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Cite as: [1999] EWCA Crim 839, [2000] Crim LR 415

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DAMIAN PAUL MEDWAY, R v. [1999] EWCA Crim 839 (25th March, 1999)

Case No: 98/7579/Y3

IN THE COURT OF APPEAL

(CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 25 March 1999

B e f o r e :

LORD JUSTICE MANTELL

MR JUSTICE DOUGLAS BROWN

and

THE COMMON SERJEANT OF LONDON

(His Honour Judge Denison QC)

(Acting as a Judge of the Court of Appeal Criminal Division)

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REGINA

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DAMIAN PAUL MEDWAY

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Handed-down judgment of Smith Bernal Reporting Ltd

180 Fleet Street, London EC4A 2HG

Tel No: 0171 421 4040 Fax No: 0171 831 883

(Official Shorthand Writers to the Court)

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MR M A JONES appeared on behalf of the APPELLANT

MISS E MARSHALL appeared on behalf of the Crown

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JUDGMENT

(As approved by the Court)

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Crown Copyright

Lord Justice Mantell:

Just before 6:00pm on 19th February 1998 an elderly lady had taken a bus to Hove where she intended to visit friends. She alighted in Western Road. She remembered nothing else until she woke up in hospital. She had a fractured shoulder, a wound over her right eye and bruising to her face. Her handbag was missing. There is no doubt that somebody had attacked her from behind and grabbed her handbag with such force that she was knocked or dragged to the ground.

Nathan Charlton who was with his mother and sister on the same street saw it happen. At first he thought that the man simply had his arm round a woman but was quickly disabused when he saw the man pulling on the woman’s shoulder bag causing her to fall forwards. She fell flat on her face. The man ran down a connecting road, Lansdowne Place, towards the sea front. He was holding the bag. He was about 5’ 10” tall, clean shaven with brown hair and of medium build. He was wearing a striped anorak. Quite rightly Nathan Charlton’s first concern was for the lady. He did not chase after the man; instead he summoned an ambulance.

Carol Smith was walking away from Western Road down Lansdowne Place when she was overtaken by a young man running towards the sea front. He was holding something in his arms. He disappeared round a corner into Lansdowne Square. Almost immediately afterwards a young woman came up from behind walking in the same direction. She was wearing a black leather jacket and black, high heeled boots. She shouted out “Damian” and a young man walked back out of Lansdowne Square. Miss Smith thought it was the same man who had passed her a few moments before but he was no longer wearing a jacket as he had been when previously seen. The young man and the woman spoke to each other and she overheard the woman ask “what have you done with the bag?” The young man replied “I’ve left it around the corner with my coat”. The woman said “she’s bleeding up there”. As Miss Smith passed by the woman said to her “somebody’s been attacked up there, its terrible”. One of them, either the young man or the woman, then said ‘let’s go into my friend’s house’ and Miss Smith saw the couple disappear into Lansdowne House. Miss Smith called briefly at her sister’s house in the same area and when she came out she saw the same young man and woman on the steps of Lansdowne House.

Just before 9:00pm that same evening Damian Paul Medway was arrested. He was in the Lansdowne area sitting on a pavement wearing a blue and white striped ‘T’ shirt. He was very drunk. He had injuries to the face for which he blamed someone called ‘Steve’.

A woman, Emma Hatton, was also arrested. She turned out to be the woman seen by Carol Smith. In the event she was not prosecuted but made a statement with a view to giving evidence against Medway. In the statement she stated that she and Medway had been drinking in a public house which they left had at about 6:00pm in the evening. They had separated. Then she had heard a scream and on looking up had seen an elderly lady having her handbag pulled off her arm. The woman had fallen over. She had seen Medway running off down Lansdowne Place. She had followed shouting at him and when she had caught up he was no longer wearing a Fila jacket with white stripes that he had been wearing when they had separated. The two of them had then gone to the flat of a friend at 9 Lansdowne Place where for much of the evening they had remained drinking vodka.

The handbag, empty of valuables, was found nearby.

A blue Fila jacket was recovered from Hatton’s flat. In interview Medway agreed that it was his. He claimed to have no recollection of what had taken place during the evening of 19th February and certainly none of having been involved in a robbery.

