Factual and Procedural Background
This appeal arises from a conviction in 2018 at the Crown Court in The City, where the Appellant, aged 72 at the time, was found guilty by a majority jury verdict of four counts of indecency with a child under the Indecency with Children Act 1960. The offences related to acts alleged to have occurred when the complainant was aged between five and six years old, and involved the Appellant, who was her natural uncle. The complainant and her family had a close relationship with the Appellant, who lived with the complainant's paternal grandmother.
The police first investigated the allegations in 2002 following the complainant's disclosure. An Achieving Best Evidence (ABE) interview was conducted, and the Appellant was interviewed and denied the allegations. Forensic examination of a play tent was negative, and the Crown Prosecution Service decided not to proceed due to insufficient evidence. The police file from 2002 was later damaged by water and destroyed in 2008, resulting in the loss of key original evidence including the video recording of the ABE interview.
In 2016, the complainant renewed her allegations, prompting a reinvestigation. The Appellant was convicted in 2018, sentenced, and the sentence was later increased on referral by the Attorney General. The Appellant was granted leave to appeal his conviction, principally on the grounds that the loss of the 2002 evidence caused unfair prejudice and should have led to a stay of proceedings as an abuse of process.
Legal Issues Presented
- Whether the trial judge was correct to allow the trial to proceed despite the destruction of police evidence from 2002 relevant to the Appellant's defence.
- Whether the refusal to stay the proceedings on grounds of abuse of process was lawful given the lost evidence.
- Whether the Appellant was denied a fair trial due to the missing evidence and, if so, whether this warranted a stay of the indictment.
Arguments of the Parties
Appellant's Arguments
- The loss of the original 2002 ABE interview and police file caused substantial prejudice, making a fair trial impossible.
- The truncated Index of Interview raised troubling inconsistencies and unexplored lines of inquiry, including possible misattribution of sexual knowledge and allegations to other family members.
- The missing evidence included potential contradictions in the complainant’s accounts, details about medical examinations, forensic tests, and family disclosures that could have been used to challenge the complainant's credibility.
- The Appellant contended that without the full 2002 material, he was at a serious disadvantage, particularly given the removal of the corroboration requirement in historic sexual offence cases.
- There was uncertainty about what items were seized and examined, and the absence of records prevented proper exploration of these matters.
- The Appellant submitted that the case was not strong and that the missing evidence was critical to testing the complainant’s reliability and accuracy.
Respondent's Arguments
- The trial judge’s rulings on abuse of process were impeccable and correctly concluded that a fair trial was possible.
- The prosecution provided sufficient opportunity for the Appellant to explore the key issues despite the missing evidence.
- Any prejudice was properly addressed, including through tailored jury directions.
- There were no substantive grounds to justify a stay of the indictment on abuse of process.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Anver Daud Sheikh [2006] EWCA Crim 2625 |
Possibility that a fair trial may be unachievable when relevant material is destroyed, but stay is exceptional and last resort. |
Referenced to emphasize the exceptional nature of granting a stay due to missing evidence and the importance of judicial directions. |
| R. (Ebrahim) v Feltham Magistrates' Court [2001] 2 Cr App R 23 |
Trials can proceed despite "holes" in prosecution evidence if sufficient credible evidence exists; absence of evidence does not necessarily mean unfairness. |
Applied to support the proposition that the trial should proceed when credible evidence remains despite missing material. |
| DPP v Fell [2013] EWHC 562 (Admin) |
Burden of proof for stay on balance of probabilities; stay is a last resort; missing evidence must cause serious prejudice making fair trial impossible. |
Used to affirm the high threshold for granting a stay and that the trial judge correctly applied this approach. |
| R v R.D. [2013] EWCA Crim 1592 |
Distinguishing speculation from significant missing evidence; assessment of prejudice and whether judicial directions can compensate. |
Guided the court’s analysis of the nature and impact of missing evidence on the fairness of the trial. |
| R v Allan (Christopher Mero) [2017] EWCA Crim 2396 |
Trial judge best placed to assess fairness; burden on defence to show serious prejudice; trial process usually can address issues from missing evidence. |
Supported the conclusion that the trial judge’s approach was correct and that the Appellant received a fair trial. |
Court's Reasoning and Analysis
The court acknowledged the regrettable destruction of the 2002 police file and the loss of the original ABE interview recording, recognising that the missing material might have contained relevant information to the defence. However, the court emphasised that fairness in criminal trials does not require the presence of all documentary or forensic evidence, particularly where the case is largely based on oral testimony.
The court reviewed the substantial surviving evidence, including contemporaneous documents, social services records, police interview transcripts, and evidence from family members, which provided significant material to test the complainant’s credibility and the Appellant’s defence. It noted that the trial judge gave a comprehensive and clear direction to the jury regarding the missing evidence and its potential impact on the Appellant’s case.
Drawing on established case law, the court reiterated that a stay of proceedings is an exceptional remedy, only appropriate where missing evidence causes serious prejudice making a fair trial impossible. The court found that the trial judge had correctly applied this legal standard and was best placed to assess the fairness of the trial in the context of the available evidence and the judge’s directions to the jury.
The court rejected the Appellant’s contention that the missing evidence created a real risk of unfairness, concluding that the jury was properly equipped to consider the issues and that the Appellant was not deprived of a fair trial.
Holding and Implications
The appeal is dismissed.
The court held that despite the loss of the 2002 police file and original ABE interview recording, the Appellant received a fair trial. The trial judge’s directions and the substantial remaining evidence were sufficient to allow the jury to properly assess the credibility of the complainant and the defence. There was no basis to stay the proceedings as an abuse of process. The decision directly affects the parties by affirming the conviction and allowing the prosecution to proceed despite missing historic evidence. No new legal precedent was established beyond the reaffirmation of existing principles concerning missing evidence and fairness in criminal trials.