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Ebrahim, R (on the application of) v Feltham Magistrates' Court

Summary

Lord Justice Brooke :

1. This is the judgment of the court.

Introductory

2. 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".
3. 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".
4. 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.
5. 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.
6. 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.
7. 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

8. 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."

9. 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."

10. 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."

11. 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."

12. 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.

13. 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 recording and retaining material where they have any doubt as to whether it may be relevant."

14. In the Stafford case it is said that the investigators had obtained the relevant video evidence which they were obliged to retain pursuant to their duties under paragraph 5 of the 1997 code (see paragraph 11 above). In this context paragraph 1 of the new guidelines observes that fair disclosure to an accused is an inseparable part of a fair trial (as guaranteed under Article 6 of the European Convention on Human Rights), and paragraph 5 tells investigators that they must be fair and objective and that a failure to take action leading to proper disclosure may lead to a successful abuse of process argument.
15. In paragraph 20 of the new guidelines prosecutors are told that in deciding what material should be disclosed they should resolve any doubt they may have in favour of disclosure (subject to a proviso which is irrelevant in the present context). In the course of a discussion of the obligations of primary disclosure in paragraph 37, prosecutors are warned that they should pay particular attention to material that has potential to weaken the prosecution case or is inconsistent with it. One of the examples that is given (see paragraph 37(iii)) relates to any material which may cast doubt upon the reliability of a confession. During the discussion of secondary disclosure in paragraph 40, express reference is made in sub-paragraph (iv) to "video recordings made by investigators of crime scenes".
16. So much for the duty to pursue all reasonable lines of inquiry, and the duties to obtain, retain and disclose relevant material. When a complaint is made on an abuse application that relevant material is no longer available, the first stage of the court's inquiry will be to determine whether the prosecutors had been under any duty, pursuant to the 1997 code and the new guidelines, to obtain and/or retain the material of whose disappearance or destruction complaint is now made. If they were under no such duty, then it cannot be said that they are abusing the process of the court merely because the material is no longer available. If on the other hand they were in breach of duty, then the court will have to go on to consider whether it should take the exceptional course of staying the proceedings for abuse of process on that ground.

The jurisdiction of a court to stay criminal proceedings for abuse of process

17. We think it may be helpful to restate the principles underlying this jurisdiction. The Crown is usually responsible for bringing prosecutions and, prima facie, it is the duty of a court to try persons who are charged before it with offences which it has power to try. Nonetheless the courts retain an inherent jurisdiction to restrain what they perceive to be an abuse of their process. This power is "of great constitutional importance and should be ... preserved": per Lord Salmon in DPP v Humphrys [1977] AC 1 at p 46C-F. It is the policy of the courts, however, to ensure that criminal proceedings are not subject to unnecessary delays through collateral challenges, and in most cases any alleged unfairness can be cured in the trial process itself. We must therefore stress from the outset that this residual (and discretionary) power of any court to stay criminal proceedings as an abuse of its process is one which ought only to be employed in exceptional circumstances, whatever the reasons submitted for invoking it. See Attorney-General's Reference (No 1 of 1990) [1992] QB 630, 643G.
18. The two categories of cases in which the power to stay proceedings for abuse of process may be invoked in this area of the court's jurisdiction are (i) cases where the court concludes that the defendant cannot receive a fair trial, and (ii) cases where it concludes that it would be unfair for the defendant to be tried. We derive these two categories from the judgment of Neill LJ in R v Beckford (1996) 1 Cr App R 94 at p 101. He observed that in some cases these categories may overlap. There may, of course, be other situations in which a court is entitled to protect its own process from abuse, for example where it considers that proceedings brought by a private prosecutor are vexatious (see R v Belmarsh Magistrates' Court ex p Watts [1999] 2 Cr App R 188), but we are not here attempting to carry out an exhaustive review of this jurisdiction.
19. We are not at present concerned with the second of these two categories (which we will call "Category 2" cases), in which a court is not prepared to allow a prosecution to proceed because it is not being pursued in good faith, or because the prosecutors have been guilty of such serious misbehaviour that they should not be allowed to benefit from it to the defendant's detriment. In some of these cases it is this court, rather than any lower court, which possesses the requisite jurisdiction (see ex p Watts per Buxton LJ at p 195B-D).
20. In these cases the question is not so much whether the defendant can be fairly tried, but rather whether for some reason connected with the prosecutors' conduct it would be unfair to him if the court were to permit them to proceed at all. The court's inquiry is directed more to the prosecutors' behaviour than to the fairness of any eventual trial. Although it may well be possible for the defendant to have a fair trial eventually, the court may be satisfied that it is not fair that he should be put to the trouble and inconvenience of being tried at all.
21. Neill LJ gave three examples of this type of case in his judgment in Beckford at p 101D - 102A. In all such cases - and one hopes they will be very rare - the court has to make a value judgment about the character of the prosecutor's conduct. If it is satisfied that it would not be fair to allow the proceedings to continue, the court does not then concern itself with the possibility that any ensuing trial might still be a fair one, because it will have formed the prior view that it would not be fair to the defendant if it were to take place at all.
22. This, in our judgment, is the type of situation which Sir Roger Ormrod, sitting in this court with Lord Lane CJ in R v Derby Crown Court ex p Brooks [1985] 80 Cr App R 164 had in mind when he said at p 168-9 that it may be an abuse of process if:

