On the morning of 28 November 1994 the victim, a six-year-old boy, left home in his school uniform but did not arrive at school, and following day his naked body, which had been positioned in a star shape with arms and legs wide apart, was found in a local wooded area. Post-mortem examination showed that the cause of death was strangulation from behind, and that the victim had probably died on the date of his disappearance. The victim’s clothing and shoes were later found in a wheelie bin in a street near where the body had been found. Numerous items and samples were taken from the body and clothing for scientific examination, including fingernail and toenail clippings, and tape lifts from the body and from his clothing. The defendant, then aged 13, frequently truanted from school and was seen with the victim on the day of his disappearance. He was initially spoken to as a witness during the initial police investigation and told the police that he spent a short period of time with the victim on the day in question. In 1996, the victim’s mother was acquitted of his murder. Thereafter, the victim’s clothing was returned to her, and she subsequently disposed of it. The police disposed of most of the exhibits which had been recovered during the investigation and the only scientific exhibits which were retained were the tapings taken from the victim’s clothes, samples of his blood and swabs taken from his mouth and anus. Nearly two decades later, there was a full review of the evidence. The tapings recovered from the victim’s clothing were analysed using methods which had not been available at the time of the initial investigation. DNA with a profile matching that of the defendant was found on tape lifts taken from the back of the victim’s trousers and from a sleeve of his shirt. In February 2020 the defendant was charged with murder. At his trial it was submitted on his behalf that the prosecution was an abuse of process; that it was impossible for the defendant to have a fair trial because of the failure to retain exhibits, in particular the victim’s clothing and shoes, which had hindered the expert witnesses instructed by the defence to examine DNA and other material. The judge ruled against that submission. The defendant was convicted of murder. He appealed against conviction on the ground, inter alia, that the judge’s ruling was wrong.
On the appeal—
Held, appeal dismissed. Where a defendant applied to stay a prosecution as an abuse of process on the ground that relevant evidence or exhibits had not been seized, had not been retained or had been lost or destroyed the burden was on him to show, on the balance of probabilities, that it was impossible for him to have a fair trial. In most cases the trial process was equipped to deal with most of the complaints on which applications for a stay were founded. The residual and discretionary power of a court to stay criminal proceedings as an abuse of its process was one which had been held ought only to be employed in exceptional circumstances, whatever the reasons for invoking it. The phrase “exceptional circumstances” had often been used when discussing the principles applicable to applications to stay proceedings as an abuse of the process but it did not indicate a free-standing legal test. Rather, it reflected the fact that the cases in which it would be possible for an accused to show that a fair trial was impossible, and in which it was appropriate to grant a stay, were very rare. Nevertheless, the fact that such a label might not be apposite would not in itself be a bar to a stay of proceedings if—very unusually—the accused could show that the effect of the absence of evidence or exhibits was to make it impossible for him to have a fair trial. When the original investigation into the victim’s death began the Criminal Procedure and Investigations Act 1996 did not apply so that the failure to retain exhibits did not constitute a breach of any duty and the court had to focus on the effect on the fairness of the trial of evidence no longer being available. Although cases in which there had been no breach of duty, but a fair trial was impossible because of missing evidence, would be very rare, it could not be said that they would never occur. The staying of proceedings because of a category 1 abuse of the process was not a punitive jurisdiction, and there was no reason why the exercise of it should necessarily be dependent on a finding of fault. Negligence or deliberate breach of duty on the part of the police or the prosecution might be relevant to the court’s exercise of its discretion, but it was not a necessary prerequisite of it. Accordingly the judge was correct to reject the application to stay the proceedings; she rightly made a case-specific assessment of the effect of the unavailability of evidence, notwithstanding that there was no relevant breach of duty, and she was right to find that the appellant could and would have a fair trial (paras 51, 53, 57, 58, 61, 62, 64, 88).
Jenni Dempster KC and Sally Hobson (assigned by the Registrar of Criminal Appeals) for the defendant.
John Price KC and Nathan Rasiah KC (instructed by the Crown Prosecution Service, Appeals and Review Unit ) for the Crown.