ineffectiveness of the braking system in that condition was sound.” Adding the words “was sound” to the sentence in which Watkins LJ gives his conclusion provides a sentence which can fairly confidently be taken as reflecting either what was actually said or what was intended. Hence his conclusion can be read as: “The question of whether or not the evidence of [E] as to the condition of the vehicle, bearing in mind whether or not the defence was able to meet it, [was sound] went to the weight of [E’s] evidence and not to its admissibility.” The headnote in the Justice of the Peace Reports interprets the sentence as meaning: “The question over the prosecution evidence and whether or not the defence was able to meet it, went to its weight and not to its admissibility.” A further problem in understanding the exact conclusion reached by Watkins LJ is that there is an apparent inconsistency in his judgment: a contradiction between what he said and what the justices said in their stated case which he recited. The justices said that “it was not necessary” for E to have adjusted the components in the braking system. They said that the “unnecessary element of [E’s] investigation had substantially prejudiced [D’s] ability to defend the case.” Watkins LJ, however, said that E’s alteration of a part or parts of the braking system in the course of his examination of them was “an exercise which … was necessary for the purpose of conducting his examination”. The justices, therefore, had based their decision to exclude the evidence on their belief, not having heard any evidence, that the alteration of the braking system was unnecessary whereas Watkins LJ delivered his judgment in the belief, having read E’s witness statement, that the alteration was necessary. This serves to highlight the correctness of the decision on the first point that the magistrates cannot form a view on the evidence without first hearing it. Watkins LJ formed his view, that the adjustment to the braking system was necessary, from E’s statement – evidence which was not given to the justices. Had Watkins LJ agreed with the magistrates that E’s alteration of the evidence was unnecessary his decision might well have been different. In the course of his supporting judgment, Otton J said, with reference to his analogy of a fire damaged building and/or corpse, that an examination which “necessarily” destroys or disturbs the evidence does not render the evidence of the pathologist or fire expert inadmissible. He went on to say that “the weight to be attached to such evidence may well be diminished by any unnecessary interference.” It follows that the court decided that, where an alteration to evidence is necessary in order to carry out an examination of that evidence, the findings of the examination are likely to be admissible but their weight might be affected by any inability of the defence, as a result of the alteration, to meet them. Where the alteration is unnecessary, it is still possible that the evidence will be admissible but the weight attached to the findings will be reduced by the unnecessary interference. This interpretation is entirely consistent with the purpose of s 78 which is to give the court the discretion to exclude unfair evidence.
It is to be observed that Otton J considered that “there was no impropriety in the way the examination took place” and that “there was no obligation to inform [the defence] that the examination was about to take place or to defer examination until their own expert was present.” Otton J merely thought that it would have been “prudent” for the police to have given the defence “the opportunity to request to be present at the time of the examination should they desire to do so.” In so far as that part of the Court’s judgment formed part of the ratio decidendi it is no longer good law in the light of the CPIA Code of Practice and the contrary view taken in the recent case of Leatherland and Pritchard v Powys County Council [2007] EWHC 148 (Admin).
In Leatherland, ante, the first defendant was a farmer who sent 72 sheep to market via the second defendant who was a haulier. On arrival at the market the sheep were seen by the prosecutor’s trading standards (animal health) officer and by a vet affiliated to DEFRA. As a result of the vet’s assessment of the physical condition of the sheep all but 3, which were fit for sale, were slaughtered and the carcasses were destroyed without either defendant being given the opportunity to inspect either the live sheep or the carcasses. The farmer was convicted of permitting unnecessary suffering to 3 of the sheep, contrary to s 1(1) of the Protection of Animals Act 1911, and of offences of permitting 66 sheep to be exposed for sale contrary to the Welfare of Animals at Markets Order 1990 and the Animal Health Act 1981. The haulier was convicted of transporting 38 of the sheep when they were not fit for the intended journey, contrary to the Welfare of Animals (Transport) Order 1997. The defendants appealed against their convictions on the basis that the trial should have been stayed as an abuse of process or, alternatively, that the evidence of the vet as to the condition of the sheep should have been excluded given that, as the carcasses had been destroyed, the defence expert could not examine them.
Owen J determined that “a representative selection [of the sheep] could and should have been retained for a sufficient period for the appellants to be alerted to the results of [the vet’s] examination, and to be afforded the opportunity to examine the carcasses or live sheep for themselves and/or to arrange for an examination by their own veterinary expert, and … in failing to take such steps the trading standards officers were in breach of their obligations under the [CPIA Code of Practice]. Their failure was not remedied by making a photographic record because although photographs were taken, [they] were found by the justices to be inconclusive … and were therefore of no evidential value.” In contrast to the view taken in British Telecommunications plc, ante, Owen J considered that giving the defence the opportunity to examine the evidence for themselves before it was altered or destroyed was not just “prudent” but a requirement. Clearly retaining “a representative sample” of suffering sheep would involve keeping alive at least one of the sheep which was suffering the most. Had it been necessary to have slaughtered such sheep to end their suffering there is no reason to suppose that the Court would have been critical provided that all possible was done to retain a record of the evidence. Had the photographic evidence been better, possibly including video evidence, it could have shown not only the poor condition of the sheep but illustrated why it was thought necessary that they be slaughtered without delay. Owen J had effectively concluded that, unlike in the case of British Telecommunications plc, there was fault on the part of the prosecution.