When Miss Smith was shown the Fila jacket she said that it was similar to the one worn by the young man.

Medway was charged with robbery. In due course he was committed for trial. The trial was listed for 3rd November 1998. Between Medway’s arrest and trial, however, two things happened. It seems that on the night of the 19th February there had been a closed circuit television camera operating in Western Road near to its junction with Lansdowne Place. It was so positioned that it was at the very least possible that something of the robbery might have been filmed. A detective constable looked at the film. He was of the opinion that it showed nothing of value and he did not preserve the tape. The consequence was that the tape was used again and the police officer’s opinion could be no longer confirmed or contradicted. The other thing to happen was that Emma Hatton went missing with the result that she was not available for the trial.

On the first day of the trial the judge, His Honour Judge Brown, was faced with two applications. One made by Mr Jones for Medway was an application for the proceedings to be stayed on the ground that to continue in the absence of the video tape would be an abuse of process. The second application made by Miss Marshall for the prosecution was for leave to read the statement of Emma Hatton pursuant to section 23 of the Criminal Justice Act 1988. The judge refused the first application and granted the second.

The trial proceeded with the statement of Emma Hatton being read and evidence being given in accordance with the summary which we have recounted save that the defendant Medway did not give evidence. In due course he was convicted and sentenced to two years detention Young Offenders Institution.

He now appeals against conviction by leave of the single judge. He is once again represented by Mr Jones and the prosecution have responded in the person of Miss Marshall.

There are two grounds of appeal. The first is that the Judge was wrong not to grant a stay and the second is that he was wrong to allow the statement of Emma Hatton to be read.

Before the judge and in support of his application for a stay Mr Jones relied upon a decision of His Honour Judge Bromley QC in R -v- Birmingham & Others (1992) CLR 117. That was a case in which seven defendants had been charged with violent disorder at or outside a night-club and with various assaults on police officers. It emerged during the trial that a video camera had been trained on part of the premises of the night-club and may well have thrown light upon the guilt or otherwise of the defendants. It was established that the camera had been working and a video tape made which police officers in charge of the case had seen. However, its existence was never revealed either to the Crown Prosecution Service or the defence until the trial was underway by which time the tape had been destroyed. The judge attended the night-club to see for himself whether or not any film might have been of assistance to the defendants and having formed the view that it might stayed the prosecution on the ground that the defence were prejudiced by being deprived of the tape and that a fair trial was no longer possible.

Before this court Mr Jones has again referred to the Birmingham case and also a decision of the Divisional Court, so far unreported, in DPP -v- David Frederick Chipping (Monday 11th January 1999). That was an appeal by way of case stated from a decision of the stipendiary magistrate for West London who stayed an prosecution for abuse of process on factual grounds very similar to those which had obtained in the Birmingham case. It was the prosecution who challenged the exercise of her discretion . The Divisional Court consisting of Lord Justice Buxton and Mr Justice Collins dismissed the appeal. The basis for the decision is to be found in the judgment of Lord Justice Buxton at p.11 of the transcript. Having referred to the fact that the video was likely to be the best evidence of any incident that it showed and that it was desirable that it should be shown to the defence Lord Justice Buxton continued:

"That conclusion might be offset if it could be shown that such evidence would have had no effect on the trial at all and, therefore, that the learned Magistrate was simply mistaken in thinking that she should dismiss the proceedings on the basis of abuse of process. As I have sought to demonstrate, that cannot be shown in this case. In the circumstances I am of the view that it was well within the limits of the judgement of the magistrate to take the course that she did."

So that case cannot be seen as an endorsement by the Divisional Court of the magistrate’s decision but simply as a refusal to hold that she had acted outside the generous ambit of her discretion.

We would not wish to appear to under value either case as an example of how the principles attaching to applications for stays have been treated in the past. But that is what they are - merely examples - and when confronted by such an application it is always necessary for the court to return to the general principles which are applicable in all cases.

The first general principle is the inherent power which is acknowledged to exist by which the court is able to prevent an abuse of its own process (see Connolly -v- DPP (1964) AC 1254).

The second general principle to which we would wish to draw attention is that the court’s power to stay or prevent a prosecution should be sparingly exercised. As Lord Lane, the then Lord Chief Justice, said in Attorney General’s Reference (1)/1990 (1992) 95 CLR CA 296 at 302:

"Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust."