"the prosecution have manipulated or misused the process of the court so as to deprive a defendant of a protection provided by the law or to take unfair advantage of a technicality."

23. In one of the unreported cases we were shown, it was said that there had to be either an element of bad faith or at the very least some serious fault on the part of the police or the prosecution authorities for this ground of challenge to succeed.
24. The first category of case (see paragraph 18 above: we will call these "Category 1 cases") is founded on the recognition that all courts with criminal jurisdiction, including magistrates' courts, have possessed a power to refuse to try a case, or to refuse to commit a defendant for trial, on the grounds of abuse of process, but only where it is clear that otherwise the defendant could not be fairly tried. An unfair trial would be an abuse of the court's process and a breach of Article 6 of the European Convention of Human Rights. In these cases the focus of attention is on the question whether a fair trial of the defendant can be had.
25. Two well-known principles are frequently invoked in this context when a court is invited to stay proceedings for abuse of process:

(i) The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution, because the fairness of a trial is not all one sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted.

(ii) The trial process itself is equipped to deal with the bulk of the complaints on which applications for a stay are founded.

26. We have derived the first of these principles from the judgment of Sir Roger Ormrod in R v Derby Crown Court ex parte Brooks at p 168 and the second from the judgment of Lord Lane CJ in Attorney-General's Reference (No 1 of 1990) at p 644B-C. The circumstances in which any court will be able to conclude, with sufficient reasons, that a trial of a defendant will inevitably be unfair are likely to be few and far between. The power of a court to regulate the admissibility of evidence by the use of its powers under Section 78 of the Police and Criminal Evidence Act 1984 is one example of the inherent strength of the trial process itself to prevent unfairness. The court's attention can be drawn to any breaches by the police of the codes of practice under PACE, and the court can be invited to exclude evidence where such breaches have occurred.
27. It must be remembered that it is a commonplace in criminal trials for a defendant to rely on "holes" in the prosecution case, for example, a failure to take fingerprints or a failure to submit evidential material to forensic examination. 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.
28. In relation to this type of case Lord Lane CJ said in Attormey-General's Reference (No 1 of 1990) at p 644A-B that no stay should be imposed:

"... unless the defence shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court."

Cases in which these principles have been applied

29. We turn now to the facts of a number of cases in which courts have been concerned with applications to stay a prosecution for abuse of process when CCTV or video evidence has not been available at trial. We can summarise their effect, to which we have appended our comments, in this way:

(i) Violent disorder broke out at a night club. The judge was satisfied that a video camera was trained on an area of the club where an incident occurred prior to the arrival of the police and where part of the incident of violent disorder took place. Police officers viewed the video but its existence was not revealed to the defence in spite of their specific requests for unused material, and by the time of the trial the videotape had disappeared. The judge ordered a stay.

This was a Category 1 case. It was not a case of the prosecution deliberately manipulating or misusing the process of the court, but the police had actually viewed the video and decided not to retain it because it did not assist their case, without performing their duty of considering whether it assisted the defendant's case. The court considered that the trial would not be fair. (Birmingham [1992] Crim LR 117).

(ii) Violence broke out at a chemist's shop. The jury heard evidence from three independent witnesses. A police officer told the court that he saw a video film which contained nothing of relevance, and that one of the cameras did not cover the particular area. He said that if the recording had been relevant it would have been seized. The trial judge refused a stay, and the Court of Appeal dismissed a challenge to his decision. It asked itself whether it was unfair that those video pictures had disappeared, and since the judge accepted the police officer's evidence he was entitled to find that there had been no unfairness.

This was neither a Category 1 case nor a Category 2 case. There was nothing unfair and nothing exceptional about it. (Reid, 10th March 1997, CACD transcript).

