DPP v Fell
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Mrs Justice Gloster |
| Judgment Date | 30 January 2013 |
| Neutral Citation | [2013] EWHC 562 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4127/2012 |
| Date | 30 January 2013 |
[2013] EWHC 562 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Gross
Mrs Justice Gloster
CO/4127/2012
Mr J Hallam (instructed by CPS) appeared on behalf of the Claimant
Mr R Archer (instructed by Sephton Lee Wilkinson) appeared on behalf of the Defendant
The appellant, the Director of Public Prosecutions, appeals by way of case stated against the decision of the Chorley Magistrates' Court given on 18 January 2012 to stay as an abuse of process the prosecution of the respondent Mr Fell for an offence of battery contrary to section 39 of the Criminal Justice Act 1988. The Magistrates' decision and their reasoning are encapsulated in the case stated dated 2 April 2012 ("the case").
The facts can be shortly summarised. The respondent was charged with an offence of battery allegedly committed on 30 September 2011 at or in the hallway immediately outside the White Bull Public House. The complainant was the respondent's partner or former partner, it matters not which. The principal issue was whether the complainant fell, having attacked the respondent, or whether she was pushed by the respondent. Apart from the complainant and the respondent, the incident was witnessed, it is said, by the landlady of the public house and by a friend of the complainant. Both provided witness statements which I am content to take as broadly supporting the complainant's account.
The public house had closed circuit television ("CCTV"). It is known that the incident was captured at least to some extent on the CCTV. On the morning following the incident that CCTV footage was seen both by a police officer, PC Roxby, and by the landlady. Again, in very general terms, I am content to take it that PC Roxby's witness statement of what he saw on the CCTV provides broad support for the respondent, whereas the landlady's summary of the CCTV was that it matched her account of the incident as given in her statement, and thus is broadly supportive of the complainant's allegations.
In my judgment it is fair to say that none of these accounts is determinative and all are manifestly capable of being challenged in cross-examination, with or without the CCTV. Obviously, the police constable's witness statement provides important evidence of what was shown on the CCTV. Equally obviously, it is not and cannot of itself and without more be conclusive.
Unfortunately, the CCTV footage could not be downloaded on 1 October 2011. Arrangements were made for PC Roxby to return and collect it and the landlady agreed to keep it for a given period. Unfortunately, when PC Roxby did return, the footage had been lost, despite the landlady's best efforts to retrieve it. For the avoidance of doubt, PC Roxby returned within the period agreed with the landlady.
In the circumstances, the Crown, as the case records, had failed to comply with the duty cast on investigators under the CPIA of 1996 and the accompanying statutory code of obtaining and preserving relevant material. It is, however, also plain that this failure occurred without negligence, let alone bad faith on the part of either the police or the CPS. Those are the facts which appear from the case.
It may be noted that this is not one of those cases where the contents of the CCTV footage are wholly speculative. There is evidence, albeit somewhat divergent evidence, as to what it contained from PC Roxby and the landlady, as I have already recounted. I return to that consideration in due course.
Finally, there are, I venture to say wholly unsurprisingly, some inconsistencies with the accounts between the various witnesses, both of the incident and as to the CCTV. That is rather to be expected in a fast-moving, unexpected incident of short duration.
The Magistrates' central reasoning was set out in paragraph 24 of the case as follows:
"We have heard an application by the defence for a stay of these proceedings on the basis that there has been an abuse of process due to the fact that the CCTV video evidence has unfortunately been erased by the public house and therefore the Crown has not complied with its duty to obtain or retain this relevant evidence, although we accept that the destruction of the videotape was not the fault of the police.
We have had full regard to the arguments set out in both the defence skeleton argument and the response from the prosecution. We have also considered the general principles outlined in both case law guidance and other supporting texts and also considered the oral representations made today by the parties. We are aware that if there has been a breach of the obligation to obtain or retain the relevant material it is necessary for us to decide whether the defence have shown, on the balance of probabilities that, owing to the absence of the relevant material, the defendant would suffer serious prejudice to the extent that a fair trial could not take place. That is that continuance would amount to a misuse of the process of the court.
We are also aware that we must bear in mind when moving on that question that the trial basis itself is equipped to deal with the bulk of the complaints on which applications for a stay are founded.
We have also been referred to Rule 1.1 of the Criminal Procedure Rules 2011. We are reminded in the judgment in the case of Feltham that the circumstances in which any court will be able to conclude with sufficient reasons that a trial of the defendant will inevitably be unfair are likely to be few and far between.
We have been referred, amongst other cases, to Medway in 2000 and the commentary in Blackstone's that the clear indication of that judgment is that an accused is disadvantaged only if the absence of the evidence might have made a difference to the outcome of the trial. In this case, PC Roxby saw the CCTV evidence and made a statement which differs in material respects with the statement by Grace Chapman whilst agreeing in material respects with the evidence of Erin Fell. PC Roxby's statement also differs from the statement of Barbara Edwards, the landlady of the White Bull, who also saw the CCTV evidence as well as witnessing the incident. The evidence of Rebecca Hargreaves...
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...the absence of a video film or fingerprints or DNA material is likely to hamper the prosecution as much as the defence. 68 Gross LJ in DPP v Fell [2013] EWHC 562 (Admin) at [15]), observed: […] the burden of proof is on the party seeking a stay; the standard of proof is a balance of probab......
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...the prosecution as much as the defence.” [127] This approach was also applied in the later case of Director of Prosecutions v Fell [2013] EWHC 562 Admin. 33 The Defendants’ Case [128] The defendants’ case in broad outline has been summarised above at paragraph [3]. In the defendants’ skelet......
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...he referred to two relevant authorities: R v Feltham Magistrates' Court, ex parte Ebrahim [2001] EWHC 130 (Admin) and R v Fell [2013] EWHC 562 (Admin). He observed that it was open to the defence to draw the jury's attention to the other CCTV footage which they submitted supported the def......
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...I remind myself that a stay of criminal proceedings is always an option of last resort. According to Gross LJ in DPP v. Fell [2013] EWHC 562 (Admin) at paragraph 15, the grant of a stay: “… is, effectively, a measure of last resort. It caters for and only for those cases which cannot be ac......