R v Anglin

• Jurisdiction: Cayman Islands
• Judge: (Quin, Ag. J.)
• Judgment Date: 05 August 2008
• Court: Grand Court (Cayman Islands)
• Date: 05 August 2008

Grand Court

(Quin, Ag. J.)

R.

and

ANGLIN

Ms. N. Moore, Crown Counsel, for the Crown;

T. Buxton, Q.C., and B. Tonner for both applicants.

Cases cited:

(1) Att. Gen.”s Reference (No. 1 of 1990), [1992] Q.B. 630; [1992] 3 W.L.R. 9; [1992] 3 All E.R. 169; [1993] Crim. L.R. 37; (1992), 95 Cr. App. R. 296; 156 J.P. 593, observations of Lord Lane, C.J. referred to.

(2) Euro Bank Corp., In re, 2002 CILR 15, referred to.

(3) R. v. Beckford, [1996] 1 Cr. App. R. 94; [1995] R.T.R. 251; [1995] Crim. L.R. 712; (1995), 159 J.P. 305, referred to,

(4) R. v. Horseferry Road Mags.” Ct., ex p. Bennett, [1994] 1 A.C. 42; [1993] 3 W.L.R. 90; [1993] 3 All E.R. 138; [1994] C.O.D. 123; (1994), 98 Cr. App. R. 114, applied.

(5) R. v. Macdonald, English C.A., May 1st, 1998, unreported, dicta of Auld, L.J. followed.

(6) R. v. Sadler, [2002] EWCA Crim 1722; (2002), 166 J.P. 481, referred to.

(7) R. v. Stewart (D.), Grand Ct., November 30th, 2001, unreported, dicta of Smellie, C.J. considered.

(8) R. v. Swingler, English C.A., July 10th, 1998, unreported, referred to.

(9) R. (Ebrahim) v. Feltham Mags.” Ct., [2001] 1 W.L.R. 1293; [2001] 1 All E.R. 831; [2001] 2 Cr. App. R. 23; [2002] R.T.R. 7; [2001] Crim. L.R. 741; [2001] EWHC 130 (Admin), dicta of Brooke, L.J. applied.

Criminal procedure-fair trial-preservation of evidence-may order stay of proceedings for abuse of process if police negligence in failing to preserve evidence prejudices fair trial, or means unfair to try accused, e.g. storing and forgetting about CCTV footage-court to weigh successful prosecution of criminals against discouraging abuses of power

Criminal procedure-stay of proceedings-abuse of process-preservation of evidence-court may order stay for abuse of process if police fail to preserve evidence, even when deemed irrelevant-needs to amount to serious fault or misuse of process of court, prejudicing fair trial, e.g. storing and forgetting about CCTV footage-court to weigh successful prosecution of criminals against discouraging abuses of power

Police-preservation of evidence-negligent preservation of evidence-may order stay of proceedings if serious police failure to preserve evidence prejudices fair trial, e.g. storing and forgetting about CCTV footage

The accused was charged with attempted murder, wounding with intent to inflict grievous bodily harm and possession of an unlicensed firearm.

It was alleged that the accused had shot his victim, O, whilst he (O) sat in a car owned and driven by a Ms. W, in the early hours of the morning. The Crown relied solely on the eye-witness accounts of both O and Ms. W, which conflicted. However, following the cross-examination of Ms. W, the existence of further potential evidence came to light, in the form of footage taken from nearby CCTV cameras.

During a voir dire conducted to investigate the gathering of the evidence and the conduct of the police, it transpired that the footage had been viewed by Chief Insp. Kay, the senior investigating officer, who then instructed a Sgt. Lewis to recover it and decide upon its evidential value. However, before the trial, both the defence and Crown Counsel were told by Chief Insp. Kay, after fruitless requests for the footage to be produced, that it did not exist. Sergeant Lewis explained that he had encountered certain difficulties in recovering it (on which Crown Counsel advised, but that advice was ignored), which resulted in his only actually recovering footage from one of the four relevant cameras. It then transpired that, after eventually viewing it for himself, Sgt. Lewis came to the conclusion that it

was of no relevance or use as evidence (being very poor quality and not showing the shooting), and therefore stored it and subsequently forgot about it, as did Chief Insp. Kay.

The accused submitted that the proceedings should be stayed on the basis of the abuse of process occurring during his investigation and prosecution, which either prejudiced his ability to receive a fair trial, or meant that it would be unfair for him to be tried at all. It was caused by (a) the indolence, incompetence and dishonesty of Chief Insp. Kay, in relying on Sgt. Lewis to recover the footage and decide upon its value (during which time he ignored the advice of Crown Counsel) and then subsequently forgetting about it, all of which constituted a serious fault and/or mala fides; and (b) the way in which the police investigation in general was conducted, which constituted a manipulation of the process of the court.

The Crown submitted in reply that the application should be dismissed, because (a) although the court had a discretion to stay proceedings for abuse of process in the investigation and prosecution of accused persons, it had to balance fulfilling its duty to try such accused and discouraging abuses of power; (b) although Chief Insp. Kay had clearly made certain mistakes, it could not therefore be said that his conduct amounted to a serious fault or mala fides, so as to prejudice the defendant”s ability to receive a fair trial, especially as the footage was now available for examination, as, still, were both witnesses, and it was for the jury to decide upon the weight to attach to it; and (c) the police investigation in general did not constitute a manipulation of the process of the court, and it would not, therefore, be unfair for the defendant to be tried.

Held, dismissing the application:

A stay of proceedings would not be granted...