(iii) In a rape case, the complainant said that she had been raped close to a bridge over a railway line. The jury heard evidence from a number of independent witnesses. Video cameras were mounted on the bridge, but the detective constable in charge of the investigation was told by British Transport police that the cameras were not switched on. In fact they were working, but the police did not ascertain this fact until a month later, by which time the film had been destroyed. The trial judge refused a stay, and the Court of Appeal dismissed a challenge to his decision. It directed itself that before there could be any successful allegation of an abuse of process based on the disappearance of evidence, there had to be either an element of bad faith or at the very least some serious fault on the part of the police or the prosecution authorities.

The court considered that that there was no bad faith and no serious fault on the part of the police and that it was possible to have a fair trial. It suggested, obiter, that a lackadaisical failure on the part of the police to make proper investigation might in certain circumstances be held, in effect, to give rise to a Category 2 case, but those circumstances did not exist in that case. (Swingler, 10th July 1998, CACD transcript).

(iv) The police were called to licensed club premises following an incident. They complained that during the course of their inquiries the defendant had used threatening words or behaviour and that he had also assaulted them in the execution of their duty. The incident in which the defendant was involved had taken place at the entrance of the premises and in the area just outside the door. A CCTV camera covered the foyer and three steps down to the street, and gave a reasonably good image of people's faces. Police viewed the video but formed the opinion that it was of no use. They returned it to the club, and it was subsequently reused. The stipendiary magistrate stayed the proceedings for abuse of process on the grounds that since the camera covered the doorway and the surrounding area anything shown on it might well affect the assault charges This court refused to quash her decision, holding that it was well within the limits of her judgment to take the course she did, because it could not be shown that the videotape evidence would have had no effect on the trial at all. It said that the difference between this case and the Birmingham case, where it was established beyond doubt that the destroyed video evidence had shown the locus in quo of the alleged offences, was a difference of degree and not of substance.

This was a borderline Category 1 case. Most courts would have refused the stay. In Stallard (below) the Court of Appeal said that if it had to choose between the reasoning in Chipping and the reasoning in Swingler, it preferred the latter (R v DPP ex p Chipping, COT 11th January 1999).

(v) A CCTV camera was operating in a street where a robbery took place, and it was so positioned that it was at the very least possible that something of the robbery might have been filmed. The jury received compelling evidence from two independent witnesses. A police officer looked at the film and formed the opinion that it showed nothing of value. He did not preserve the tape, which was then reused. The Court of Appeal upheld the judge, who had refused to stay the proceedings for breach of process. It said that in Chipping there was simply a refusal to hold that the magistrate had acted outside the generous ambit of her discretion. It was recognised that in cases where evidence had been tampered with, lost or destroyed it might well be that a defendant would be disadvantaged, but it did not necessarily follow that [a Category 1 or Category 2 case] was established. There would need to be something wholly exceptional about the circumstances of the case to justify a stay on the ground that evidence had been lost or destroyed.

In this context, the use of the word "wholly" adds nothing to the word "exceptional". A fair trial was possible, and this was not a Category 2 case. (Medway, 25th March 1999 CACD transcript).

(vi) A purse was stolen in a shop. Video cameras were operating, which each showed a different picture and all the pictures appeared on one tape. A compilation tape was them made and retained, and the original tapes were destroyed in accordance with routine practice. It then turned out that the compilation tape began too late and ended too soon, and did not show the whole of the story. The Court of Appeal upheld the judge's refusal to stay the proceedings for abuse of process. It held that there was nothing on the facts of the case to approach the kind of serious fault [in a Category 2 case] that would be required before the court could begin to consider whether the continuation of the proceedings were an abuse of its process. It had earlier dismissed the possibility of this being a [Category 1 case] by saying that it did not see how it could properly be said that the appellant could not have a fair trial without the video.

This case is a good example of the way in which these cases should be analysed. (Stallard, 13th April 2000, CACD transcript).

(vii) A woman was arrested, following a road traffic accident, and charged with driving a motor vehicle whilst unfit through the consumption of drugs. Although a police officer at the scene, who did not attend court, had circled in his note book the response "yes" to the question whether there was any video evidence, it was entirely speculative as to how any video evidence, assuming such existed, was or might have been relevant to any issue in the case. The defendant had persuaded the magistrates that in some unspecified manner she had been disadvantaged, and the proceedings were stayed for abuse of process. This court held that in taking this course the justices had exceeded any reasonable exercise of their discretion.

A fair trial was clearly still possible, and there was no question of any misbehaviour at all. (Garrety, 11th December 2000, Administrative Court transcript)."

