The court considered how cases should be handled where video evidence of relevance to a defendant’s case had been destroyed, and the defendant asserted abuse of process.
Held: The discretion to stay proceedings should be employed only in exceptional circumstances. Two categories applied: where the defendant could no longer receive a fair trial, and where it would be unfair to try the defendant. The defence should notify the prosecution at an early stage if any such evidence was required to be preserved.
Brooke LJ pointed out that a judgment of the fairness of proceeding applied both to the prosecution and the defence. As to the assessment of fairness where relevant evidence was missing he said: ‘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 conviction, then a trial should proceed, leaving the defendant to seek to persuade the jury or justices 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.’
Mr Justice Morison Lord Justice Brooke
Times 27-Feb-2001,  1 WLR 1293,  2 Cr App R 23,  EWHC Admin 130,  RTR 7,  1 All ER 831,  Crim LR 741
Cited – Regina v Parker CACD 30-Jan-2003
The defendant appealed a conviction for causing criminal damage by fire with risk to life. The evidence was that no explanation existed other than that the fire had been started deliberately. She said she had been trying to light a cigarette in bed. . .
Cited – Phipps, Regina v CACD 14-Jan-2005
The appellant had been convicted of driving with excess alcohol. After complaints by the injured victim’s family he was further prosecuted for dangerous driving. He now appealed his conviction, having pleaded guilty when the judge failed to find an . .
Cited – Director of Public Prosecutions v Wood; Director of Public Prosecutions v McGillicuddy Admn 19-Jan-2006
Each defendant sought disclosure of materials concerning the intoximeter instruments, having been charged with driving with excess alcohol. The defendants said that the meters were inaccurate and that the manufacturers were in effect part of the . .
Cited – Ali, Altaf v Crown Prosecution Service, West Midlands CACD 22-Mar-2007
The defendant was first arrested in 1997, but only re-arrested in 2004. He complained that the delay affected his right to a fair trial within a proper time. The judge accepted this but the trial proceeded, the judge denying a claim of abuse of . .
Cited – Taylor v Regina CACD 20-Dec-2013
The defendant appealed against his conviction, for sex offences some 33 years earlier, saying that the convictions had been unfairly obtained. Evidence had been available since 1980, but a decision not to prosecute had been taken.
Held: ‘the . .
Lists of cited by and citing cases may be incomplete.
Criminal Evidence, Criminal Practice
Updated: 23 May 2022; Ref: scu.135561