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Abuse of Process for Lost Evidence: Alive and Kicking
Colin Wells discusses the recent case of ANP  EWCA Crim 1111 in which the Court of Appeal (Criminal Division) considered the circumstances of when a case might be stayed as an abuse of process when important evidence has been lost or destroyed.
The remedy to stay proceedings as an abuse of process is alive and kicking as illustrated by the Court of Appeal Criminal Division decision in ANP  EWCA Crim 1111, which raised issues of general importance as to the approach to be taken to an application to stay a prosecution as an abuse of the process on the basis that evidence or exhibits seized by the police have been lost.
Where evidence has been lost or destroyed and the defence has been deprived of a potential opportunity to advance its case, the court has a discretion to stay proceedings. The court, when considering an abuse application based on the non-availability of evidence, has to consider the relevance of the material, whether it should have been preserved, why it was destroyed (in terms of bad faith, serious fault or incompetence), and alternative trial remedies. All these issues are dealt with, and guidance given, in R v Feltham
R v ANP
The Vice President of the Court of Appeal Criminal Division, Lord Justice Holroyde, gave the lead judgment in R v ANP examining an application by the prosecution for leave to appeal, pursuant to section 58 of the Criminal Justice 2003, against a terminating ruling by a judge in a rape and sexual assault trial
The prosecution case alleged that the defendant (‘D’) took advantage of the complainant (‘C’), who was highly intoxicated, by first kissing and touching her, and then vaginally raping her. CCTV footage was available covering the former incident, but not the latter. C herself gave an account in a video recorded interview alleging rape The defence case was that C consented, or was honestly believed by D to be consenting, to such activity as took place, which comprised only kissing and cuddling and brief oral sex by D on C, with no vaginal penetration.
The prosecution relied upon CCTV footage showing that C was plainly so intoxicated that she was not capable of consenting, and could not honestly be thought to be consenting, to any sexual activity. Evidence was available as to the dishevelled and distressed state in which C left the premises and as to the manner of her speech shortly after the relevant events. The defence rely on that combination of evidence as rebutting the prosecution case as to C's level of intoxication.
D further relied on evidence that analysis of penile swabs taken from him revealed no cellular material matching C; and on entries in C's medical records, which may be relevant to her reliability and credibility as a witness.
C was seen by the police shortly after the events. Samples of her blood and urine were taken, as were vaginal swabs. Her underwear was kept for examination. These items were packaged and refrigerated as necessary. A month or so later, there was an internal re-organisation which should have involved the items being moved to new places of storage. Somewhere in that process, they were all lost. The fact that they have been lost was made known to the defence soon after the case had been sent to the Crown Court for trial. In addition, body-worn camera footage was not retained, so that there were no contemporaneous images of the premises in which the events occurred, and no video recording of C's first complaint.
It was submitted on behalf of D that the prosecution should be stayed as an abuse of the process on the ground that he could not receive a fair trial. The lost samples and underwear were highly relevant to the central issues of C's level of intoxication, credibility, consent or belief in consent, and vaginal penetration. Reliance was placed on the decision of the Court of Appeal in R v Ali  EWCA Crim 691.
The judge ruled that D could not have a fair trial and accordingly directed that the indictment should be stayed. He regarded the circumstances as being similar to those in R v Ali, with no significant evidence to support C's own "confused and limited recollection". The judge concluded that he could not give directions which would mitigate the prejudice suffered by D as a result of the loss of the various items.
In the Court of Appeal, the prosecution argued that the judge's ruling was wrong in law and that his decision should be reversed so that the trial may proceed. Reliance was placed on the decision of the Court of Appeal in R v PR  2 Cr App R 22. It was submitted that the judge had fallen into error in particular because, having considered what had been lost evidentially, he did not sufficiently go on to consider whether what still remained was evidentially sufficient for there to be a fair trial.
The Court emphasised that the burden is on an accused to show on the balance of probabilities that he is entitled to a stay on grounds of abuse of process, that it was impossible for him to have a fair trial. It also restated the principle that a stay of criminal proceedings is always an exceptional remedy: see Hamilton v The Post Office  EWCA Crim 577. As Gross LJ put it in DPP v Fell  EWHC 562 (Admin) at , the grant of a stay
"... is, effectively, a measure of last resort. It caters for and only for those cases which cannot be accommodated with all their imperfections within the trial process".
