R v Feltham Magistrates Court, ex parte Ebrahim ; Mouat v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE |
| Judgment Date | 21 February 2001 |
| Neutral Citation | [2001] EWHC 130 (Admin) |
| Docket Number | Case Nos: CO/345/2000 & CO/4001/2000 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 February 2001 |
[2001] EWHC 130 (Admin)
Lord Justice Brooke and
Mr Justice Morison
Case Nos: CO/345/2000 & CO/4001/2000
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEENS BENCH DIVISION
Ian Wise (instructed by Bhatia Best for Mr Mouat)
Stuart Clarkson (instructed by CPS for the DPP)
This is the judgment of the court.
Introductory
On 12th January 2001 we heard an application by Mohammed Rafiq Ebrahim for judicial review of a decision by District Judge Day, who was sitting as a stipendiary magistrate at Feltham Magistrates' Court on 31st August 1999, when he dismissed an application by Mr Ebrahim for a stay of proceedings against him for common assault on the grounds of abuse of process. We will call this case "the Feltham case".
On 16th January 2001 we heard an appeal by Paul Alexander Mouat by way of case stated from a decision of the Stafford Crown Court on 11th August 2000, when dismissing his appeal from his conviction for speeding by the Burton-on-Trent Magistrates' Court on 15th June 2000, to the effect that it was not willing to stay those proceedings for abuse of process on the grounds that the police officers in the case had destroyed a video recording of the relevant incident soon after it took place. We will call this case "the Stafford case".
In both these cases the original defendant's complaint related to the obliteration of video evidence. The facts of the Feltham case are confused, but what seems clear is that when the police officer attended the Tesco store where the alleged assault took place, he went and viewed what he thought was the only available video recording of the scene of the incident and satisfied himself that it showed nothing at all of any relevance. As a result he took no steps to seize or retain any of the videotape or film images used at the store on the day in question, and it all appears to have been reused or otherwise obliterated within about five weeks in the usual course of the store's business, long before any inquiries about the availability of video evidence were first made by the defence.
In the Stafford case, the court accepted the evidence of two police officers that they had followed the appellant's car at a distance of 200 metres for three tenths of a mile and that during this time they had recorded speeds of 90 miles per hour on their calibrated speedometer. They had a video in their car, and when they stopped the appellant and invited him into their car, they played the video back to him. It showed their speed registering at 90 miles per hour and his car in front of them. It also recorded the time as the cars went along. The police officers then served him with a fixed penalty notice and a notice requiring him to produce a document (not in his possession at the time) at a named police station. He said "What am I going to do?" They permitted him to drive off, and so far as the Crown Court was aware, they then reused the videotape in the ordinary course of their duties. Although it appeared from the papers before us that no inquiry about videotape evidence appeared to have been made by the appellant or his advisers until the hearing of the appeal at Stafford Crown Court over ten months after the incident, it was suggested at the hearing in this court that the matter had been raised in correspondence in advance of that appeal. Because this had never been mentioned before, we did not ask to see the correspondence.
During the two hearings we were referred to a large number of unreported decisions of this court and of the Court of Appeal in which similar complaints were made about the non-availability of video evidence which in fact showed, or which might have showed, an incident or incidents which were said to be material by one side or the other when the eventual trial took place. None of these unreported decisions established any new point of principle. This, no doubt, was the reason why none of them was reported. Notwithstanding this fact, counsel in the two cases have seized on various phrases in what were probably all ex tempore judgments as if they established some new point of principle, and a great deal of time was taken up on both occasions, both at the hearing and in pre-hearing reading, in looking at the facts of these unreported cases in an attempt to derive from them some new principle.
We therefore decided to reserve judgment in both cases and to prepare this single, reserved judgment in the expectation that in future courts may be spared the prolonged "trial by unreported judgment" to which we were subjected. One of the reasons why we took this course was that devices like CCTV are becoming more and more common, and the proceedings of courts are likely to become more and more disrupted each time the defence complains that what was or might have been relevant videotape evidence has been destroyed and is not available to the defence. There are also procedural matters of general importance to which we wish to refer.
The 1997 Code of Practice and the Attorney-General's new guidelines
Since 1997 the police and other investigating authorities have had the benefit of codified guidance relating to the nature and extent of their duty to obtain and retain "material which may be relevant to their investigation" (see below for the meaning of the phrase). In paragraph 2.1 of the Code of Practice published pursuant to Sections 23 and 25 of the Criminal Procedure and Investigations Act 1996, which came into force on 1st April 1997 ("the 1997 code") it is said that:
"material may be relevant to the investigation if it appears to an investigator, or to the officer in charge of an investigation, or to the disclosure officer, that it has some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case."
That the extent of the duty of investigation should be proportionate to the seriousness of the matter being investigated is evident from paragraph 3.4 of the code:
"In conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances."
Paragraph 3.5 describes the extent of the investigative duty when it is believed that other persons may be in possession of material that may be relevant to the investigation:
"If the officer in charge of an investigation believes that other persons may be in possession of material that may be relevant to the investigation, and if this has not been obtained under paragraph 3.4 above, he should ask the disclosure officer to inform them of the existence of the investigation and to invite them to retain the material in case they receive a request for its disclosure … However, the officer in charge of an investigation is not required to make speculative enquiries of other persons: there must be some reason to believe that they may have relevant material."
Paragraph 5 of the code identifies the duty to retain material obtained in a criminal investigation which may be relevant to an investigation (5.1) and the length of time over which that duty will continue in effect (5.6–5.10). Paragraph 5.3 provides:
"If the officer in charge of an investigation becomes aware as a result of developments in the case that material previously examined but not retained (because it was not thought to be relevant) may now be relevant to the investigation, he should, wherever practicable, take steps to obtain it or ensure that it is retained for further inspection or for production in court if required."
These provisions of the code preserve and amplify common law rules which were prescribed by the judges before the code came into force. We mention this fact because the investigations in some of the cases to which we were referred took place before 1st April 1997. In one of them, Reid (unreported 10th March 1997 CACD), Owen J said, in effect, that
(i) There is a clear duty to preserve material which may be relevant;
(ii) There must be a judgment of some kind by the investigating
officer, who must decide whether material may be relevant;
(iii) If he does not preserve material which may be relevant, he may in future be required to justify his decision;
(iv) If his breach of duty is sufficiently serious, then it may be held to be unfair to continue with the proceedings.
In both the present cases reference was also made to the Guidelines issued by the Attorney-General on 29th November 2000 in relation to Disclosure of Information in Criminal Proceedings, even though the police investigations, such as they were, in each case predated the publication of those guidelines. We were referred in particular to paragraphs 1, 6, 20, 21, 37 and 40(iv) of the guidelines. These paragraphs are concerned with the disclosure of material obtained and retained by investigators, and not to the process which leads to material being obtained and then retained, except for paragraph 6 which reads:
"In discharging their obligations under the statute, code, common law and any operational instructions, investigators should always err on the side of...
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