Missing Evidence in UK Law

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.

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.

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.

The price of securing consistency and predictability is a lack of flexibility that may well result in "hard" decisions in individual cases, but that is not a justification for imposing an obligation on the Secretary of State to conduct a preliminary check of all applications to see whether they are accompanied by all of the specified documents, to contact applicants where this is not the case, and to give them an opportunity to supply the missing documents.

Fourthly, the grant of the stay in a case such as this is exceptional. It caters for and only for those cases which cannot be accommodated with all their imperfections within the trial process. It is of course a very different situation where evidence has gone missing through some serious culpability or bad faith on the part of the prosecutor or investigator, but that is not this case.

Taken overall, the Evidential Flexibility process instruction is demonstrably not designed to give an applicant the opportunity first to remedy any defect or inadequacy in the application or supporting documentation so as to save the application from refusal after substantive consideration.

UK Border Agency caseowners employ a measure of flexibility when considering PBS applications. For example, caseowners operate a system which allows them to contact applicants to request further documentation or clarification where appropriate. In addition a validation stage is being trialled whereby applicants are contacted where mandatory evidence is missing and given the opportunity to provide it before their application is rejected.