Next the circumstances in which it might be appropriate to exercise the power are twofold:

"(a) Cases where the court concludes that the defendant cannot receive a fair trial; (b) Cases where the court concludes that it would be unfair for the defendant to be tried. "

(See R -v- Beckford (1996) 1 CAR CA 94 per Neill LJ at 101)

Then it has to be remembered that the power exists to ensure that there should be a fair trial and that involves fairness to both sides. As Sir Roger Ormrod said in Derby CC , ex parte Brooks (1985) 80 CAR 164 at 168:

"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, for as Lord Diplock said in R -v- Sang (1979) 69 CAR 282 at 290 ‘...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.’"

Finally, a consideration rather than a principle is that the trial process itself is equipped to deal with most of the matters usually raised on an application for a stay. In Attorney General’s reference (1)/1990 the Lord Chief Justice having referred to the principles set out above said this:

"We would like to add to that statement of principle by stressing a point which is sometimes overlooked, namely that the trial process itself is equipped to deal with the bulk of complaints which have in recent Divisional Court cases founded applications for a stay."

It is against the background of those general principles that any application for a stay based on a abuse of process must be considered. We recognise that in cases where evidence has been tampered with, lost or destroyed it may well be that a defendant will be disadvantaged. It does not necessarily follow that in such a case the defendant cannot have a fair trial or that it would be unfair for him to be tried. We would think that there would need to be something wholly exceptional about the circumstances of the case to justify a stay on the ground that evidence has been lost or destroyed. One such circumstance might be if the interference with the evidence was malicious.

Here it has never been suggested that the failure to preserve the tape stemmed from malice. The judge heard evidence from the officer concerned that there was nothing on the tape to assist either side. There is not the slightest reason to suppose that the absence of the tape affected the fairness of the trial or rendered the conviction unsafe. In our judgment the trial judge was right to refuse an application for a stay and we reject the first ground of appeal.

We turn to the second ground of appeal. The application to read Emma Hatton’s statement was under section 23(2) (c) of the Criminal Justice Act 1988, namely ”that all reasonable steps have been taken to find the person who made the statement, but that he cannot be found.” The judge heard evidence about the steps taken to try to trace the witness. He considered them to have been thorough and we agree. He held that the Crown had succeeded in proving that the conditions of section 23(2)(c) had been satisfied. In reaching that conclusion he placed the burden of proof upon the prosecution and applied the criminal standard. Mr Jones does not take issue with that finding. The bone of contention is as to whether the discretion to admit the statement was exercised correctly. In approaching his decision the judge had to have regard to section 26 of the Act which required him to consider (i) the contents of the statement, (ii) any risk having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its submission or inclusion will result in unfairness to the accused and (iii) any other circumstances that appear to the court to be relevant. It is apparent from his ruling that the judge did have regard to all those matters. He acknowledged that Emma Hatton was an important witness in that she it was who gave direct evidence of the appellant’s involvement. Even so he thought it proper to allow the statement to be read. In such cases the court should always give anxious consideration to whether or not the defendant might be disadvantaged by losing the opportunity to cross examine. Nor should it be forgotten that a defendant might also lose the benefit of a possible windfall if the witness on attending turns hostile or fails to come up to proof. Since the appellant had no recollection of the events of that afternoon and evening it seems unlikely that he could have equipped Mr Jones with any ammunition for cross examination. As it seems to this court there was more to be made from the fact that the witness had failed to attend. It is almost impossible to evaluate the disadvantage of losing the chance that the witness would disaffect in the witness box. It is not something to which any judge should be required to give undue weight. All in all we cannot say that the judge exercised his discretion wrongly and we would reject that ground of appeal also. We ought also to add this. Without Emma Hatton the prosecution case remained strong. There was the evidence of the jacket which the appellant admitted to be his. There was the evidence that the woman had addressed the robber by the appellant’s first name. There was the appellant’s admission that he had spent the afternoon with Emma Hatton. Even had we thought that the judge had been wrong to allow the statement to be read we would nevertheless have remained of the view that this conviction was entirely safe.

Accordingly the appeal against conviction is dismissed.