The Court observed as follows:
 The police were plainly under a duty to preserve the samples and underwear which they had taken. A stay of proceedings is not, however, to be granted as a means of punishing failure to comply with that duty.
 Where a stay is sought on grounds arising from the loss of evidence or exhibits, the starting point for consideration has long been R (on the application of Ebrahim) v Feltham Magistrates' Court in which Brooke LJ stated the applicable principles. First, at  he said:
"Two well-known principles are frequently invoked in this context when a court is invited to stay proceedings for abuse of process:
(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.
At  he said:
(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 a 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."
In R v Ali, the facts were that the accused had been charged with sexual offences alleged to have been committed more than a decade earlier against two girls then aged 13. There had been a long delay in prosecution, in the course of which a number of relevant documents had been destroyed or lost. In particular, each of the complainants had made a claim for compensation from the Criminal Injuries Compensation Authority. Only one of the claim forms was available by the time of trial. It contained what the girl in question admitted to be a number of lies. The claim form of the other girl had been lost. The judge refused an application for a stay.
In that case the Court of Appeal had quashed the convictions. Moses LJ stated at :
"But in considering such powers to alleviate prejudice, Brooke LJ (at para 27) emphasised the need for sufficiently credible evidence, apart from the missing evidence, leaving the defence to exploit the gaps left by the missing evidence. The rationale for refusing a stay is the existence of credible evidence, itself untainted by what has gone missing."
The court has also referred to what it described as a “significant difficulty” in respect of the trial judge’s directions on speculation. The Court quashed the convictions due to the combination of the loss of material evidence, the unsatisfactory evidence as to how the complaints were first made, and the terms of the directions to the jury which collectively caused doubt as to the safety of the convictions.
More recently, in R v D  EWCA Crim 1592, Treacy LJ, giving the judgment of the court, stated the relevant principles as follows at :
"In considering the question of prejudice to the defence, it seems to us that it is necessary to distinguish between mere speculation about what missing documents or witnesses might show, and missing evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case. The court will need to consider what evidence directly relevant to the appellant's case has been lost by reason of the passage of time. The court will then need to go on to consider the importance of the missing evidence in the context of the case as a whole and the issues before the jury. Having considered those matters, the court will have to identify what prejudice, if any, has been caused to the appellant by the delay and whether judicial directions would be sufficient to compensate for such prejudice as may have been caused or whether in truth a fair trial could not properly be afforded to a defendant."
The principles have most recently been reiterated by the Court of Appeal in R v PR. Fulford LJ, giving the judgment of the court, stated at :
"It is important to have in mind the wide variations in the evidence relied on in support of prosecutions: no two trials are the same, and the type, quantity and quality of the evidence differs greatly between cases. Fairness does not require a minimum number of witnesses to be called. Nor is it necessary for documentary, expert or forensic evidence to be available, against which the credibility and reliability of the prosecution witnesses can be evaluated. Some cases involve consideration of a vast amount of documentation or expert/forensic evidence whilst in others the jury is essentially asked to decide between the oral testimony of two or more witnesses, often simply the complainant and the accused. Furthermore, there is no rule that if material has become unavailable, that of itself means the trial is unfair because, for instance, a relevant avenue of enquiry can no longer be explored with the benefit of the missing documents or records. It follows that there is no presumption that extraneous material must be available to enable the defendant to test the reliability of the oral testimony of one or more of the prosecution's witnesses. In some instances, this opportunity exists; in others it does not. It is to be regretted if relevant records become unavailable, but when this happens the effect may be to put the defendant closer to the position of many accused, whose trial turns on a decision by the jury as to whether they are sure of the oral evidence of the prosecution witness or witnesses, absent other substantive information by which their testimony can be tested."
The Court added that the question of whether the accused can have a fair trial will depend on the particular circumstances of the case, the focus being on the nature and extent of the prejudice to him. A careful judicial direction will in many instances ensure the integrity of the proceedings:
"The judge's directions to the jury should include the need for them to be aware that the lost material, as identified, may have put the defendant at a serious disadvantage, in that documents and other materials he would have wished to deploy had been destroyed. Critically, the jury should be directed to take this prejudice to the defendant into account when considering whether the prosecution had been able to prove, so that they are sure, that he or she is guilty. ..."