30. Chipping is the only decision which it is difficult to reconcile with the principles we have stated. It must be remembered, however, that all that that case showed was the higher court being unwilling to interfere with the exercise of the decision of the lower court on the basis that it was clearly wrong. There is no hint in the judgment of Buxton LJ, with whom Collins J agreed, that he thought that the magistrate was clearly right.
31. Before we turn to the facts of the present cases, there is one further point of general importance we need to mention. If a defendant is convicted and then appeals to the Crown Court, he will gain nothing by inviting the Crown Court to stay the proceedings for abuse of process. If the proceedings in the Crown Court are merely stayed, his conviction will stand. It appears to us, in these circumstances, that his appropriate course, if any unfairness cannot be corrected in a fresh hearing on appeal, will be to invite the Crown Court to allow his appeal and quash the conviction on the grounds that, even if he made no complaint at the time, the trial in the magistrates' court was not a fair one, and that any such unfairness is irremediable.
32. We turn now to the facts of the two cases with which we are concerned.

The Stafford Case

33. The case stated by Judge McEvoy QC is in the following terms.
34. On 5th October 1999 Paul Mouat was driving his car out of Burton-upon-Trent when he was stopped by police officers. He was informed that he had been exceeding the speed limit and was given a fixed penalty ticket. The police officers took him into their vehicle and showed him a video recording of the incident.
35. He did not pay the fixed penalty, but asked for a Magistrates' Court trial. He wished to put forward a defence of duress. He would say that he was travelling in the outside lane of a dual carriageway, overtaking several vehicles, including large lorries. He was not exceeding the speed limit at that point. An unidentified vehicle then came up behind him at speed and proceeded to travel only a few inches from his bumper. He was extremely frightened and intimidated by this action. He felt that the vehicle was too close for him to be able to safely slow down. He could not pull to his left due to vehicles on his inside. He therefore increased his speed to avert the danger.
36. He was shocked to discover that the vehicle which had behaved in this way was a police car.
37. He was not represented when he appeared for trial at Burton-upon-Trent Magistrates' Court on 15th June 2000. A police officer, whilst giving evidence, conceded that the video recording of the incident had been destroyed. The issue of fairness of trial does not appear to have been raised.
38. He was convicted. The magistrates imposed a fine of £90 and endorsed his driving licence with 3 penalty points. He was ordered to pay £65 towards the cost of the prosecution.
39. He appealed against his conviction to Stafford Crown Court. That hearing took place on 11th August 2000. He was represented by counsel.
40. Counsel argued that proceedings should be stayed as Paul Mouat could not have a fair trial as the video evidence had been destroyed. The court's attention was drawn to the cases of R v Birmingham (1992) Crim LR 117 and DPP v Chipping (1999) unreported.
41. The Crown argued that Mr Mouat could receive a fair trial. Police officers would give evidence to the court in respect of the incident. It is routine practice for video recordings of this nature to be wiped off unless the motorist has made some protest at the time of the incident.
42. The prosecution's position so far as the video evidence was concerned was that it was never originally intended to produce it in court in order to prove the speeding offence. Proof of the offence was to be achieved by evidence of following the offending vehicle at the constant distance for 3/10 of a mile and that the police speedometer was in proper working order. A video was to be used to illustrate to the motorist that an offence had been committed. The vascar capability had not been activated but the speed of the police vehicle was recorded on the video.
43. Both police officers said that the appellant when shown the video did not dispute the contents of it, ie that he was speeding at 90 mph and when given the fixed penalty ticket he is recorded as saying "what am I going to do". Both officers said that if he had done or said anything to dispute the video evidence it would have been retained (it would not have been possible to use the fixed penalty procedure).
44. Mr Mouat's evidence was to the effect that he asked what would happen to the video and the police replied that they kept it should he try and contest the case. He asserted that he told the police that the only reason he went 90 mph was that the police car was up his backside or words to that effect. He did admit that the speed of 90 mph was registered on the video.
45. The court found the appellant not to be a credible witness. The circumstances of watching a video of the driving and saying "what am I to do" amounted implicitly to admitting to the offence and the police were entitled to regard it as so. Moreover under Section 34 of the Criminal Justice and Public Order Act 1994 the court was entitled to draw such inferences as appeared proper from the appellant's failure to mention the facts he relied upon at the hearing.
46. At the end of the hearing the court delivered an ex tempore judgment which sets out the facts and reasons for dismissal of the appeal. It was found that in the circumstances the police were entitled to re-use the video and the appellant was not prejudiced or prejudiced to the extent that he could not have a fair trial. The court exercised its discretion and refused to stay the case. A copy of the court's judgment was attached to the Case .In those circumstances the court asked the following questions for the opinion of the High Court:

(i) Could a fair hearing take place given the fact that the police had destroyed the video recording of the incident?

(ii) Should Paul Mouat's silence at the time of the incident be considered relevant to the police's duty to retain evidence?

