QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE MORISON
|FELTHAM MAGISTRATES' COURT
ex parte MOHAMMED RAFIQ EBRAHIM
DIRECTOR OF PUBLIC PROSECUTIONS
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
John McGuinness (instructed by the Crown Prosecution Service for the DPP)
The Magistrates' Court was not represented
|PAUL ALEXANDER MOUAT
|THE DIRECTOR OF PUBLIC PROSECUTIONS
Stuart Clarkson (instructed by CPS for the DPP)
Crown Copyright ©
LORD JUSTICE BROOKE :
The 1997 Code of Practice and the Attorney-General's new guidelines
"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."
"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."
"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."
"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."
(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 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."
The jurisdiction of a court to stay criminal proceedings for abuse of process
"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."
(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.
"... 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
(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  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)."
The Stafford Case
(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?
"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."
(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
"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."
"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."
"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  1 Cr App R 94). The discretion should be used sparingly (R v Medway  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."
(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.
(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.