Jersey Unreported Judgments

[2003JRC172B

ROYAL COURT

(Samedi Division)

 

6^th October, 2003.

 

 

The Attorney General

-v-

Billy Steel;

Ryan Mark Powell.

 

Assize Trial, following not guilty pleas by both Defendants to:

 

2 counts of:

Grave and criminal assault (Count 1 and 2).

 

Application by Billy Steel, before the Jury was empanelled and therefore in its absence, that CCTV footage taken at the time of the alleged grave and criminal assaults had not been seized, retained or disclosed by the Police to the Defendants and had therefore been an abuse of the process.

 

 

A.J. Belhomme, Esq., Crown Advocate.

Advocate P. Le Cornu for B. Steel.

Advocate D. Cadin for R.M. Powell.

 

 

 

JUDGMENT

 

 

THE DEPUTY BAILIFF:

1.        This is an application by Mr Le Cornu, supported by Mr Cadin, that the proceedings should be stayed as being an abuse of process.

2.        It arises in this way, the defendants are charged with two counts of grave and criminal assault on the 29^th March.  It appears that the incident started at the taxi rank at the Weighbridge when there was an altercation.  There then appears to have been some sort of chase past the Pomme d'Or Hotel and along the Esplanade towards the junction with Cattle Street.  The prosecution case is that the two defendants then set about the two victims somewhere in the vicinity of the Cassiano Restaurant.  It is then said they were seen to go back towards the Follies d'Amour nightclub and then were arrested near the entrance.

3.        It is fair to say that on the papers the evidence of the two victims is somewhat inconsistent and uncertain but there is evidence from a Mr Gray, an off-duty Centenier, who saw three men setting about the two victims and then followed them and arrested two of them near Follies d'Amour with the third having run off.  The two that he identified and arrested were the two defendants.

4.        The difficulty arises in relation to CCTV.  In the course of interview the police referred to the fact that CCTV cameras were in operation in the area.  Furthermore, on the 11^th April the advocate for Steel wrote to the police asking for CCTV evidence of the alleged incidents at the Weighbridge and the Esplanade to be made available to him.  There appears to have been no reply.  A reminder was sent on the 8^th May to the Police Legal Advisor and this suggests that there had been two earlier chasers of the original request, although Mr Le Cornu can find no trace of these and they may, therefore, have been on the telephone.  The CCTV tape has now been re-used in the ordinary way and is therefore no longer available.

5.        The Court heard evidence from DC Hill, who is the officer in the case.  He said that he viewed the CCTV tape on 1^st April.  One camera was apparently situated at Wharf Street and looked out over the Weighbridge.  A second was situated in Liberation Square and could look over the Square or up the Esplanade or up Conway Street.  Both of these cameras were, at any one moment, fixed in a particular position but they could be moved by an operator at Police Headquarters.  It follows that what they saw and recorded therefore depended on where they were facing at the material time.  Both of them took only intermittent pictures, namely every two or three seconds.  They were not therefore continuous films but would provide intermittent snap shots of what was in front of them.  DC Hill said that he looked at the film from the first camera.  He said that it was aimed at the taxi rank in the Weighbridge.  He looked for an incident and he looked for pictures of the two victims and the two defendants, but he saw nothing relevant.  He saw no incident and he did not see any pictures of either of the victims or the defendants.  He did the same in relation to the second camera.  He cannot now recall for certain where that was pointing.  He thinks that it was probably pointing so as to show a view of the area around the Follies d'Amour nightclub but he cannot recall what the range of that picture would have been.  Again, he saw no incident which he could relate to the events in this case nor was he able to identify either of the victims or either of the defendants.  He said, therefore that he did not think that the CCTV was relevant.  He therefore did not retain it or order that a copy be taken.  He said that when he was reviewing it he was looking for anything relevant to his case or relevant to the incident.

6.        The defendants say that the case should be stayed because they are placed at a material disadvantage because this very important evidence is not available.  Mr Le Cornu very helpfully referred me to a recent case which has set out the principles which are applicable where a defendant applies to stay a prosecution as an abuse of process on the grounds that videotape evidence is no longer available.  That is the case of R, on the application of Ebrahim -v- Feltham Magistrates' court heard together with Mouat -v-Director of Public Prosecutions (2001) 1 All ER 831.  The case reviewed a number of earlier unreported cases and it would perhaps be helpful to summarise it from the head note.  The court said that the first step was that a court had to ascertain whether the police were under a duty to obtain or retain the material in question.  I need not dwell on that.  This was CCTV evidence under the control of the police and clearly if there was anything relevant the police were under a duty to retain it under their common law duty, which is summarised in paragraph 12 of the judgment.  What the court said though was that, if there had been a breach of duty:

"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".

In doing so it should generally apply two well known principles, namely (1) that the ultimate objective of the discretionary power to stay proceedings is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and to the prosecution; and (2) that the trial process itself is equipped to deal with the bulk of the complaints on which applications for a stay are founded.  Furthermore, if the behaviour of the prosecution has been so very bad that it is not fair to try the defendant the proceedings should be stayed on that ground.  In that respect a useful test is to ask whether there was an element of bad faith or, at the very least, some serious fault on the part of the police or the prosecution authorities.

7.        The Court drew a distinction between two categories.  This is set out in paragraph 18 of the judgment, where it said as follows:

"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".

In relation to the former category, which it called category 1, the court at the end of its judgment said that courts should in future be guided particularly by the contents of paragraphs 25 and 28 of the judgment which reads as follows:

"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 guilty 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."