47. It appeared to us on the hearing of the appeal to this court that something had gone wrong in this case. The video tape in the police car contained material which might be relevant to the police's investigation of the speeding offence, and they were not entitled to assume that Mr Mouat would simply pay the penalty required by the fixed penalty notice. Indeed, the law allowed him a 21 day "suspended enforcement period" in which he could decide whether he wanted to be tried at a court for the offence specified in the notice (see, generally, the statutory scheme set out in Part III of the Road Traffic Offenders Act 1988).
48. Mr Clarkson, however, told us in his skeleton argument that "financial considerations would mean that it would be impractical for there to be a new tape every time a speeding car is stopped and the driver disputes, or may in the future dispute, any fact contained therein. In fact it would mean that all such video tapes would have to be kept".
49. It appeared to us that this claim of impracticality revealed a willingness to ignore the clear requirements of the 1997 code. We could not understand why, at the very least, it was impractical for the police to keep the relevant tapes at least until the suspended enforcement period had expired (or until trial, if the motorist exercised his right to require a trial). We therefore asked counsel for the prosecution to make further inquiries about police practice before we delivered judgment. We are grateful to them and their solicitors for undertaking this task.
50. Mr Clarkson in due course told us, after inquiries had been made of seven police forces in England and Wales, that there were no national guidelines for the police which related to the retention of video recordings taken of suspect vehicles from video recording equipment in police vehicles. The policy of the Staffordshire force was expressed in the following terms (with occasional comments about the practice of other forces):

"The Staffordshire force has 14 video recording units although fewer would be on the road at any one time. That seems to be a reasonable average for police forces. The videos are 3 hours long, although other forces use shorter tapes. Some operators keep them running nearly all the time; others only turn it on if there is something interesting or illegal happening at the time.

If no offences are revealed they are kept for 28 days and then wiped clean. If offences are revealed they are kept for 12 months following conviction; if there is an acquittal they are wiped shortly after the trial. If a fixed penalty notice is given they are kept for 12 months. That applies to all forces except Gwent which keep the tapes for 7 years following conviction.

The Staffordshire force also keeps a back-up tape called a shift tape onto which all offences, or potential offences are transferred in any one shift. That is kept for 12 months."

51. Mr Mouat's solicitors had made inquiries whose results were rather less illuminating. A representative of the Home Office, when approached, knew nothing about any police guidelines. Two representatives of the Association of Chief Police Officers ("ACPO") were contacted. They both said that they believed ACPO had published guidelines, but neither of them was able to find them. A representative of the Nottinghamshire Police (policy unity and legal section) said that the Nottinghamshire Police Force followed ACPO guidelines, but they, too, were unable to produce a copy of them.
52. At the very least it appears that the Crown Court was misled, no doubt unwittingly, by the Crown when inquiries were made about police practice at the time of Mr Mouat's appeal. It was told (see paragraph 41 above) that it was routine practice for video recordings of this nature to be wiped off unless the motorist made some protest at the time of the incident. We now know that in Staffordshire policy dictates that all these tapes are kept for 28 days, and that if they reveal an offence they are retained for 12 months following a conviction (and for 12 months if a fixed penalty notice is given). Mr Mouat's appeal was heard well within both these periods. There should also have been the back up shift tape, which should also have been kept for 12 months.
53. Because we do not know why, despite the Staffordshire policy, the videotapes in the police car were reused, or what happened to the shift tape, if any, which ought to have been preserved for 12 months, and because the Crown Court appears to have been misled, it appears to us that the decision of that court cannot stand, and the case must be remitted for the appeal to be heard again by a differently composed court. The answers to the questions posed by the court are:

(i) In the light of the further evidence received in this court we do not know if a fair hearing took place or could take place. This must be a matter for a new court to decide in the light of the principles we have set out in this judgment.

(ii) No. He was entitled to consider during the suspended enforcement period whether he wished to contest his liability in court, and the police were under a duty under the Code of Practice to retain the video tapes until after that period expired, at the very least.

