Aylesbury Vale District Council v Khan & Ors

A negligent failure by a prosecuting authority to preserve potentially corroborative evidence does not, without more, constitute an abuse of process. The court must determine whether the accused would suffer irremediable prejudice or an unfair trial, and whether the prosecution was under a duty to obtain or retain the evidence. The decision to stay proceedings for abuse of process is a judgment of law, not an exercise of discretion. Where the prosecution can proceed on other evidence, the loss of additional evidence may weaken its case but does not itself justify a stay, unless the evidence was deliberately suppressed or its absence makes a fair trial impossible.

The claimant local authority appealed by way of case stated against the decision of Thames Valley Justices sitting at Aylesbury. The justices had stayed informations alleging that licensed private hire vehicle drivers had plied for hire without the required licence.

The council officers’ approaches to the vehicles had been recorded on CCTV, but the recordings were lost through negligent failure to preserve them. The justices considered the CCTV evidence crucial and treated the investigation as fundamentally flawed. The central issue was whether those circumstances were so exceptional that continuing the prosecutions would constitute an abuse of process.

1. Appeal allowed. The court answered “no” to the question stated by the justices. The proceedings before the Thames Valley Justices were to continue.
2. The justices had asked the correct legal question, but the answer was not discretionary. The High Court had to decide whether abuse of process had been established as a matter of law.
3. The principles governing failures by the prosecution to gather or preserve evidence were summarised in R v Feltham Magistrates’ Court ex parte Ebrahim, 21st February 2001. In the absence of a duty to obtain or retain the CCTV film, its loss could not make the subsequent trial unfair on that ground.
4. The council was entitled to present its case using the evidence of its investigating officers and documentary material. It did not need the CCTV film in order to prove the allegations. The loss of potentially corroborative evidence might damage the prosecution case, but the defendants had no special entitlement to rely on evidence that had never been made or retained.
5. Deliberate destruction of material inconsistent with the prosecution case could amount to abuse, but no such allegation arose. Nor had the delay in notifying the defendants been found by the justices to constitute abuse in itself.
6. Section 78 of the Police and Criminal Evidence Act concerned exclusion of evidence and did not apply to the absence of evidence. The application for costs was adjourned for further information.

• High Court (Administrative Court): appeal by case stated allowed; the stay imposed by the magistrates was set aside and the proceedings were to continue.
• Thames Valley Justices sitting at Aylesbury: informations stayed as an abuse of process.