"28.  In relation to this type of case Lord Lane, CJ said in Attorney General's reference (No 1 of 1990) [1992] QB 630, 644 A-B that

"no stay should be imposed "unless the defendant shows on a 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".

That dicta, of course, related to delay but the Court of Appeal was saying it was equally applicable to cases of this sort.

8.        Category 2 is rather different.  That is in effect where the prosecution have behaved badly in one way or another and the court said in a helpful passage at paragraph 23,

"In one of the unreported cases we were shown, R -v- Swingler (unreported) 10 July, 1998, 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".

9.        Mr Le Cornu very properly said that he was not alleging bad faith by the police or the prosecution in this case although he did say that the matter could possibly be said to fall within category two as being a matter where the police had been at serious fault.  The grounds upon which he, supported by Mr Cadin, rely are as follows.

10.      First, he said that the defence had asked for the CCTV evidence but the letter never received a reply and by the time the request became known to the officer of the case it was too late to review the evidence because it had been wiped over.

11.      Secondly, he said that the police officer, when reviewing the tapes, had not taken the trouble to look at the clothing worn by the two defendants which had been seized and retained for exhibit purposes.  When he had interviewed the two defendants they had been wearing white paper clothing and therefore the police officer was at a clear disadvantage in trying to identify the defendants as compared with the defendants themselves or indeed anyone who had looked at the clothing.

12.      Thirdly, he pointed out that Mr Steel in interview had said that he could not recall the evening.  It therefore might have been particularly significant for him if he could have identified himself on the video or could have identified any witnesses that he knew who might have been able to help him.

13.      Fourthly, it was said that the police officer viewed the video for the period (as shown on the video itself) from 1.30 or 1.45 am to about 3.00 a.m.  The arrest was apparently at 3.08 a.m.  It was therefore submitted that the officer might not have looked for a long enough period, although the officer did not accept this, and it was also said that the officer did not check that the time recorded on the video was accurate.  The officer accepted that he had not made any such checks.  The upshot, say the defence is that he might not have been looking at the right period.

14.      Fifthly, the defence say that, at interview, there is reference to one or more of the defendants going to a toilet in Liberation Square and this might have shown up on the video which would have assisted their case.

15.      Sixthly, Mr Cadin said that the very fact that the police officer, despite looking at these CCTV films, saw nothing in relation to the incident, might assist the defence in casting doubt on the prosecution evidence because it appears to be inconsistent with some or more of the prosecution evidence.

16.      Finally, Mr Cadin made the point that there is apparently a further CCTV camera at the junction of Cattle Street and the Esplanade and this might have been pointing up the Esplanade and therefore might have shown the incident, or some of the incident.

17.      Mr Belhomme responded but said in effect that it was quite possible for the defendants to have a fair trial.

18.      As I say, it is quite clear that the police were under a duty to retain any material CCTV evidence.  As to whether there is a category 2 case, I find that it is not.  I do find that the police were at fault.  The fact is that they had received a letter asking to see the CCTV evidence.  Due to inefficiencies within the Police department, this letter appears not to have come to the knowledge of the officer in the case in sufficient time.  This is highly unsatisfactory.  Accordingly, I do find that the police were at fault but, in my judgment, the sort of level of fault that has been talked about so as to bring it within a category 2 case is a much more serious level of fault and therefore I do not find that this is a case which should be stayed on the ground of a category 2 case.

19.      I turn then to category 1, which is whether the defendants have shown, on a balance of probabilities, that no fair trial could be held as a result of the lack of availability of this evidence.  The Divisional Court in England made it clear that this was an exceptional course of action.  I do not find that it is exceptional in this case.  I find that it is possible for the defendants to have a fair trial.

20.      My reasons are as follows.  First, a police officer has looked at this video evidence and, acting, as I think everyone accepts, in good faith, he came to the conclusion that he could not see any trace of an incident nor could he see any of the four key players.  It is of course possible that he is mistaken but the fact is that he did not see anything and that is the best evidence we have.  Secondly, it is not clear that, even if it were available, this video evidence would help us at all, particularly on the main incident which took place somewhere around Cassiano Restaurant.  There is no clear evidence that any camera was pointing at that area and would have recorded that incident or the immediately surrounding events.  Even in relation to the events that followed it is not clear what range and locus was in the camera's view.  Thirdly, it is not clear, as a result, that Mr Cadin's point is as strong as it might otherwise have been.  Clearly, if one were satisfied that a video recording had been pointing at the very site of an incident and yet it failed to record an incident, this might cast doubt on whether the incident occurred; but because it is simply impossible to ascertain where this camera was pointing and what it may or may not have shown if we had had it available, it therefore seems to me that the fact that it did not show any incident is not so significant.  There is, I accept, a possibility that some tangentially helpful evidence to the defence may have been lost but that is inevitably a possibility whenever CCTV evidence is not available, but it is clear that that alone is not sufficient to lead to a trial being stayed.

21.      In the circumstances, I do not consider it to be one of those exceptional cases where a fair trial is not possible because of the lack of availability of the CCTV evidence.  There will be eye-witnesses.  The defence will be able to test them in the usual way.  They will also of course be able to make what they wish before the jury of the fact that the CCTV evidence has not been available.  In all the circumstances I think that the trial process is sufficient to cope with the lack of availability of the CCTV evidence.  I think that a fair trial is possible.  The defence have not shown, on the balance of probabilities, that it would not be or that there is a risk of serious prejudice.  In the circumstances, I decline to accede to the application.

Authorities

Mouat -v- D.P.P. (2001) 1 All ER 831.