The Feltham case

54. These proceedings arose out of an incident at a Tesco superstore in Hayes Road, Southall on 17th October 1998 when it is alleged that Mr Ebrahim punched the complainant Mr Chopra, who was another customer in the store. The store was fitted with closed circuit television. The concern of Mr Ebrahim and his advisers was directed to the possibility that an earlier incident at the store, when Mr Ebrahim says that he was assaulted by a number of people, including Mr Chopra, when he first entered the store, was recorded on videotape. They complained that this videotape, if any, had been destroyed by Tesco during the course of the proceedings.
55. Form 86A, which is confirmed in evidence by the applicant's solicitor, shows that the application to the magistrate to stay the proceedings was based on the contention that a store security video, which was essential to the defence case and for which a witness summons had been obtained, had been destroyed, and that without this video the applicant could not have a fair trial.
56. The background facts were set out in Form 86A in the following terms. Mr Ebrahim is of good character, and he maintains that he was threatened and abused by a group of people when he entered the Tesco store to do some shopping. A little later one of these people became involved in an argument with him, and he believed that he was about to be struck. He therefore grabbed at this man in order to restrain him in self-defence. At the time of his arrest the arresting officer viewed only one of the numerous video cameras in the store and did not seize any of the tapes. Mr Ebrahim was not interviewed himself, and it is said that he therefore had no proper opportunity at the time to explain about the events which occurred prior to the incident for which he was arrested.
57. It appears that a pre-trial review on 11th February 1999 was adjourned after defence counsel had requested the CPS's help in obtaining a tape which showed the earlier incident when Mr Ebrahim entered the store, because it was thought at that time that this tape was held by the police. It then became evident that the Crown did not possess this tape, and on 25th March the defence applied successfully for a witness summons against Tesco for its production. This summons was duly served, but it did not elicit the production of the tape, and the Tesco manager did not appear at the trial on 10th June despite the summons. It appears that he had told the Crown in April that he would not be attending, presumably because he had nothing to produce, but this information was not passed on to the defence or to the court.
58. It was then stated in Form 86A that it had transpired, after further enquiries, that the videotape had been destroyed by Tesco on about 19th May 1999, some weeks after the service of the summons, and after the store manager had notified the Crown that he did not wish to attend court. The defence complained that no effort appeared to have been made to preserve the tape or to comply with the summons.
59. Evidence has been adduced by the Crown in response to this application to the effect that PC Webster, the officer in the case, gave evidence at the hearing on 31st August 1999 that before arresting Mr Ebrahim he had gone to the CCTV room at the store and had ascertained that the location of the alleged assault had not been recorded on film by any of the CCTV cameras. In those circumstances he had not seized any of the substantial quantity of videotapes which were being used at the time of the incident. In the statement which represents his evidence in the criminal proceedings he says that he went to view the video on monitor 7 of the area where the incident was alleged to have taken place, and that the monitor did not cover the scene.
60. We also received in evidence three affidavits by Tesco's customer service manager at this store, Mr Jeff Graham, by way of explanation of the siting of the CCTV cameras in this store. He is responsible for all security issues at the store, and he produced a big plan of the store which identified the location of the different security cameras. He said that they had not been moved since the store was opened.
61. They are all connected to a video recording room, where eight video recorders simultaneously record various parts of the store. The recording switches from one camera to another in a pre-programmed order. The sequence could be overridden manually if there was a need to concentrate on one particular camera and its vision.
62. The plan shows a 360 degree camera (Number 8) in the vicinity of the National Lottery counter which was the scene of the alleged assault and another one (Number 9) which could be directed towards the entrance of the store. Some difficulty arose over numbering. The cameras (at least 37 in number) have one set of numbering, and the video recorders and their monitor screens have another. In his witness statement PC Webster said he went to view the video on monitor 7. In his first statement Mr Graham said that the video recorder No 7 covered the camera No 10, although it could be, and would be, switched to another camera if the need arose. In his second statement he said that "monitor No 7 does not exist and did not exist at the time of the incident". In his third statement he said that the National Lottery counter was positioned in front of camera 8 and that it was viewable from Monitor No 8 in the security room. He had earlier said that the image from the camera at the entrance to the store was continuously recorded on recorder No 6.
63. During the course of the hearing we were given the original plan which was before the magistrate on 27th August 1999. The position of the cameras is indicated in manuscript on the plan, and it usefully illustrates the layout of the relevant part of the store in relation to the cameras.
64. We also received in evidence a statement by Mr Roger Coe, a senior Crown prosecutor, who had appeared for the prosecution in the lower court. He told us that he had first become involved at a hearing on 10th June 1999, at which PC Webster had been instructed to obtain a statement from Mr Leon Anthony relating to the status of the video. This statement, which was faxed to the court that day, is not mentioned in Form 86A or in the applicant's evidence. It reads:

"I am a security officer employed by Capital Security Services and working at Tesco, Hayes, Balsbridge. Our CCTV system runs on a system based with 247 video tapes. These tapes are used daily at the rate of 7 tapes per day. This would give approx. 5 weeks of recording before all tapes would be taped over again. Also I would like to add that I destroyed over 300 video tapes so the store could start using new video tapes, therefore all recordings before the 19th May 1999 are now destroyed."

