Lost and Destroyed Evidence: The Search for a Principled Approach to Abuse of Process

AuthorSarah Martinsp
DOI10.1350/ijep.2005.9.3.158
Publication Date01 July 2005
Date01 July 2005
SubjectArticle
158 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
LOST AND DESTROYED EVIDENCE: A PRINCIPLED APPROACH TO ABUSE OF PROCESS
I
(2005) 9 E&P 158–182
Lost and destroyed
evidence: The search for
a principled approach to
abuse of process
By Sarah Martin*
Solicitor, Freshfields Bruckhaus Deringer, London
Abstract This article examines the situation where evidence which the police
were under a duty to obtain or retain, and which could have assisted the
defendant’s case at trial, is lost or destroyed. Its particular focus is the approach
that should be followed when lost or destroyed evidence forms the basis for an
application to stay proceedings as an abuse of process. The decision in R (on the
application of Ebrahim) v Feltham Magistrates’ Court; Mouat v DPP was a significant
advance in this regard, for it clarified that the two categories of abuse case—
cases where the defendant cannot receive a fair trial (Category 1) and cases
where it would be unfair for the defendant to be tried (Category 2)—are analytically
distinct, from which it follows that the defendant’s right to a fair trial can be
violated in the absence of any bad faith on the part of the police. An examination
of the cases post-Ebrahim, however, reveals the same regrettable tendency that
was evident in the pre-Ebrahim cases, namely a tendency to use the absence of
bad faith as a justification for not staying the proceedings in a Category 1 case.
On a more principled approach, it is the effects of the conduct of the police with
which the court should be primarily concerned when considering whether the
defendant can receive a fair trial, and the nature of this conduct which should
be the focus when determining whether it would be unfair for the defendant to
be tried.
n contrast to the European model in which an independent judge or
magistrate supervises a police investigation in an inquisitorial manner,
the English criminal justice system affords the police almost complete
* Email: sarah.martin@freshfields.com. I would like to thank Professor Colin Tapper for his
guidance and for reading and commenting on earlier drafts of this article. I am also grateful
to the two anonymous reviewers and to the Editor for the points they brought to my attention.
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 159
LOST AND DESTROYED EVIDENCE: A PRINCIPLED APPROACH TO ABUSE OF PROCESS
control over the investigation stage of a criminal offence. This control, however,
carries with it an obligation to obtain or retain material which may be relevant to
their investigation so that in due course it can be disclosed to the defence. Though
initially governed by the common law, the scope of this obligation is now covered by
the Code of Practice1 issued pursuant to s. 23 of the Criminal Procedure and
Investigations Act 1996 (CPIA).
This article analyses the position where the police have lost or destroyed evidence
which they were under a duty to obtain or retain, and which could have had a
bearing on the defendant’s case at trial. How such a failure can lead to prejudice
being caused to the defence can easily be comprehended. But unlike improperly
obtained evidence which can be excluded by the trial judge if admission of the
evidence would destroy the fairness of the trial, there is sometimes no way of avoiding
prejudice to the accused caused by the loss or destruction of evidence other than by
staying the proceedings for abuse of process.
The first detailed consideration of the approach that should be followed when an
abuse application is founded on lost or destroyed evidence was given by the Divisional
Court in R (on the application of Ebrahim) v Feltham Magistrates’ Court; Mouat v DPP.2 In
that case, the court recognised that the discretion to stay proceedings as an abuse of
process in this context extends to situations where there has been no improper
conduct on the part of the police. Improper conduct, or more specifically, ‘serious
misbehaviour’, was stated as being relevant only to the question whether it would be
unfair for the defendant to be tried, not to the question whether the defendant could
receive a fair trial. Nevertheless, as this article seeks to show, the same preoccupation
with the motives of the police and relative lack of concern over possible prejudice
caused to the accused is as much evident in the cases decided post-Ebrahim as it was
in those which preceded it.
The seminal authorities
Until relatively recently, the leading case on this subject was R v Beckford.3 In that
case the appellant crashed his car into a concrete block and killed his front-seat
passenger. He was charged with causing death by careless driving when under the
influence of drink or drugs contrary to s. 3A of the Road Traffic Act 1988. He was not,
however, charged until six months after the event, by which time the towing company
which had been storing the vehicle had disposed of it, the police having failed to
1 Brought into force by the Criminal Procedure and Investigations Act 1996 (Code of Practice)
(No. 2) Order 1997 (SI 1997 No. 1033).
2 [2001] EWHC Admin 130, [2001] 1 WLR 1293.
3 [1996] 1 Cr App R 94, CA.

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