Destroyed or Lost Evidence and Abuse of Process
| Author | John Arnold Epp |
| DOI | 10.1177/136571279900300302 |
| Published date | 01 July 1999 |
| Date | 01 July 1999 |
| Subject Matter | Article |
Destroyed
or
lost
evidence
and
abuse
of
process
By
John
Arnold
Epp
Cayman
Islands
Law
School
Ii
he question
of
lost evidence in
the
context
of
criminal
proceedings
has been explored extensively in
recent
decisions
of
the
appellate
courts in England!
and
Canada.' Often
the
issue has arisen as a
consequence
of
inquiries
made
pursuant
to
the
prosecution's
duty
to
disclose" evidence to
the
defence at
pretrial
stages. a
duty
which
has
been
revised recently
in
England."
The general body
of
case law reveals two basic approaches to
the
question
of
lost evidence
and
potential
remedies. The first approach
can
be called a basic
or 'technical' approach. In
that
process.
the
court
focuses its inquiries
and
analysis
within
the
narrow
confines
of
the
precise facts." Then it crafts a
decision
wherein
it refers to notions
of
fairness before concluding
with
the
key facts
and
aliteral
interpretation
of
the
rules
of
evidence" or
the
Police
and
Criminal Evidence Act 1984
(PACE).7
The second approach.
which
is
gaining
~r
example,
Beckford
(1994) [1996]1 Cr App R 94
(CA).
I :
;,~r
example,
Carosella
[1997]1 SCR80
and
La[1997J 2 SCR680.
3Ward (1993) 96 Cr App R I, [1993]1 WLR 619, [1993J2 All ER 577
(CA);
Davis
(1993) 97 Cr App R
110, [1993]2 All ER643
(CA);
Keane
(1994) 99 Cr App R I, [1994]2 All ER478
(CA);
Mills and
Poole
[1997] 3 WLR 458,
[1998J
1 Cr App R 43
(HL);
Brown
(Winston)
[1998]1 Cr App R 66, 67
(HL);
and,
from Canada,
Stinchcombe
[1991) 3 SCR326, 68 CCC(3d) 1;
O'Connor
[1995]4 SCR411, 103 CCC
(3d) 1.
4Criminal Procedure
and
Investigations Act 1996.
c.25
(CPIA).
The Act
mandates
aprocess
of
disclosure by
the
prosecution
to
the
defence. Initially disclosure is
limited
to
the
Crown's case
and
unused
material
thought
by
the
prosecutor to
undermine
its case (s. 3).
Further
disclosure
is available (s,7)
if
the
defence provides a
statement
outlining
its
position
(s.5). Collection,
preservation
and
disclosure of evidence by
the
police to
the
prosecution
is addressed in a Code
of
Practice (SI 1997/1033). The
primary
assessment of
the
relevance
of
evidence,
and
the
decision
regarding
material
to be forwarded to
the
prosecutor, rests
with
the
police (paras 2.1,
7.1).
5Supran. 1 at 102.
6 For a
general
discussion see A. Keane, The
Modern
Law of
Evidence
(4th edn) (Butterworths:
London, 1996) 39.
7
PACE
c. 60. s. 78(1).
THE
INTERNATIONAL
JOURNAL
OF
EVIDENCE
&
PROOF
165
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