65. Mr Coe tells us that this evidence formed the underlying basis for the argument before the magistrate on 31st August, when the hearing lasted three hours. He told us that at that hearing "PC Webster gave evidence that he had viewed the video, it contained no relevant evidence, and that he had viewed it following receipt of the allegation and having spoken to the witnesses. It was clear from his evidence that no cameras covered the location of the incident alleged at the time".
66. Mr Smiler, who appeared without a representative of his solicitors in attendance at the court below, did not take a note of PC Webster's oral evidence. We see no reason to disbelieve Mr Coe's account of what took place.
67. Because we do not have a full note of PC Webster's oral evidence, it is necessary to refer to his original witness statement in order to understand what he did by way of investigating the alleged offence when he was called out to the Tesco store at 11.30pm that evening. His witness statement reads:

"On Friday 16th October 1998 at about 23.30hrs I was on duty in full uniform in a marked police vehicle in company with PC 156TX Hedley. Due to a call received on our personal radios, we attended Tesco Superstore, Balsbridge Industrial Estate, Hayes Road, Southall.

On arrival we were met by Store Security who showed me just inside the store, where I met two Asian males. The first I now know to be Mr Rhajinder Singh Chopra. The second I now know to be Mr Mohammed R Ebrahim. In the presence and hearing of Mr Ebrahim, Mr Chopra said 'I was queuing at the Lottery counter to buy a ticket, when this man pushed into my wife for no reason. He did not apologise, so I said 'Why did you push my wife?' He then turned and punched me in the face and started to shout and swear for no reason. I said to Ebrahim 'You have heard what this gentleman has had to say, what do you have to say? He replied 'I never punched him, I have witnesses, she stuck two fingers at me'.

I then left both men with my colleague PC 156TX and went to the CCTV room to view the video on monitor seven of the area where the incident was alleged to have taken place. The monitor did not cover the scene. I then returned and spoke with an independent witness, Mr Mark Lawrence, the Duty Manager of Tesco's. I said 'Can you tell me what you have seen?' He replied 'I was stood by the Lottery desk, when I saw this man pointing to Mr Ebrahim. He punched into that man's wife for no reason. When asked for an apology he punched him in the face. He was only sticking up for his wife'. I then noticed the inside bottom lip of Mr Chopra which appeared to be swollen. I advised him to contact his doctor.

At about 23.50hrs, I said to Ebrahim 'I'm reporting you for the offence to be considered of prosecuting you for Common Assault' and cautioned him to which he became very irate and began to shout and swear."

68. It will be evident from this statement that while PC Webster received a version of events from both the participants before he went to see if there was any relevant video evidence, he did not make any further inquiries of Mr Ebrahim about the course of events that night. The outcome of such inquiries might have identified the importance of seeing if there was video evidence of the earlier incident at the entrance to the store. According to Mr Graham, any such evidence, if it existed, would have been available on recorder No 6.
69. We were told that the magistrate gave no reasons for his ruling when he dismissed the application for a stay. District Judge Day (as he now is) has very helpfully filed a short statement in response to this application. It reads:

"On 31st August 1999 at Feltham Magistrates' Court I tried an information against Mohammed Rafiq Ebrahim alleging common assault upon Rajinder Singh Chopra at Tesco Superstore, Hayes Road, Southall, Middlesex on 17th October 1998, contrary to section 39 Criminal Justice Act 1988.

I was asked at the outset to stay the prosecution as an abuse of the process of the court on the ground that a video recording of an earlier incident in the store in which the accused claimed to have been abused and jostled by a group including Mr Chopra was not available.

Because [Mr Ebrahim] had not been interviewed at any time, the nature of his defence (namely self-defence) and the consequent significance of the earlier encounter and any video record of it was not known until the pre-trial review on 4th February 1999.

It was not clear to me that any such earlier incident would definitely have been captured on video but what was clear was that no such recording was available despite the issue of a witness summons against the relevant staff member at the store. Indeed the staff member did not even attend court.

I was of the opinion that although the conduct of Tesco appeared cavalier, that did not alter the fundamental basis upon which I should decide the application. The only issue was whether the defendant would receive a fair trial.

I based my decision on the following factors:

1. There was no certainty that the earlier incident had been recorded.

2. Para 3.4 of the Code of Practice (CPIA 1996) did not in these circumstances, months after the incident, impose a duty upon the police to search through all the recordings. That would go far beyond what was reasonable.

3. My experience is that such recordings were unlikely still to be available after such a period.

4. The decision to stay a prosecution is a matter of discretion for the court. The destruction of evidence may prevent a fair trial but does not automatically do so (R v Beckford [1996] 1 Cr App R 94). The discretion should be used sparingly (R v Medway [2000] CLR 415).

5. The defence to be raised by Mr Ebrahim was not dependent upon the existence or production of video evidence, although obviously if such evidence had existed it would have been of assistance, assuming it was as Mr Ebrahim claimed it to be. He was perfectly well able to give his account of that earlier incident in exactly the same way as if it had occurred in a place where there was no suggestion of the existence of video cameras. The situation is more similar to that dealt with in the case of R v Stallard mentioned at p 347 Justice of the Peace (13.05.2000) than the case of Birmingham referred to in the applicant's argument.

