R v PR [ 2019 ] – Abuse of Process Lost Evidence

R v PR [ 2019] [1] In 2002, following a police investigation into allegations made by his six-year-old niece, a decision was made not to prosecute the defendant for offences of indecency with a child on the basis that there was insufficient evidence. The police file relating to the investigation was subsequently destroyed by accidental water damage. Some other material survived. Some years later, following a renewed investigation into the allegations, the defendant was charged with four counts of indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960. At trial, submitting that the missing material contained information relating to the complainant’s accuracy and credibility, the defendant applied for the case to be stayed as an abuse of the process of the court. The judge dismissed the application and the defendant was subsequently convicted. He appealed on the ground that the judge had been wrong to refuse to stay the proceedings.

 

The Court of Appeal declined to intervene quoting the comment of Treacy Lj in R v D Para 69:

“In considering the question of prejudice to the defence, it seems to us that it is necessary to distinguish between mere speculation about what missing documents or witnesses might show, and missing evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case. The court will need to consider what evidence directly relevant to the appellant’s case has been lost by reason of the passage of time. The court will then need to go on to consider the importance of the missing evidence in the context of the case as a whole and the issues before the jury. Having considered those matters, the court will have to identify what prejudice, if any, has been caused to the appellant by the delay and whether judicial directions would be sufficient to compensate for such prejudice as may have been caused or whether in truth a fair trial could not properly be afforded to a defendant.”

 

The Court however reminded itself that the general proposition against a stay would not always be the case:

 

“Para 66 ……. This general statement is not meant to preclude the possibility that a fair trial may sometimes be unachievable when relevant material cannot be deployed (see, for instance, R v Sheikh [2006] EWCA Crim 2625). But we stress that the strength and the utility of the judge’s direction is that it focuses the jury’s attention on the critical issues that they need to have in mind”

 

It seems therefore that the Court has very recently taken the opportunity to reinforce that where the loss material answers a very specific allegation then the principle established in Sheikh remains and a stay can be the result.

[1] EWCA Crim 1225



Categories: Caselaw, Historical Abuse, Miscarriage

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