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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Morris v Director of Public Prosecutions [2008] EWHC 2788 (Admin) (14 November 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/2788.html Cite as: [2008] EWHC 2788 (Admin), (2009) 173 JP 41 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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JAMIE MORRIS |
Claimant |
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- and - |
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THE DIRECTOR OF PUBLIC PROSECUTIONS |
Defendant |
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WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Caterina Gianota (instructed by CPS Merseyside) for the Respondent
Hearing date: 27th October 2008
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Crown Copyright ©
The Honourable Mrs Justice Slade:
i) 'Is there an automatic requirement on the prosecution to retain CCTV evidence in every case where it potentially records the administering of the statutory warning under section 7(7) of the Road Traffic Act 1988, whether or not the defence raise the giving of the warning as an issue before trial?ii) Was it unreasonable, in the Wednesbury sense, for us to have refused to allow the appeal on the grounds of abuse of process?'
In accordance with the Order of Mr Justice Collins dated 2nd July 2008, the draft statements of case of the Appellant and the Respondent have been considered together with the judgment of the Crown Court of 9th November 2007.
"A constable must, on requiring any person to provide a specimen in pursuance of this section, warn him that a failure to provide it may render him liable to prosecution."
The Facts
"In fact, the evidence in relation to the CCTV is fairly limited but appears to be as follows: we were told by the Inspector that the charging area is a large area which has a number of ports at which people are interviewed. It is covered by CCTV, although how many cameras and how they are positioned is not known. There is, apparently, one microphone which covers the whole area, which is set into, the officer gestured to the ceiling. There is no suggestion that there is a microphone at each of the ports of call at which the charging is done. The procedure that is followed in this area appears to be that the CCTV, which was in those days analogue CCTV preserved on video tape, was kept initially for 28 days, but subsequently, and through this period, apparently for three months. Thereafter, in the absence of anybody wanting to look at the tape, it was destroyed. That appears to be what has happened in this case, nobody having thought at the time that it was important to look at the tape or preserve the tape. There is no evidence that anybody looked at the tape to see whether or not it did, in fact, demonstrate any significant evidence in this case." (p3 para F – p4 para C)
"It seems to us that it was not apparent or clear that this CCTV, which was there for, I have no doubt, keeping a general eye on the charging area of the police, that any of it was relevant. This may be a side matter, but it seems to us that it is highly unlikely that anything of significance, given the nature of the microphone, the size of the area and the general activity within that area, it is highly unlikely that the precise detail of what was said, and that is really the issue in this case, would be apparent from that particular piece of evidence.
That being so, we have to consider the general authorities, and we do consider the question of the case of Ebrahim, the significance of the missing evidence is, it seems to us, open to doubt. The requirement to preserve that evidence pending the outcome of the case seems to us to be in doubt, for the reasons we have already given." (p6 para E – p7 para A)
The Questions Referred
Question (i)
'Is there an automatic requirement on the prosecution to retain CCTV evidence in every case where it potentially records the administering of the statutory warning under section 7(7) of the Road Traffic Act 1988, whether or not the defence raise the giving of the warning as an issue before trial?'
"8. Disclosure refers to providing the defence with copies of, or access to, any material which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused, and which has not previously been disclosed.
9. Prosecutors will only be expected to anticipate what material might weaken their case or strengthen the defence in the light of information available at the time of the disclosure decision, and this may include information revealed during questioning.
10. Generally, material which can reasonably be considered capable of undermining the prosecution case against the accused or assisting the defence case will include anything that tends to show a fact inconsistent with the elements of the case that must be proved by the prosecution."
"In conducting an investigation, the investigator should pursue all reasonable lines of enquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the circumstances."
"Those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence…. The judges will ensure that the Crown gets no advantage from neglect of duty on the part of the prosecution."
Question (ii)
'Was it unreasonable, in the Wednesbury sense, for us to have refused to allow the appeal on the grounds of abuse of process?'
The Authorities
"…there exists more than a fanciful chance that had this tape been available there would have been material contained on it upon which the appellant would properly have wished to cross-examine Mr Apperley. The matter is not marginal or tangential. The tape would have constituted a contemporary record of the words the officer spoke as he followed the appellant in the car."
The appeal was allowed. However Laws LJ continued:
"We make it clear that nothing is to be inferred from this judgment to the effect that a breach of the mandatory requirements of paragraph 5.1 of the code will generally or even frequently give rise to a state of affairs in which it would be right to stop the prosecution: far from it. We have emphasised the particular specific features of this case however which, upon the facts here, do properly give rise to that result."
"….. in many cases it would suffice for an appellant to show a failure on the part of the prosecutor to meet disclosure obligations so that it is reasonable to suppose such failure might have affected the outcome of the trial. …That said, even where there has been a failure on the part of the prosecution to make disclosure, this court will not regard a conviction would not be regarded as unsafe if the non-disclosure can properly be said to be of 'insignificance in regard to any real issue'." (Longmore LJ, para 57)
"9. Annexed to the papers is the 100 MG DD/A form and Mr Ley argues that the only way of circumventing the evidence of the officer would have been the CCTV. We do not accept that that analysis is accurate. Indeed, the form, which undoubtedly was signed by the appellant and was completed by the officer, contains extensively the precise questions to be asked and the order in which those questions must be asked. It was open to the Justices, having heard the sergeant, to accept that he performed his responsibilities accurately. Equally, it was open to the Justices to accept the evidence of the appellant that this task had not been done in the way the sergeant did it. Although the officer asserted that this procedure had been conducted in the custody area, if that material was not on the tape it would not have established that the procedure was not conducted properly, merely that it was not conducted in the place where it was believed to have been conducted.
10. In my judgment, it was entirely open to the Justices to conclude that this prosecution was not an abuse of process and I would answer the question stated in the negative, i.e., it was not Wednesbury unreasonable to hold that there was no abuse of process when the video recording of the breathalyser procedure had deliberately and contrary to the code of practice and a defence request been reused. We do not accept that such a recording would necessarily conclusively have proved whether or not the correct procedure had been followed at the police station."
The Divisional Court upheld the finding of the justices that the prosecution was not an abuse of process. The appeal was dismissed.
Discussion
"… given the nature of the microphone, the size of the area and the general activity within that area, it is highly unlikely that the precise detail of what was said, and that is really the issue in this case, would be apparent from that particular piece of evidence." (P6 para F)