Owen J was well aware of the authorities and of Ebrahim in particular. He said: “In arriving at their conclusions that ‘the sheep were both unfit for sale and for transportation”, the justices relied solely on the evidence given by [the vet] as to his examination of the sheep. … But his evidence was in issue; and the veterinary surgeon called on behalf of the appellant questioned his methodology. … These were wholly exceptional circumstances, the sole issue being the condition of the sheep when delivered to market, and the prosecution case being reliant solely on the evidence of [the vet]. Basic considerations of fairness required that the appellants be given the opportunity to inspect a representative selection of the sheep or their carcasses. The only way in which the position of the appellants could have been properly protected in the trial process, would have been by excluding the evidence of [the vet] under section 78 on the grounds that it would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. If excluded there would have been no case to answer. … In my judgment the justices ought to have acceded to the application to stay the proceedings.”
Those prosecuting the case may not entirely agree with the outcome of the appeal. In so far as it conflicts with British Telecommunications plc the cases are clearly reconcilable by the intervening introduction of the CPIA Code of Practice. The prosecution may take issue, however, with the finding of Owen J that the prosecution case was “reliant solely” on the evidence of the vet. On one reading of the facts as set out in the judgment that is not so. The case stated says that both the animal health officer and the vet were present when the sheep were unloaded and that they were concerned as to their health. They apparently both noted that the sheep “were thin and some required assistance from drovers to regain their footing on their journey to the pens.” There was, therefore, evidence from someone other than the vet as to unfitness to travel if not as to unnecessary suffering. Owen J, however, cannot be criticised for his judgment since in considering an appeal by way of case stated he was bound by the facts stated therein. Although the case stated recounted the observations of the animal health officer as well as those of the vet, it went on to say that “each sheep was assessed solely” by the prosecution’s vet and that the vet for the defendants “confirmed that it was necessary to physically examine each sheep to make such an assessment”. Furthermore the justices accepted that “individual physical examination of the live animal was the best way of assessing the condition of the sheep.” The use of the word “confirmed” (perhaps wrongly used) implied that there was no dispute that the only assessment of the condition of the sheep of evidential value was the physical one made by the vet.
Providing alternative evidence
It is now clear that although situations where a loss of evidence will result in a case being stayed as an abuse of process of the court are rare they can quite easily happen if the prosecution does not take care to not only follow the CPIA Code of Practice but to make sure that it is done in a way that gives the outcome intended. Paragraph 5.1 of the Code makes specific reference to the possibility of material being “photographed … if the original is perishable”. Where that is done it is necessary to ensure that the photographs are of good quality and that they properly and fairly show the evidence. In these days of digital cameras and instant photographs there is no reason why a photographic record of, for example, injuries cannot be made quickly without delaying treatment (or, if necessary slaughter of an animal). The results of the photography will be available before the real evidence is altered or destroyed. As part of the evidence in Leatherland was the unsteadiness of the animals on their feet that would have been captured much more effectively by an additional video recording than by still photographs alone. Such evidence may also have countered the defendants’ assertion that the condition of the sheep could only be established by physical examination. It should be remembered that it was not necessary for the prosecution to establish the exact condition of the sheep or whether they were suffering from any particular underlying ailment. The prosecution only had to prove that the condition of the sheep would have been sufficiently poor at the relevant time as to e.g. render them unfit for the journey they had endured. Good photographic evidence might, in such cases, also help to rebut any defence that the condition of the sheep was due to trauma suffered on route which had not been foreseen at the outset of the journey. A wound infested with maggots, for example, would not have been caused by the transporting vehicle allegedly swerving to avoid an accident.
Where evidence is perishable and it cannot be retained in any other form (such as photographically) it is, therefore, essential that whenever possible potential defendants are given the opportunity to examine it before its character changes or it is altered. In Leatherland, the expert examination of the evidence was concluded by the prosecution without the loss, destruction or alteration of the evidence. The evidence at that stage remained intact and could still have been examined by, or on behalf of, the defendants had they been given the opportunity to do so. It was not helpful to the prosecution’s case that some of the sheep were not slaughtered until the following day and hence could have been made available for examination by the defendants’ expert even in a live state. It would not be right for a prosecuting authority to countenance the prolonging of unnecessary suffering but, in a case such as Leatherland, it is necessary to strike the right balance between regard for the welfare of the animals concerned and fairness to the potential defendants. A combination of a clear photographic record and the opportunity for the defendant to examine some of the live sheep or at least the carcasses would have made all the difference to the admissibility of the evidence and would not have been deleterious to the welfare of the sheep.
In the end it all comes down to fairness.
VICTOR SMITH