England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		3 March 2008

MR JUSTICE SILBER:

1. The Crown Prosecution Service appeal by way of case stated against a decision of the Lincolnshire Magistrates sitting at Grantham on 22 March 2007 by which they stayed as an abuse of process the prosecution of Martin Cooper. He had been charged with being in possession of diamorphine, a controlled drug of Class A. He had also been charged with a count of possession of criminal property contrary to section 329(1)(c) of the Proceeds of Crime Act 2002. The defendant had pleaded not guilty. The case for the prosecution was that the bank notes in the defendant's possession had been tested for the presence of heroin. It had been found by Miss Amy Forward, a forensic scientist, that they were contaminated with a higher level of heroin than was common for bank notes in general circulation. Miss Forward video-taped the entire process by which she carried out the tests on the notes. She also detected heroin on the defendant's trousers and jacket taken from him.
2. The defendant's case was that he was not guilty of either of the offences. It became clear during the different hearings that first the video of Miss Forward's evidence had been lost; and secondly, the defence were unable to carry out their own independent tests on the bank notes because they had been tested by Ms Forward with ninhydrin spray. It was on that basis that the defence made a submission that they had been denied access to material which was clearly relevant to the issues in the case. It was thus submitted in front of the magistrates that a fair trial could not take place as they had been denied the ability to rebut the expert evidence of the Crown as a result of a failure on the part of the police to preserve evidence until the conclusion of the proceedings.
3. The case therefore for the defence in front of the magistrates, as it is today in this court, was that it is an abuse of process for the trial to proceed because of the prejudice caused by the defendant. A separate limb of their application was that there had been prejudice caused by the delay. That was rejected by the magistrates and has not been the subject of any submissions today.
4. The prosecution accepted that, due to the negligence on the part of the police, the video of Miss Forward's testing of the bank notes had not been preserved. They said that a stay was not justified on the facts of the case.
5. The magistrates considered a number of cases. Their approach is set out in the case stated which states:

"We did form the opinion that the loss of the video tape together with the Ninhydrin testing of the bank notes would prevent a fair and balanced trial for Mr Cooper.

The prosecution state the exhibits were offered to the defence twice, in July 2006 and September 2006, when in fact the bank notes had by that time already been tested with the Ninhydrin spray rendering them useless for further testing. At this point the defence accept that Amy Forward could still be cross-examined by the defence expert on her notes and the video of her tests. The loss of the video tape leaves her written notes, which the defence expert contended was insufficient. We agreed with that contention. The only cross-examination of Amy Forward could have been on her written notes. We were of the opinion that those notes could not contain the same amount of detail that the video would have shown and that the defence were precluded from carrying out a more thorough cross-examination. We accepted the defence contention that experts can be mistaken, albeit unintentionally, and that the evidence of the video would be crucial in assisting us to formulate our opinion as to the reliability of her evidence. We did consider the case of R v Beckford [1996] but felt that in the present case the loss of the exhibits was crucial and that in all the circumstances Mr Cooper could not have a fair trial."

6. It is common ground between counsel that the useful starting point for considering an application of this sort is what was said by Brooke LJ when giving the judgment of the Divisional Court in R v Feltham Magistrates' Court, ex parte Mohammed Rafiq Ebrahim and Director of Public Prosecutions [2001] 1 All ER 831. In that case Brooke LJ said:

"25. Two well-principles are frequently invoked in this context when a court if 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."

Later in his judgment Brooke LJ said:

"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 own."

7. The fundamental issue in this case is whether the criminal process is in itself equipped to deal with the fact that the defendant would have been unable to carry out tests on the notes because they had been sprayed with ninhydrin and because the video of Miss Forward's examination had been lost. Mr Adam Weitzman on behalf of the defendant stresses that the exhibit in the form of a video was created by the expert and it would therefore have been very important for the defence to be able to see it so as to be able to verify what Miss Forward says about the tests which she conducted. He also submits that, so far as the Proceeds of Crime Act prosecution is concerned, whether or not diamorphine was found on the bank notes would be a matter of great importance. Thus he says that the defendant is unable in those circumstances to mount a proper defence.
8. In response, Miss Tompkins for the prosecution says that the magistrates could have taken into account the absence of this information and held it in the defendant's failure.
9. In my view the absence of evidence in this case was an impediment to the defence in their task of undermining the prosecution case and furthering the defendant's own case. Nevertheless the defendant still had adequate means to challenge the prosecution case, as Miss Forward could have been questioned about the way she conducted her tests and how she had reached her results. In addition, the magistrates would have been able to make adequate allowance for the fact that the defendant had not been able to see a video of the tests being carried out by Miss Forward or to carry out their own particular tests. If this matter had been before a jury, the trial judge would have explained to the jury that the defendant had been deprived of the opportunity of carrying out these tests and seeing how the prosecution expert had in fact carried them out. The trial judge would have directed the jury to bear this in mind as an important factor in the defendant's favour when considering his guilt. I have no doubt that such a direction would have compensated the defendant adequately for the fact that the video was no longer available and tests could not be carried out on the money.
10. In my view the justices could have approached the defendant's case in the same way. It must not be forgotten that the justices are experienced and able to deal with these matters on a sensible basis. It might well be that if the magistrates had been asked to focus a little more on what Brooke LJ had said in the Feltham case, they would have reached a decision similar to the one which I have reached.
11. The justices pose the following question for the opinion of this court:

"Were we correct, on the basis of the submissions put before us, in staying the proceedings against Mr Cooper?"

Notwithstanding the able submissions of Mr Weitzman, my answer must be in the negative.

MR WEITZMAN: My Lord, can I ask for one point of clarification? It is this. If this goes back before the Grantham Magistrates' Court, I envisage that there will be an application by the Crown Prosecution Service under the Police and Criminal Evidence Act. Your judgment, as I understand it, in no way includes that --

MR JUSTICE SILBER: No, not at all.

MR WEITZMAN: It seems to me that it was conceded by my learned friend --

MR JUSTICE SILBER: That is not an aspect that has formed any part of the case stated for the simple reason that the magistrates have not made a decision on that.

MR WEITZMAN: My Lord, do I need -- I have a costs certificate. Do I need to make an application for legal aid?

MR JUSTICE SILBER: You have a certificate, have you?

MR WEITZMAN: I have.

MR JUSTICE SILBER: In that case I make the usual order.

MR WEITZMAN: Thank you.

MR JUSTICE SILBER: Miss Tompkins, do you need to ask for any order?

MISS TOMPKINS: My Lord, I do not think so.

MR JUSTICE SILBER: Thank you both very much.

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