Having reviewed those authorities, the court allowed the Prosecutor’s appeal, reversed the terminatory ruling, and observed that the Judge in staying proceedings had fallen into error:
. “First, we cannot agree that the loss of the samples and the underwear left "an evidential vacuum". The judge was wrong to make his decision on the basis that there was such a vacuum. There was certainly an absence of some evidence, which should have been available. We can well understand why the judge referred more than once to potential weaknesses in the evidence which remained available to the prosecution. But those possible weaknesses would primarily affect the prosecution as the party which bears the burden of proof. The burden of proof at trial is, in our view, always an important factor to keep in mind when considering an application to stay in circumstances such as these.
. In any event, the simple fact is that there remains the evidence of C, the CCTV footage, the evidence of those who saw and spoke to C very soon after the events, and the potential for D himself to give and/or to call evidence if he chooses. It is not a case in which there has been any culpable delay by the prosecution. Nor is it a case in which D was first questioned long after the material time. In those circumstances, it cannot be said that there is such an evidential vacuum as to make a fair trial impossible. Once one eliminates any question of using the application to stay as an inappropriate means of registering disapproval of police negligence, it seems to us that the overall position is broadly the same as it would have been if, for example, C had not made her allegations until some considerable time after the events, having in the interim washed both herself and her clothing.
. Secondly, it seems to us that the rhetorical question posed by the judge at page 6E of his ruling reveals an error of principle in his approach. The answer to the dilemma which the judge felt is that the jury can and should be directed in conventional terms to try the case on the basis of the evidence, and not to speculate or guess about anything not shown by that evidence. In addition, as the court said in R v PR (and as the trial judge had done in that case) the jury can and should be directed that the loss of relevant material may have put D at a disadvantage, and that they should take that into account in deciding whether the prosecution had made them sure of guilt. The precise terms of that direction will depend on the evidence and issues at trial, and the judge will no doubt wish to discuss them with counsel.
. Thirdly, in his conscientious efforts to formulate the test he should apply, the judge, fell into error when he said that if evidencehas “the real potential to go to the very issues which the jury must resolve”, its loss "must inevitably cause" a level of unfairness that the trial process cannot remedy. As the case law to which we have referred shows, there must be a case-specific assessment which focuses on the importance of the missing evidence in the context of the case, and the nature and extent of any prejudice caused to the accused by its loss. We bear very much in mind the submission on behalf of D that the judge's use of language may have been slightly loose, and that he was not purporting to lay down any principle applicable to all cases. Nonetheless, considering that passage from his ruling in conjunction with the earlier passage we have cited, it seems to us that the judge did fall into error.
. In the present case, the relevant material was lost before it had been sent for analysis. It is therefore unknown what investigation of it would have revealed. It is unknown whether meaningful results would have been recoverable from all or any of the analysis. If they had been, it is not known whether those results may have been helpful to D, may have been helpful to the prosecution, or may simply have been neutral. But what remains available is a body of evidence and material which can be deployed by D in cross-examination of C. D also remains able, if he wishes, to give his own account of events, with the advantage that the one piece of scientific evidence which was obtained is favourable to him, and without any risk of other scientific evidence supporting the prosecution case. In addition, D is able, if he wishes, to adduce other evidence, including expert evidence.”
Colin Wells had written and lectured extensively on abuse of process. A fourth edition of his book, Abuse of Process, is to be published by Oxford University Press in May 2023.
 See ‘Lost and Destroyed Evidence: The Search for a Principled Approach to Abuse of Process’—S Martin (2005) 9 E&P 158; Victor Smith, ‘Lost, Altered or Destroyed Evidence’ (2007) 171 JPN 556. In relation to destruction of evidence by state agencies and any breach of Article 6, see Sofri v Italy  Crim LR 846 (a murder trial in which the deceased’s clothing, bullets from the deceased’s body and the getaway car were all missing) and Papageorgiou v Greece (2004) 38 EHRR 30 (destruction of forged cheques).