Accordingly, I declined to find that there was an abuse of the process of the court and adjourned the case to allow the matter to be dealt with by way of judicial review at the request of the defence."

70. It appears to us that the magistrate directed himself impeccably. He focused correctly on the extent of the police officer's investigative obligations pursuant to paragraph 3.4 of the Code of Practice, and on the guidance in that paragraph to the effect that the extent of the duty of investigation should be proportionate to the seriousness of the matter being investigated (see paragraph 9 above). PC Webster had no reason to believe that his investigations should encompass what had occurred elsewhere in the store an hour earlier, so that paragraph 3.5 of the code had no relevance (see paragraph 10 above). He made a reasonable investigation to see if there was any video evidence of the assault which was the subject of his investigation and he was satisfied that there was none. On the evidence available to us, we cannot disentangle the muddle in the witness statement over the non-existent Monitor No 7: if the lawyers in court had made and retained a reliable note of the police officer's oral evidence on 31st August 1999 this would no doubt have removed any confusion about what he in fact saw. Any video recording of that earlier incident was therefore obliterated in the ordinary course of Tesco's business five weeks later.
71. This was not a Category 2 case because there was no evidence of any improper practice by the police. Nor was it a Category 1 case, because even if PC Webster should have asked some further questions of Mr Ebrahim before going off in search of relevant video evidence, the magistrate was satisfied, on reasonable grounds, that it was still possible to have a fair trial. No doubt at that trial Mr Ebrahim's representative will press PC Webster as to the reasons why he did not give him a better opportunity to give his full account of what happened that night before he went off to the video recording room, but cross-examination of this type is the very stuff of a criminal trial of this type. There is certainly no reason to stay the proceedings on this ground. We would therefore dismiss this application.
72. We would not wish to leave the Feltham case without expressing some concern about the way this judicial review application was presented. The "grounds of relief" on Form 86A give, in paragraphs 10-12, a very garbled version of what happened at the hearing on 10th June. No mention is made of Mr Anthony's statement being faxed to the court that day, or of the fact that it showed that the contents of the relevant video tape (showing the entrance to the store) would have been obliterated within five weeks of the date of the incident, and not, as stated in paragraph 12, some weeks after the service of the summons. Neither PC Webster's oral evidence on 31st August, nor the content of the magistrate's ruling that day, are mentioned in Form 86A, and the misleading "facts" stated in that form are verified by a statement of a partner in the firm of solicitors acting for the applicant, who was never present at court, and who confirms, without identifying her source of information, but merely referring to "file records", that the facts stated in the Statement of Grounds were true to the best of her knowledge and belief.
73. If a proper statement of the facts of this case had been placed before Mitchell J we doubt very much if he would have granted leave. At the very least, he would have given the prosecutor an opportunity to state his version of the events before directing that there should be a substantive judicial review hearing.

Conclusion

74. We would suggest that in similar cases in future, a court should structure its inquiries in the following way:

(1) In the circumstances of the particular case, what was the nature and extent of the investigating authorities' and the prosecutors' duty, if any, to obtain and/or retain the videotape evidence in question? Recourse should be had in this context to the contents of the 1997 code and the Attorney-General's guidelines.

(2) If in all the circumstances there was no duty to obtain and/or retain that videotape evidence before the defence first sought its retention, then there can be no question of the subsequent trial being unfair on this ground.

(3) If such evidence is not obtained and/or retained in breach of the obligations set out in the code and/or the guidelines, then the principles set out in paragraphs 25 and 28 of this judgment should generally be applied.

(4) If the behaviour of the prosecution has been so very bad that it is not fair that the defendant should be tried, then the proceedings should be stayed on that ground. The test in paragraph 23 of this judgment is a useful one.

75. We would add the following two matters by way of procedural guidance:

(5) If a complaint of this type is raised on an appeal by a defendant from his conviction on the magistrates' court, he should not apply for the proceedings to be stayed. He should apply for an order allowing his appeal and quashing his conviction on the grounds that the original trial was unfair and the unfairness was of such a nature that it cannot now be remedied on appeal.

(6) If a ruling on a stay application is made in a lower court, the court should give its reasons, however briefly, and it is the professional duty of the advocates for the parties to take a note of these. If the decision is to be challenged on judicial review, this court will expect to see a note of the lower court's reasons before deciding whether to grant permission for the application to proceed. If any relevant oral evidence was given, this court will hope that an agreed note can be prepared, summarising its effect.

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